Date of Filing the complaint             :    13 December, 2019.

Date of Final Order / Judgement     :    17 December, 2024.

Mr.  Dhiraj Kumar Dey,   Hon’ble Member.

            This case arises when Sri Manik Guchait, hereinafter called as the Complainant, filed a complaint under Section 12 of the Consumer Protection Act, 1986 (the Act) against (1) Sri Ashim Debnath and (2) Sri Shital Maity, hereinafter called as the Opposite Parties or OPs, alleging deficiency in service on the part of the OPs for non-delivery and no-registration of the purchased shop room in the newly constructed building.

            Facts of this complaint as emerged from the complaint petition and its annexed documents are that the complainant is one of the tenants running his business in the premises measuring about 7 Cottah 13 Chittack 40 sq. ft. comprising in R. S. Dag No. 311 under R. S. Khatian No. 428, now L. R. Dag No. 323 under L.R. Khatian No. 3240 situated at Mouza Podra, J.L. No. 38, P.S.–Sankrail, District–Howrah.  He was the tenant of a shop room under the owner/OP No.–2. He entered into a registered Agreement for Sale on 18/06/2017 with the OP No.–1, which was signed by the OP No.–2 also, intending to purchase a shop room measuring about 169 sq. ft. at the ground floor of the proposed G+4 multi-storied building to be constructed by the developer/OP No.–1.  He stated that according to this agreement he paid ₹5,000/- to the OP No.–1 and ₹70,000/- to the OP No.–2.   Thereafter, according to his statement, he paid further ₹56,000/ to the OP No. – 1 out of total consideration of ₹1,86,000/-.  He then vacated his tenanted area as per assurance of the OP No.–1 to re-instate in his new shop room within 06 (six) months from the date of execution of this agreement.  It was also decided that the balance amount would be paid by the purchaser at the time of execution of Sale Deed.  After 6 months he requested the OP No.–1 to give possession of his shop room and its registration, but the OP No.–1 avoided his plea to handover possession of his shop room and its registration.  After his several persuasion, the OP No.–1 agreed to execute and register the Sale Deed in respect of his shop room and for this reason the complainant purchased a ₹5,000/- non-judicial Stamp Paper and prepared the Draft Deed of Sale and also paid the balance Stamp Duty for ₹47,745/- through online on 14/06/2019, but the OPs refused to sign in the Sale Deed.  Finding no other alternative, the complainant filed this instant complaint before this Forum/Commission praying:

            (i)         to direct the OPs to execute and register Deed of Sale and deliver peaceful possession of the schedule mentioned shop room in accordance to the agreement for sale dated 16/06/2017;

            (ii)        an amount of ₹2,00,000/- for compensation towards mental agony and prolonged harassment;

            (iii)       an amount of ₹30,000/- towards cost of proceeding, and

            (iv)       any other relief/reliefs the complainant is entitled to get in law and equity.

            Complainant filed copies of (i) the registered Agreement for Sale dated 16/06/2017 and (ii) three money receipts in one sheet showing payments of total ₹45,000/- paid to M/s. Matri Construction, but signed by the OP No.–1 as annexure to the complaint petition.

            Notices were served upon the OPs, after admission, to appear and contest the case by filing their written versions. The OPs appeared through their Ld. Lawyers and filed their respective written versions. Then the complainant filed his Evidence on Affidavit.  Thereafter the OPs failed to participate in the following proceedings despite repeated opportunities were given to them. Ultimately argument was heard in full from the complainant side and the complainant filed his Brief Notes on Argument.  The OPs did not take part in argument nor did they file any B. N. A. During scrutiny of the documents for Final Order it was found that the complainant has wrongly written the name of the OP No.–2 for which the complainant has rectified the name of the OP No.–2 through amendment. 

            We have now come to the position to deliver the Final Order in this case.  We have to decide:

            (a)        whether the complainant is a consumer under the OPs in accordance with the C. P. Act, 1986;

            (b)        whether the OP is deficient in rendering proper service to the complainant;  

and      (c)        whether the complainant is entitled to get relief(s) as prayed for.

                       Let us take these points together in our discussion to avoid repetition.

DECISION WITH REASONS

            Factual matrix emerged from the complaint and the annexed documents:

            It is the contention of the complainant that the complainant is a tenant under the owner of the premises in R.S. Dag No. 311 under R.S. Khatian No. 428, now L.R. Dag No. 323 under R. S. Khatian No.3240, J. L. No. 38 under Mouza – Podra, P. S. Sankrail, Howrah.  He entered into a registered Agreement for Sale with the OP No.–1 on 16/06/2017 for purchasing his shop room and paid ₹5,000/- in cash to the OP No.–1 at the time of the execution of this sale agreement.  He also paid ₹70,000/- in cash to the OP No.–2 as per terms and conditions of this sale agreement.  Thereafter he paid ₹56,000/- to the OP No.–1 out of total consideration of ₹1,86,000/-.  Thereafter the complainant shifted to another place and it was settled that he would be reinstated to his new shop room within 6 months and the balance amount would be paid during registration and delivery of possession of the shop room.  But he was not given possession of his shop room despite his repeated requests and ultimately his filed this instant complaint praying as stated herein above.

            Complainant has brought all his allegations in his evidence on affidavit and B. N. A.  Moreover he denied the facts stated by the OPs in their written versions in his evidence.

            Rival Submissions:

            The Opposite Party No.–1 in his written version categorically denied all the allegations put forward by the complainant.  He emphasized that the present case is false, frivolous, misconceived, harassing and non-maintainable.  He stated that the complainant was a tenant under the OP No.–2/owner of the premises who was paying monthly rent of ₹370/- for his 91 sq. ft. (approx.) shop room.  He has paid rent up to the month of March, 2017 to the owner and thereafter he was not paying any rent to the owner.  It is his averments that after execution of the sale agreement he requested the complainant to vacate his tenanted portion but he refused to vacate his shop room.  After frequent persuasion, the complainant shifted to a nearby place for which the OP No.–1 had to pay ₹50,000/- as advance to the landlord of the new accommodation and he also was paying monthly rent of ₹1,000/- from the month of March, 2018 which was later enhanced to ₹1,500/- from November, 2018 in respect of the complainant’s new accommodation.  He alleged that in spite of the new accommodation the complainant did not vacate his tenanted portion for which construction delayed for a long time.  According to the sale agreement dated 16/06/2017 the complainant would get 150.9 sq. ft. shop room out of which 109.62 sq. ft. was from owner’s share and 41.28 sq. ft. from developer’s allocation.  The OP No.–1 stated that he was always ready to transfer his share but part-allocation was impossible.  It is his statement that the actual price of the new shop room was settled at the rate of ₹2,000/- per sq. ft.  So the owner would get ₹2,18,000/- for his allocated area and the developer/OP No.–1 would get ₹82,000/-.  During execution of the sale deed the complainant paid ₹5,000/- to the OP No.–1/developer and the complainant already paid ₹70,000/- to the owner prior to this execution and the rest amount would be paid during execution of the Sale Deed.  But, according to the OP No.–1, the complainant paid nothing further to the owner till filing this case.  The OP No.–1 also expressed that it was a tenant-owner dispute which does not come under the purview of the C. P. Act, 1986 and hence liable to be dismissed.

            The OP No.–2/owner through his written version reciprocated the written version of the OP No.–1, though in his own version, and added that as he has delegated his power to the developer so question of registration from his part does not arise.

            Both the OP Nos.–1 & 2 have not participated in the next proceedings of this case by filing interrogatories, evidences, replies and B. N. A., we have nothing in hand except their written versions to analyse this case further.

             Findings:

            We have scanned and scrutinized the complaint petition and its annexed documents, written versions of the OP Nos. – 1 & 2 and the evidence on affidavit filed by the complainant and his B. N. A.  It is an admitted fact that the complainant, who is a tenant under the OP No. – 2 in the subject premises, entered into a registered Agreement for Sale with the OP Nos. – 1 & 2 on 16/06/2017 to intending to purchase a shop room in the same place of his previous shop room.  During this execution he paid ₹5,000/- to the OP No. – 1/developer and ₹70,000/- to the OP No. – 2 in cash.  It was decided that the developer would hand over his new shop room within six months from the date of this execution. He had paid further ₹56,000/- to the developer out of total consideration of ₹1,86,000/- in the mean time. But the developer failed to hand over his shop room despite his frequent requests result of which this case arises.

            A detailed scanning of the documents shows that the complainant stated in his complaint petition that he was entitled to get a shop romm in the same place in the newly constructed building of area 169 sq. ft. (approx) on the ground floor.  In the schedule of this complaint this area is mentioned as 167.19 sq. ft. (out of which 109.62 sq. ft. from the owner allocation and 57.57 sq. ft. from developer allocation).  The number of this shop room is stated to be 7.

            But the registered sale agreement stated in Page – 6, last paragraph, that the complainant would get the shop room being no. 7 in the ground floor measuring 125.75 sq. ft. build up area plus 20% super build up area total 150.9 sq. ft. shop room approx along with common facilities.  In the second Schedule of this agreement in Page – 11 the number of this shop room is stated to be 03, measuring about 150.9 sq. ft. (out of which 109.62 sq. ft. from owner allocation and remaining 41.28 sq. ft. from developer allocation).  Moreover, it was decided through this sale agreement that the complainant would payfor the developer allocation a sum of ₹2,000/- per sq. ft. for the 41.28 sq. ft. which comes to ₹82,560/- .  complainant paid ₹5,000/- on 14/06/2017 before signing this agreement as per Memo of Consideration.  So the balance amount was ₹77,560/- and the complaint paid further, as stated, ₹56,000/- out of total consideration of ₹1,86,000/-.  Complainant has not stated anything how he came to this amount though, according to the sale agreement, the total consideration would be ₹70,000/- + ₹82,560/- = ₹1,52,560/-.  Further, we have noted that in the Memo of Consideration of the sale agreement it is written that the complainant paid ₹70,000/- in cash to the owner/OP No. – 2 on 02/03/2005, which speaks that 15 years prior to execution of this agreement complainant paid this amount to the owner which is definitely during getting tenancy of his shop room in 2005 and it is stated in the agreement that this amount is considered to be the consideration for the owner allocation.  But in the written version of both the Opposite Parties that it was settled that total consideration for the suit shop room would be 150.9 sq. ft. x ₹2,000/- per sq. ft. which comes to be ₹3,01,800/->  However we have no intention to go beyond the binding terms and considerations of the sale agreement.

            So, we are of the view that the complainant has executed the sale agreement with the OPs with an intention to purchase a shop room of area 150.9 sq. ft. which the complainant has stated as 1169 sq. ft. (approx) and in the schedule of the complaint it is stated to be 167.19 sq. ft.  The number of the shop room has been stated differently in the sale agreement.  Moreover, the complainant has stated that the total consideration of his shop room was ₹1,86,000/- out of which he paid ₹1,31,000/-.  Complainant stated that he paid further ₹56,000/- to the OP No. – 1 but he annexed three receipts of ₹30,000/-, ₹5,000/- and ₹10,000/- totalling ₹45,000/- and these receipts has been issued by M/s. Matri Construction of Podra Kalitala Lane, Howrah – 711 109.  Complainant paid those amounts on 09/01/2018, 13/02/2018 and on 16/11/2018 respectively.  This depicts that the complainant has agreed to extend the time of handing over his shop room.

            Under such position we are of the view that the complaint petition bears some defects which needs to be corrected.  We cannot allow the complainant’s plea for registration and delivery of possession of the shop room of different area as is stated in the sale agreement.  We cannot allow the plea of total consideration in respect of the shop room as stated by the complainant.  Another serious point is to note that the complainant has written the Paragraph No.–7 in his amended complaint petition which is different from that stated in Paragraph No.–7 in the original complaint petition filed on 13/12/2019.

            It is, therefore,

ORDERED

            that the Complaint Case bearing No. CC/405/2019 be and the same is dismissed on contest against the Opposite Parties and with no cost.

            However, the complainant will have the liberty to file his complaint afresh after curing all defects.

            Both the parties are given liberty to get a free copy of this order.

Dictated and corrected by me

            Member.