Date of filing :9.11.2017

Judgment : Dt.21.11.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Lina Mukherjee alias Leena Mukherjee alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/s Splendour Construction, (2) Sri Subrata Mandal, (3) Sri Anup Kumar Mondal, (4) Sri Patit Paban Parichha, (5) Smt. Rita Dhar, (6) Smt. Dipannita Dhar, (7) Sri Abhijit Dhar and (8) Sri Arijit Dhar.

            Case of the Complainant, in short, is that her husband namely Shyamal Mukherjee, since deceased, was a tenant under the owners namely Smt. Binaybala Dhar, Dilip Kumar  Dhar (Since deceased) and Dipak Kumar Dhar in respect of one road facing shop room having an area of 56 sq.ft. After his death, she became the tenant in respect of the said shop room as her daughter namely Sougandha Mukherjee surrendered  her tenancy in favour of the landlord. OP No.1 to 4 as developer entered into an agreement with the landlords i.e. predecessor in interest of OP No.5 & 6 and the OP No.7 & 8 on 22.1.2007 to develop their property. Subsequently, an Agreement for Sale dt.4.5.2007 was executed by and between the Developer and the Complainant in respect of a shop room in the newly constructed building at a total consideration of Rs.1,00,000/-. Complainant has paid Rs.50,000/-. The possession of her shop room  as per agreement dt.4.5.2007 has been handed over to her. But in spite of requests the OPs have not registered the sale  deed in respect of the said room in favour of the Complainant. Thus Complainant has prayed for directing the OPs to execute and register the deed of conveyance in respect of the shop room as per agreement, to pay compensation of Rs.2,00,000/- and litigation cost of Rs.30,000/-.

            Complainant has annexed with the complaint petition, Copy of the rent receipts, copy of the agreement dt.4.5.2007, money receipt, copy of the notice dt.6.10.2016, copy of reply sent by OP No.7 & 8, copy of the development agreement dt.22.1.2007, general power of attorney executed on 6.6.2009and the copy of notice dt.5.5.2016.

            OP No.1 to 4 have contested the case by filing written version contending specifically that the Complainant is not a consumer as the shop room was purchased for the commercial purposes. However, it is also contended by the OP No.1 to 4 that due to the death of owners namely Dipak Kr.Dhar and Maya Rani Dhar, power of attorney in their favour was revoked. So, they could not execute the deed of conveyance. It is also contended that Complainant has to pay the outstanding consideration of Rs.50,000/-.

OP No.5 & 6 have contested the case by filing separate written version contending, inter alia, that the Complainant is not a consumer. It is further contended by them that OP No.1 to 4 never approached the OP No.5 & 6 to either execute power of attorney in their favour, after the death of Dipak Kr. Dhar nor to execute any deed of conveyance in favour of the Complainant. So, they have prayed for dismissal of the case.

            OP No.7 & 8 have also contested the case by filing separate written version contending, inter alia, that the Complainant is not a consumer. It is further contended that after the death of their mother Maya Rani a supplementary agreement was executed with the OP No.1 to 4, wherein  it was agreed that the OP No.7 & 8 would be allotted a 404 sq.ft. flat in the ground floor. But the same has not been handed over to the OP No.7 & 8 by the OP No.1 developer and as such the complaint has been filed before the Hon’ble State Commission, which is still pending. It is also contended that a portion of 100 sq.ft. out of 404 sq.ft. has been sold to one Gour Chandra Sarkar and 150 sq.ft. to one Badal Dey by the OP developer. As the Complainant is not a consumer, they have also prayed for dismissal of the case.

            During the course of the trial both parties adduced their respective evidences followed by filing questionnaire and reply thereto and ultimately all the parties have also filed their written notes of argument.

            Ld. Advocate appearing for the Complainant has cited the case law reported in (2018) IV Supreme Court cases (C13) 467 in support of the argument that the Complainant is a consumer as the shop room is run for the purpose of earning livelihood by means of self-employment.

            Ld. Advocate appearing for OP No.7 & 8 have also cited the decision of Hon’ble NCDRC in case of (1) Tax Publisher Vs Chairman & Managing Director,           UCO Bank, CCI Chambers and (2) Cooperative Housing Society Ltd Vs Development Credit Bank Limited,  in support of the argument that when the matter requires detail evidence, civil court only has the jurisdiction.

So, following points require determination.

            1) Whether Complainant is a consumer?

            2) Whether there has been any deficiency in service on the part of the OPs?

            3) Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Point No.1 to 3

All the points are taken up together for comprehensive discussion and decision.

The claim of the Complainant that after the death of her husband she became the tenant in respect of the shop room and that subsequent to the execution of the development agreement between OP No.1 to 4 and predecessor-in-interest of OP No.5 & 6 and OP No.7 & 8, an agreement for sale was executed between her and OP No.1 to 4, the developer who also represented the owners being their constituted attorney, to sell the shop room as described in the schedule of the agreement at a total consideration of Rs.1,00,000/-, has not been disputed and denied. It is also not denied by OP No. 1 to 4 that Complainant has paid Rs.50,000/-.

Even though in the complaint, Complainant has not stated that the shop room was purchased by the Complainant to run the business for the purpose of earning her livelihood by way of self-employment, but since the very object of the Act is beneficial in nature, same has to be ascertained from the facts and circumstances stated in each case. (Reliance is placed in the decision of Hon’ble National Commission in the case of M/s Haisola Mother vs M/s National Insurance Company). In this case in hand, it is stated by the Complainant that her husband was running a business of decorating and caterers under the named and styled as M/S New Modern Decorator and Paribeshan Caterer. There is absolutely no material before this Forum that the said shop room is used only to generate the profit. It is no where stated by any of the OPs that the business of the Complainant is a large scale profit making venture and she has engaged some persons to run the business. So, in absence of any evidence in this regard merely because it is a shop room, it cannot be said that the Complainant is engaged in a large scale profit making venture and so is not a consumer.

As already highlighted above that the execution of the development agreement dt.22.1.2007 between the OP No.1 to 4 and the predecessor in interest of the OPs have not been disputed and denied. It is also not disputed that complainant purchased the shop room and she is in possession of the same.

Written versions filed by OP No. 1 to 4 and OP No. 5 & 6 suggests that they do not have objection if the deed is executed. According to OP No.1 to 4, rest of the amount was not paid to them by the Complainant and according to OP No.5 & 6 they have not been approached by the OP No.1 to 4 either for execution of general power of attorney in their favour after the death of their predecessor-in-interest or for execution of the deed of conveyance in favour of the Complainants.

Contention raised by OP No.7 & 8 is that a separate case has been filed by them before the Hon’ble State Commission against OP Developer, as they have not been handed over the flat measuring 404 sq.ft. as per the agreement dt.15.5.2009. Apparently OP No.7 & 8 have also not denied the execution of development agreement dt.22.1.2007. The agreement in favour of the Complainant was executed on 4.5.2007 much before the execution of supplementary agreement between owners including OP No. 7 & 8 and the developer on 15.5.2009. It appears from the written version as well as in the written argument filed by the OP No.7 & 8 that they have not claimed that the shop room, handed over to the Complainant by the developers covers the portion of area of their flat of 404 sq.ft. On the contrary, it is their specific claim that a portion of 100 sq.ft. out of 404 sq.ft. of their flat has been sold by the developer to one Gour Chandra Sarkar and a portion of 150 sq.ft. out of 404 sq. ft. to one Badal Dey. So, Complainant is no way related with the transfer of those portions of area allegedly sold by OP No.1 to 4 the developer to those persons named by OP No. 7 & 8 and as such as admittedly the deed of conveyance has not been executed in her favour in respect of the shop room, she is entitled to execution and registration of the same on payment of balance consideration. Since the complainant had paid only half of the consideration price but has been enjoying the shop room, we do not find any justification to allow compensation as prayed by the complainant.

            Hence

                             ordered

            CC/634/2017 is allowed on contest. OPs are directed to execute and register the deed of conveyance in respect of the shop room in favour of the Complainant as per agreement dt.4.5.2007 on payment of balance consideration of Rs.50,000/- by the Complainant, within three months from the date of this order. They are further directed to pay litigation cost of Rs.12,000/- to the complainant  within the aforesaid period of three months.