Date of filing: 21/09/2016
Date of Judgment: 04/01/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed under section 12 of the Consumer Protection Act, 1986 by Smt Meera Rani Roy against the opposite parties (referred as O.P.s hereinafter) namely (1) Sri Arindam Saha (2) Sri Sudipta Ghosh and (3) Sri Manas Sarkar alleging deficiency in rendering service on their part.
Case of the complainant in short is that she was a tenant in respect of a shop room under predecessor in interest of O.P. No. 1, namely Rash Behari Saha who died intestate on 15.12.1989. O.P. No. 1 became the owner of entire plot of land measuring an area of 03 Cattah 13 (chittak) along with kutcha dwelling unit thereon, by way of gift by other legal heirs of their share along with his own share. Thereafter O.P. No. 1 entered into a development agreement / joint venture agreement dated 10.02.2005 with O.P. No. 2 & 3 for raising a building on the said land. Subsequent to the joint venture agreement, on consideration of old tenancy of the complainant and to obtain sanction of building plan from Kolkata Municipal Corporation, opposite parties offered the complainant of giving 200 sq. ft. commercial accommodation on ownership basis on the ground floor in the proposed building and the offer was also reduced into writing in a notice dated 17/18.02.2006. In terms of notice dated 17/18.02.2006, complainant has also completed the construction of plastering walls, electrical fittings and floor. Complainant even though has been handed over the possession of the shop room but deed of conveyance in terms of agreement dated 30.09.2002, has not been executed by the O.P.s in favour of the complainant. so this complaint is filed praying for directing the O.P.s to execute and register the deed, to pay compensation of Rs. 50,000/- and litigation cost of Rs. 30,000/-.
O.P. No. 3 has contested the case by filing the written version denying and disputing the allegations contending inter-alia that the complainant was a tenant under the father of O.P. No. 1. Her said tenancy has not been determined. It is further contended that the possession of the 200 sq. ft. commercial accommodation has already been delivered. Since complainant is using the said shop room for commercial purpose, complainant cannot be a ‘consumer’ under the C.P. Act. It is also contended by the O.P. No. 3 that there has not been mention of any consideration against which ownership would be given and as no consideration paid, complainant is not maintainable. Thus O.P. No. 3 has prayed for dismissal of the complaint.
O.P. No. 1 is also contesting the case by filing the written version disputing and denying the allegations and taking the stand in similar line as taken by O.P. No. 3 in his written version that the locus standi of the complainant is still a tenant as tenancy has not been determined. Complainant is not a ‘consumer’ as shop room is used for commercial purpose and nowhere in the complaint it is stated that the complainant runs the said business for earning her livelihood by way of self employment. There is delay in filing the complaint. Thus O.P. No. 1 has also prayed for dismissal of the case.
No written version is filed by the O.P. No. 2. Thus the case has been heard exparte against O.P. No. 2.
During the course of trial both parties filed their respective examination in chief on affidavit, followed by filing of questionnaire and reply thereto.
Ultimately arguments has been advanced. Complainant as well as O.P. 1, & 3 have also filed their respective written notes of arguments.
So the following points require to be determined:-
- Whether the complainant is a consumer under the Consumer Protection Act?
- Whether there has been deficiency in rendering service on the part of the O.P.s.?
- Whether the complainant is entitled to the relief prayed for?
DECISION WITH REASONS
Point No. 1
At the very outset it may be pertinent to point out that the O.P. 1 and O.P. No. 3 had filed petitions separately challenging the maintainability of the complaint on the ground of delay in filing the complaint and that the complainant was not a ‘consumer’ under the provision of Consumer Protection Act as the shop room is utilized for the purpose of commercial purpose. The petitions were rejected by this commission and against the order dated 28.12.2016, a revision was preferred by the O.P. No. 3 before the Hon’ble State Commission. By its order dated 06.03.2018 Hon’ble State Commission dismissed the revisional application holding therein that “since the complainant who was admittedly a tenant of the demised premises entered into the agreement with the land owner and developer to have a constructed space in lieu of surrendering her tenancy, such a participant in the agreement cannot be termed other than a ‘consumer’ and the cost of surrendering her right as tenant, being an encumbrance to the title of the property should be termed as consideration for the benefit given to her as per agreement. Mere a referene with regard to shop room measuring 200 sq. ft. more or less does not debar the complainant from becoming ‘a consumer’ though the averments of the petition of complaint do not reflect that it was for earning her livelihood. We are afraid, a shop room measuring 200 sq. ft. cannot be considered to be a place for business in a large scale i.e. for commercial purposes rather it would be treated as a business for earning her livelihood.’’
Against the said dismissal of the revisional application, O.P. No. 3 being aggrieved preferred a revision before the Hon’ble NCDRC. Hon’ble National Commission by its judgement and order dated 20.08.2018 dismissed the revision and passed the following order:-
“I do not find any ambiguity in the order dated 28.12.2016 of the District forum and order dated 06.03.2018 of the State Commission. Both the Fora below have rightly dismissed the petition and appeal filed by the OP. This is not a question for fresh purchase of space that is being used for business purpose. First of all agreement entered into by the parties, is for possession of space and does not mention that space would be given for commercial purpose. However, it does indicates that complainant will be utilizing the same for business purpose as he was using the same space since year 1972 and the complaint is in respect of the non – implementation of the agreement entered between the parties. The complaint has to be seen in respect of the agreement entered between the parties, which is not a new purchase, therefore, proper adjudication has to be done by the District Forum at the time of final hearing.
Moreover, both the Fora below have given concurrent findings and scope of the revision petition is limited in the revisional jurisdiction. However, the petitioner is granted opportunity to raise the question of consumer at final hearing stage after evidence has been adduced by both the parties”.
So the order passed by the Hon’ble State Commission was though affirmed but Hon’ble National Commission gave opportunity to O.P. No. 3 to raise question of consumer at the time of final hearing.
Both parties have adduced their evidences and it appears from the record that following filing of examination in chief by the complainant, O.P. 1 & 3 filed separate questionnaires. In reply to question No. 28 & 29 put by O.P. No. 3 which appears to be in a suggestion form, complainant has replied that “The complainant reiterate that the shop room is for earning livelihood of the complainant as self employed person.”
It is further replied that “The facts and circumstances of the entire case vouch that said part of premises measuring about 200 sq. ft. was / is used for earning livelihood as self employed person like complainant did from the beginning.”
O.P. No. 1 & 3 have mainly emphasised that complainant is not a consumer as the shop room is used for commercial purpose on the ground that complainant has not stated in the complaint anywhere in the complaint that she runs the shop for the purpose of earning her livelihood. But in this contest it may be mentioned that non-mention that she runs the shop for earning her livelihood by itself, cannot be a ground to reject the claim of the complainant. Same has to be ascertained from the facts and circumstances mentioned in the complaint. It is apparent from the complaint and which is also not denied by the O.P.s. that complainant was running a wheat grinding machine in the shop room since she took it on rent in the year 1974. The shop room of 200 sq. ft. delivered to the complainant as per agreement entered into between the parties, cannot be considered to be an space so big to run the business in a large scale.
No document has been filed by the O.P.s during evidence that complainant is running the business in a large scale to earn profits. Neither any question is put by the O.P.s. to the complainant whether she has employed some persons to run her said shop or the business. So before this Commission there is absolutely no material that the shop room or the machine installed in the shop room is purely for a commercial purpose and not for the purpose of earning livelihood by the complainant. The decision of the Hon’ble Apex Court in case of Srikant G Mantri Vs Punjab National Bank, cited by the O.P.s, has no application in the given facts & situation of this case. In the said case appellant had opened an account with respondent bank, took overdraft facility to expand his business profit. Hon’ble Apex Court found the relation between the Appellant and the respondent was purely “business to business” relation. So it was held that the transaction was purely for commercial purpose. But same is not the situation in this case. The case in hand relates to merely 200 sq. ft. commercial accommodation and not running of a business in such a large scale.
With regard to the argument of O.P.s that no consideration paid or that tenancy has not been determined, it may be pointed out that relationship of the landlord and tenant which existed between O.P. No. 1 and complainant ceased to exist after execution of the agreement between the parties. After the execution of agreement, there was a new relationship of purchaser and builder / developer or service provider and when complainant handed over the portion of property in her occupation on the basis of the agreement relying on the promise that O.P.s would hand over the portion of property i.e. the shop room in lieu of handing over the possession, the same would be termed as consideration paid by the complainant to the O.P. Hon’ble National Commission in similar facts and circumstances as in this case, has held that such tenant would be a consumer under the provision of Consumer Protection Act. (Reliance is placed in case of (1) Ghansi Ram Lal Shah Vs Supriya Suhas Sarmalkar & Others and (2) Jadishben M Sneth Vs Surbhih relators India Ltd.).
Complainant has filed the agreement for sale entered into between the parties on 30.09.2002 and also the notice dated 17/18.02.2006 sent to complainant by the opposite parties. Execution of the agreement for sale and issuance of notice has not been disputed and denied by the opposite parties. It is evident from the agreement for sale that as per terms therein, O.P.s agreed to handover the shop room on ownership basis. It consists of specific term that after the transfer of the said shop room to the complainant, O.P.s will have no right title interest over the shop room. Said ‘term of handing over shop room in the newly constructed building has again been reiterated by the O.P.s in the notice dated 17/18.02.2006. Admittedly even though possession of the shop room has been handed over to the complainant but the O.P.s have not executed the deed of conveyance in favour of the complainant. So cause of action continues. In case of Saroj Khavbanda Vs Big Joss’ Estate Ltd. it has been held by the Hon’ble NCDRC that “It is now a settled legal proposition that failure to deliver possession being a continues wrong, it constitutes a recurrent cause of action and therefore so long as possession is not delivered to him, buyer can always approach a consumer forum.” So the contention of the O.P.s that this case is barred by law of limitation is devoid of any merits and thus rejected.
In view of discussion made above, complainant is a consumer under the provision of Consumer Protection Act and thus this point is thus answered accordingly.
Point No. 2 & 3
Since it is already discussed above in point no. 1 that deed of conveyance has not been executed in favour of the complainant, complainant is entitled to execution and registration of the deed in her favour as per agreement for sale. Complainant is also entitled to compensation for harassment and also as she will have to bear the cost of registration as per present market value.
Hence
ORDERED
CC/435/2016 is allowed on contest. Opposite parties are directed to execute and register the deed of conveyance in favour of the complainant in respect of shop room as per agreement dated 30.09.2002 within two months from this date. O.P.s are further directed to pay compensation of Rs. 25,000/- and litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of two months.
