Date of filing: 27.06.2018 Date of disposal: 22.07.2019
Complainant: Sri Shibatosh Adhikari, S/o. Late Bholanath Adhikari, resident of C/o. Mrs. Kiran Mehera, 57, R. B. Ghosh Road, PO., PS. & District: Burdwan.
- V E R S U S -
Opposite Party: M/s. Bengal Millenium Reality Group, A partnership Farm having its Registered Office at 23/15, Naktala, PS: Netaji Nagar, Kolkata – 700 047, represented by its Owners -
- Sri Debasish Sarkar, S/o. Sri Kamal Sarkar, residing at 287, Ganguly Bagan, PO: Naktala, PS: Netaji Nagar, Kolkata – 700 047.
- Sri Samir Kumar Halder, S/o. Sri Sudhir Kumar Halder, residing at 4/45, Vidyasagar, PO: Naktala, PS: Netaji Nagar, Kolkata – 700 047.
Proforma Opposite Party: 3. Sri Subhas Sarkar, S/o. Late Pronobesh Sarkar, resident of Village: Surul, PO: Sriniketan, PS: Bolpur, District: Birbhum.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Appeared for the Complainant: Ld. Advocate, Sovan Kumar & Moumita Bhattacharjee Haldar.
Appeared for the Opposite Party: Ld. Advocate, Gurudas Banerjee.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 against the Ops alleging deficiency in service and unfair trade practice as the Ops did not hand over the scheduled flat and made payment of rent as per agreement.
The fact of the case in brief is that complainant is tenant since last sixty years or so under the predecessor-in-interest of the Proforma OP-3 in respect of the entire ground floor measuring about 1200 sq. ft. in the building situated over the plot of land described in schedule ‘A’ and the complainant had been enjoying the said premises as monthly tenant under the said landlord and after his demise under the present landlord i.e. the OP-3 on payment of monthly rent. The OP-3 desired to promote and develop the said house i.e. the scheduled premises entered into an agreement with the OP-1&2. The OP-1&2 along with the OP-3 approached the complainant to quit and vacate the said premises temporarily to develop the premises. The OP-1 also agreed to offer the complainant an ownership flat in the ground floor of G+3 project measuring carpet area of 850 sq. ft. in lieu of a sum of Rs. 10,000=00 that was originally paid by complainant to landlord as premium for the said tenancy. The OP-1&2 also offered the complainant to shift to a tenanted premises nearby for two years till completion of the said project and agreed further offered that the rent of such rented accommodation would be borne by the OP-1&2 till the proposed flat delivered to the complainant and a tripartite agreement between the complainant and the OP-1&2 and OP-3 were entered into vide agreement dated 29.12.2014.
Thereafter the complainant vacated the premises and shifted to a rented house @Rs. 7,500=00 as rent per month. As per agreement the OP-1&2 initially paid rent for the months of January, February, March and April, 2015of the said tenanted accommodation, but since May 2015 the OP-1&2 requested the complainant to accept rent of Rs. 4,000=00 per month for the time being due to financial stringency but assured that within a very short time they would pay the entire monthly rent of Rs. 7,500=00 along with rest amount of outstanding rent. Unfortunately, the OP-1&2 committed breach of trust of the agreement and in fact stopped paying rent since July, 2015 entirely. The complainant was put in a precarious condition and is forced to pay the monthly rent out of his own pocket with great difficulties.
In such situation the complainant requested the OP-1&2 to complete the agreed flat and to hand over the same as early as possible but practically the OP-1&2 duped the complainant and they have no intention or concern for the problems and difficulties of the complainant.
Very recently the OP-1&2 have already raised building over the premises and carrying on the finishing works of the flats of the said G+3 building, which now appears to be G+4 building, but not a single brick has been installed in the ground floor of the said project where the complainant’s proposed flat ought to have been built. The complainant times innumerable requested the OP-1&2 to act as per the terms of the agreement to complete the ground floor flat but the OP-1&2 started killing time on one plea or others and gave assurance of delivery of the proposed flat, which seems to fake. The OP-1&2 are clearly guilty of deficiency in service and unfair trade practice.
The complainant still resides in the tenanted accommodation and has been paying rent @Rs. 7,500=00 per month from his own pocket. The petitioner has already paid Rs. 2, 69,500=00 towards rent of the tenanted accommodation. The complainant is entitled to get the said sum recovered or adjusted with the final cost of the ‘B’ scheduled building. Finding no other alternative take shelter at this Forum by filing this complaint praying to direct the OP-1&2 –Developers to hand over the ‘B’ schedule flat to the complainant, to pay Rs. 2, 69,500=00 towards payment of rent as per agreement dated 29.12.2014, to pay Rs. 2, 00,000=00 as compensation towards mental pain, agony and harassment and to pay Rs. 50,000=00 towards litigation cost.
The complaint is contested by the Ops by filing written version denying all the material allegations as alleged by the complainant in his petition of complaint. The case of the Ops is that complainant is a tenant and the agreement between the complainant and other parties is depicted the benefits, profit professions, occupation etc. of the tenant not a purchaser. Complainant never paid single paisa for the instant that thereby no consideration was passed; therefore the agreement is not a lawful contract in between the parties in the eye of law. The agreement involves tenancy disputes and grievances would not fall within the scope of Consumer Protection Act since there is no hiring of service for consideration. The complainant is not a consumer hence the complaint is not maintainable.
The Ops further stated that that the complainant is a tenant under the landlord and the liability and responsibility of landlord still prevailing but unfortunately the entire allegations are made against the principal Ops but from the agreement dated 29.12.2014 it is clear that the complainant is not a purchaser and has not paid any consideration for purchasing any flat in the project. The allegation that no brick has been installed in the ground floor for construction of the proposed flat infact there is a dispute prevailing in between the landlord, proforma OP and the principal Ops and for that the progress of work became slower and the complainant is aware of the facts. The allegation that the principal Ops have been paying the monthly rent to the complainant as shifting charge some times by cash but the complainant taking advantage of the good gesture and furnished the huge sum for squeezing money from the Ops. The Ops have prayed for dismissal of the complaint with exemplary cost.
Decision with reasons:
OP-1-M/s. Bengal Millennium Reality Group filed written version in this case and other OP-1&2 did not file any written version within 45 days and so the case is initially fixed for ex parte hearing against the Ops.
In this case M/s. Bengal Millennium Reality Group, a partnership firm has not been specifically numbered as a OP. OP Nos. 1& 2 are the developers and as per the said agreement dated 29.12.2014 OP Nos. 1& 2 are the partners of the said M/s. Bengal Millennium Reality Group and described as developers in this case. Therefore, the written version filed by the M/s. Bengal Millennium Reality Group as written version on behalf of the Ops and therefore it is filed by the developers- OP-1&2, it is within time and OP-1&2 therefore contested this case all along.
In the complaint the complainant stated that he was the tenant under Proforma OP-3 and he entered into an agreement sworn before the Notary Public of Burdwan wherein that tripartite agreement OP-1&2 and OP-3 agreed to arrange the present accommodation of the complainant in a rented house as the complainant has already vacated his tenanted portion as per the said agreement and shifted to a rented house. Complainant alleges that the OP-1&2 afterwards failed to pay the rent of the said tenanted portion of his present residence and he had to incur expenses for the rent of Rs. 7,500=00 per month since July 2015 and thereby already paid Rs. 2,69,500=00 at the time of filing of this complaint in the month of June, 2018. Nor the ground floor of the said premises as per the said agreement was constructed and handed over to this complainant as per the said agreement. In the said agreement it is stated that Rs. 10,000=00 was a premium paid by the complainant at the time of his inception of tenancy in the said house to the original owner of the said premises i.e. the predecessor of interest of Proforma OP-3. The said amount is now hold by the present owner i.e. Proforma OP-3 and OP-1&2-Developers in the said agreement dated 22.10.2014 specifically stated that on the basis of this premium amount a self-contained finished flat to be offered to the tenant free of cost and free of all encumbrances. Therefore, the present complainant filed this case as the OP-1&2 failed to deliver the said flat to this complainant as per the agreement and even alleging that the OP-1&2 did not paying monthly rent of Rs. 7,500=00 to the complainant for his present occupation in a rented house of one Ms. Kiran Mehra. Therefore, the complainant prays for realization of the said rental amount of Rs. 2, 69,500=00 paid till July 2018. The complainant also prayed for Rs. 2, 00,000=00 as mental pain and agony and Rs. 50,000=00 as litigation cost etc.
The main allegation is that the OP-1&2 are guilty for unfair trade practice and deficient and negligent in service not handing over the reschedule ground floor 850 sq. ft. flat to the complainant as per the said agreement. In the written version filed by the OP-1&2 – Developers it is specifically stated that the agreement involves tenancy dispute and grievance would not fall within the scope of C.P. Act. Since there is no hiring of service for consideration nor as to entitle the complainant to claim the status of a consumer. The complainant admittedly made no payment to the OP – 1&2. Hence, the complaint is not maintainable.
From the agreement dated 29.12.2014 it is also clear present complainant is not a purchaser nor did he pay any consideration money for purchasing any flat in the project. He claims his right as a tenant under Proforma OP-3. This dispute actually in between landlord and tenant that on false assurance of giving an accommodation in the proposed project, he voluntarily vacated the premises and went to resides in a rented accommodation.
The matter was also challenged before the Hon’ble SCDRC, WB praying for an injunction directing the OP-1&2 not to transfer the ground floor 850 sq. ft. area to any third party. The matter was disposed of by the Hon’ble SCDRC, WB with the findings that there is no existence of the scheduled flat in q1uestion as OP-1&2 – Developers did not carried out any construction of a ground floor accommodation of 850 sq. ft. in the said premises. Therefore, Hon’ble SCDRC, WB opined that an order of injunction remains vague in absence of factual existence of the property in question and the prayer of interim injunction lost its sanctity and force in absence of existence of the proposed flat covering carpet area of 850 sq. ft. as per the said agreement.
From the evidence of the complainant in this regard and from the documents filed by the parties, it is proved that there is no construction made by developer/OP-1&2 in the ground floor of covering 850 sq. ft. area and therefore any order in the form of direction upon the Ops will be infructuous at this stage. Moreover, OP-1&2 put the question that as the complainant did not pay any consideration money to the OP-1&2, therefore, hiring or purchase of service from OP-1&2 as envisaged in the C. P. Act is not cropped up in the dispute between the parties i.e. OP-1&2 and complainant to this case. Complainant therefore cannot claim to be a consumer under the Act and cannot pray for any relief against OP-1&2 in the present form of this case. Actually it is a dispute regarding tenancy right of the complainant in the premises in question with Proforma OP-3 under whom he was a tenant. As the complainant did not personally entered into any contract with OP-1&2 hiring their service as a consumer on payment of consideration money, this suit is not maintainable in its present form and the complainant is not entitled to get any relief under the Act. The complainant fails to prove his case.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 105/2018 be and the same is dismissed on contest. There is no order as to costs.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) DCDRF, Purba Bardhaman
President
DCDRF, Purba Bardhaman
(Nivedita Ghosh)
Member
DCDRF, Purba Bardhaman
