1)      Complainant Sayyad Shaneali Nadarali resident of Chandrapur has preferred the present complaint under section 17 of Consumer Protection Act 1986.  Short facts leading to the filing of the present complaint may be stated as under :- 

2)      Complainant Sayyad Shaneali Nadarali  claims to be resident of Chandrapur and also the owner of the house of two floors on plot No.L-68 at Mouza Ramnagar. O.P.No.2 M/s Indus Tower Ltd., is a Company incorporated under Companies Act 1956 and having its office at Pune. O.P.No.1 is the Manager of M/s.Indus Tower Ltd. O.P.No.1 approached to complainant and requested for leasing out the premises admeasuring 600 sq.ft. for being used for them for erection of tower maintaining generate sets and for other materials and remaining 400 sq.ft. for other purposes. Complainant accepted the request of the O.P. and agreed to provide premises admeasuring 1000 sq.ft. on lease. Complainant also agreed to carry out construction as required by the O.P. and O.P. agreed to pay monthly rent for the demised premises. Complainant also entered in to an Agreement with O.P. and rent was fixed at Rs.22,500/- per month for the period of three years for the period from 06/04/2016 to 04/04/2019 and thereafter the same was to be increased by 15% every three years. Accordingly Leas deed was also executed. Complainant has contended that thereafter O.P. applied to the M.S.E.B. on 16/02/2013 for seeking electric connection and installing electric meter and the complainant also paid the amount demanded by M.S.E.B.. Complainant has alleged that he had spent an amount of Rs.10,00,000/- towards construction carried out for the purpose of O.P. and had also obtained necessary sanction from Municipal Corporation Chandrapur. Complainant has further contended that as per the Lease deed executed by the O.P. complainant was entitled for rent for the period of 38 months from 07/02/2013 to 06/04/2016 @ Rs.22,500/- per month amounting to Rs.8,55,000/-. Complainant was further entitled for rent for the period of 17 months from 07/04/2016 to 06/09/2017 @ Rs.25,875/- amounting to Rs.4,39,875/- Complainant was therefore entitled for total amount of Rs.12,94,875/- towards rent from the O.P. Complainant was further entitled for Rs.10,00,000/- spent towards construction. Complainant has claimed that after entering in to an agreement of Lease the O.P. did not keep his promise to pay monthly rent regularly for availing residential space nor paid the amount of Rs.10,00,000/- spent towards construction.

3)      O.P.No.1 namely Manager of M/s.Indus Tower Ltd. also did not return the copy of Lease deed duly signed by the competent authority and therefore had committed gross deficiency in service and also committed breach of the terms and conditions of the agreement. Complainant approached to O.P.No.1 and 2 on several occasions but                             

there was no response. Complainant therefore sent legal notice to O.P.Nos.1 and 2 on 23/03/2016 and on 11/04/2016 but still no action was taken.  Complainant claims to be Consumer and had alleged that there was deficiency of service on part of O.P. and so complainant was left with no option but to  file the  present Complaint under the Consumer Protection Act 1986 for seeking the relief that the said contract with O.P.Nos.1 and 2 be declared as frustrated.  Complainant has further claimed arrears of the rent amounting to Rs.12,94,875/- from 07/02/2013 to 06/09/2017. Complainant has thus claimed damages of Rs.30,00,000/- alongwith interest @ 15% p.a.. Complainant has further claim Rs.3,00,000/- by way of compensation for causing harassment and mental agony.

4)      O.P.Nos.1 and 2 have filed their written version. O.Ps. have admitted that they have approached to complainant for seeking possession of premises owned by the complainant. But O.P.Nos.1 and 2 have denied that construction was to be carried out over 1000 sq.ft. O.P.Nos.1 and 2 have denied that complainant has carried out any construction. On the contrary there was preexisting structure already on the premises. It is denied that complainant build the structure or that he had spent Rs.10,00,000/- for construction work. O.Ps. have also denied that complainant had given no objection for providing electric connection to the O.Ps. O.Ps. have denied that there was any enforceable contract between the parties. According to the O.P. the contract between the parties was never concluded as there was protest from local residents about radiation and erection of tower on terrace of the complainant. O.Ps. thereafter informed the complainant that the proposal was cancelled and the Lease agreement was never signed. Complainant was not entitled for any of the reliefs claim by him.  For the foregoing reasons O.P.Nos.1 and 2 have contended that the complaint filed by the complainant deservers to be dismissed.    

5)    I have heard Shri M.G.Burde ,learned advocate for the complainant. I have also heard Shri Motghare, learned advocate for the O.Ps. I have also gone through the evidence affidavit filed by the complainant Sayyad Shaneali Nadarali  as well as documents placed on record and also the evidence affidavit and documents placed on record by the O.Ps. In  the same way I have also gone through the written notes of argument filed by the complainant.

6)      Complainant has taken specific plea that he was a resident of Chandrapur and owner of house consisting of two floor on plot No.   L-68 at Ramnagar, Chandrapur. Complainant has contended that the Manager of O.P.No.2 M/s.Indus Tower Ltd. approached him and  requested him to  lease out the premises admeasuring 600 sq.ft. and 400 sq.ft. which was to be used for erection of Tower and for maintenance of generator sets and for keeping material. O.P.also offered to pay rent for the said premises. Complainant has taken a plea that the said agreement was reduced in to writing in the  form of lease deed which was for the  period of 20 years. Firstly it is contended by Shri Burde, learned advocate for the complainant that O.P.Nos.1 and 2 had agreed to pay rent for the said premises           @ Rs.22,500/- p.m. for  the  period from 07/04/2013 to 06/04/2016 and thereafter the rent was to be increased to Rs.25,875/- p.m. which was an increase by 15%. Accordingly lease deed came to be executed and was to be acted upon  by O.P.Nos.1 and 2. Shri Burde, learned advocate has contended that in view of this lease deed and the agreement, the complainant took several steps. According to Shri Burde, learned advocate,  looking to the offer made by O.P.Nos.1 and 2, complainant carried out construction of slab by incurring expenses to the tune of Rs.10,00,000/- approximately. Further complainant also issued no objection certificate infavour of O.P.Nos.1 and 2 for grant of electric connection.

7)      During the course of argument Shri Burde, learned advocate has drawn my attention to the various documents placed on record and more particularly the copy of lease deed which was executed on 07/02/2013. Shri Burde, learned advocate has further drawn my attention to another document namely Site Handover Form duly signed by the officer of O.P.No.2. Shri Burde, learned advocate has submitted that looking to the offer made by O.Ps., the complainant Sayyad Shaneali Nadarali  not only carried out the construction and incurred expenses but thereafter the possession of the premises was also handed over to the O.Ps. But despite this fact the O.P.No.2 did not pay any rent much less the rent at agreed rate of Rs.22,500/- and Rs.25,875/-. Shri Burde, learned advocate has on this aspect drawn my attention to the  site handover form executed by O.P.No.2 on 06/02/2013. Complainant has also placed on record one Rent Approval Form to show that the rent of premises was fixed at Rs.22,500/- p.m. In this regard the O.P.No.2 has filed its written statement. If we turn to the written statement the O.P. has categorically denied that any agreement had taken place between the parties. O.P. has specifically denied in para No.3 that the premises of the complainant was taken on lease. O.P. has also denied any liability to pay any rent to the complainant. On the  contrary the O.P. has taken plea that though there was a proposal for taking the premises the contract was never concluded. In other  word the O.P. had denied the execution of any lease deed or the existence for any enforceable contract. Further the O.P. has taken plea that the  structure constructed by the complainant was already in existence and so the question of complainant incurring any expenses for construction did not arise at all. In view of this specific denial by the O.P. regarding the execution of any lease deed  heavy burden was cast upon the complainant, who claims to be Consumer, to show that not only agreement had taken place but thereafter the lease deed was duly executed by both the parties. In this regard learned advocate for O.P. has drawn my attention to the copy of lease deed placed on record. A perusal of the copy of the lease deed would go to show that it was entered in to between the complainant Sayyad Shaneali Nadarali and Indus Tower Ltd. However, careful perusal of the lease deed, reveals that same is not duly signed by the lessee/Indus Tower Ltd. or any one authorized on their behalf. In such situation, no inference can be drawn that the lease deed, as contended by the Complainant, was duly executed by both parties so as to  became an enforceable contract or to make O.P./lessee liable for payment of rent. Shri Burde, learned advocate  for  the complainant has submitted that  complainant had requested the O.P. to get the lease deed duly signed by the officer of O.P. M/s.Indus Tower Ltd., but no heed was paid by the O.P. for which complainant was not responsible. Be that as it may, the fact remains that the lease deed on which much reliance is placed by the complainant does not bear the signature of the lessee/O.P. and so can not be said to  be duly executed at all so that any rights and liabilities can flow from the same.

8)      Shri Burde, learned advocate  has vehemently submitted that the possession of the premises was also handed over to the O.P. as per the site handover form as well as the rent approval form, copies of which are placed on record and so the complainant was entitled for the rent of the premises @ Rs.22,500/- p.m. and thereafter          Rs.@ 25,875/- p.m. However I am unable to accept this contention for the reason that the lease deed can not be termed as duly executed between the parties and so will not be admissible in evidence. Shri Burde, learned advocate has also drawn my attention to one copy of no objection certificate given to Chief Executive Officer MSEDCL for grant of electricity connection and also copy of demand note. However in my view these documents would only go to show a probability that the proposal came to be given by the O.P. namely M/s.Indus Tower Ltd., to take the premises on lease and nothing further. Both these documents filed by the complainant on record will not go to draw an  inference that there was  concluded  contract between the complainant and O.P. Complainant has himself also placed on record copies of notices issued through advocate on 23/03/2016 and 11/04/2016 directing the  O.P. to  get the lease deed signed and also  to  pay rent, but there was no response.

9)      Shri Burde, learned advocate has further contended that the complainant had also incurred huge expenses of Rs.12,65,800/- in construction of slab to be used for the  purpose of erection  of tower by the O.P. and has suffered monitory loss alongwith pain and anguish on  this aspect.  Complainant has placed on record copy of Valuation Report to show that the complainant had incurred expenses of Rs.12,62,800/-. In this connection it was incumbent upon the complainant to place on record the copies of receipts and other documents regarding incurring such huge expenses of construction but no documents are filed on record. However, it is clear that the complainant Sayyad Shaneali Nadarali was required to incur expenses for construction of premises looking to the proposal made by the O.P.            

10)    Shri Burde, learned advocate for the complainant has submitted  that the  present complainant Sayyad Shaneali Nadarali was not only Consumer being  owner of land but the O.P. had indulged in  deficiency in service by not paying the rent after entering in to an agreement and also for non payment of expenses towards construction. Further it is submitted on behalf of the complainant that the O.P. had also committed a breach of terms and conditions and so was liable to pay damages for the same. At the out set, the learned advocate for the complainant has relied upon the  case of Faqir Chand Gulati ……V/s………Uppal Agencies Pvt.Ltd and other, reported in (2008) 10 Supreme Court Cases 345  and also the case of Pawan Kumar and other.…V/s….Raheja Developers Ltd.,  reported in III (2018) CPJ 296 (NC). I have carefully gone through both these judgments. In both these cases the Hon’ble National  Commission and Hon’ble Supreme Court were dealing with agreement with builder to construct the  building on the land of the consumer who was the land owner. In the case of Pawan Kumar and other.…V/s….Raheja Developers Ltd.,  the facts were that the land was made available for development by the land owner but the construction was not completed by the builder and in that connection Hon’ble National Commission had observed that the land owner was the Consumer and builder was service provider and if there is deficiency in service in regard to construction the dispute raised by land owner will be a Consumer dispute. In that case the Hon’bel National Commission had also made reference to the observations made by the Hon’ble Supreme Court in case of Faqir Chand Gulati ……V/s………Uppal Agencies Pvt.Ltd and other,.  In case of Faqir Chand Gulati ……V/s………Uppal Agencies Pvt.Ltd and other (Cited Supra),  also the builder had agreed to carry out construction of house for land owner. In both these cases the disputes were between the land owner and the builder and the same was termed as consumer dispute. But in the present case facts are materially different as the O.P. i.e. M/s. Indus Tower Ltd., had only agreed to take the premises of complainant on lease after erecting the tower over the same. As such the case of Pawan Kumar and other.…V/s….Raheja Developers Ltd.,  (Cited Supra) on which reliance is placed by Shri Burde, learned advocate   will not go to help the case of complainant. No doubt, the complainant has failed to establish that the O.P. had executed the lease deed. But complainant has placed on record documents which only go  to show that the O.P. Indus Tower Ltd. had given a proposal to the complainant for the use of premises on lease and thereafter did not keep the said promise. O.P. has also not placed on record any documents or material as to why the lease deed was not executed and why the promise was not performed.  

11)    Complainant Sayyad Shaneali Nadarali has further claimed that  in case the prayer regarding rent can not be accepted, the contract may be declared as frustrated and the complainant is entitled for damages of Rs.30,00,000/- for the monetary loss as well as for harassment and mental agony. Complainant has also claimed Rs.3,00,000/- in addition on this count. On this aspect Shri Burde, learned advocate   for the complainant has also placed reliance on M/s.Fortune Infrstructure ….V/s……Trevor D’Lima and others, reported in 2018 (1) CPR 198(SC). I have gone through the said judgment delivered by Hon’ble Supreme Court of India. In that case the builder had refused to perform the contract and so there was a breach of contract. It was observed by the Hon’ble Supreme Court that breach of contract gives rise to action for damages, but the damages must be proved with reasonable certainty. It was further observed by Hon’ble Supreme Court that damages awarded should not be  excessive and the court/tribunal needs to take a balance approach so as to insure right compensation. In the present case before us, I find that the complainant has failed to establish the execution of lease deed and entitlement of rent. In the same way complainant is not entitled for cost of construction. But the complainant who is  Consumer has placed on record documents which go to show that the promise was made by O.P. to take the premises on lease but no enforceable contract was executed leading to not only monetary loss of the complainant but also mental pain and anguish. Complainant has thus led evidence to show that O.P. had  indulged into an unfair trade practice. In such circumstances I am of the view that complainant is entitled for damages for the financial loss sustained. Complainant has claimed damages of Rs.30,00,000/- but I feel that the same is on a much higher side. In this respect the observations made by the Hon’ble Supreme Court of India in the case of M/s.Fortune Infrstructure ….V/s……Trevor D’Lima and others (Cited Supra), are very relevant that damages can not be excessive  and balanced approach had to be adopted while granting damages. In my view after taking into consideration all aspects, the grant of Rs.10,00,000/-  by way of damages towards financial loss would meet the end of justice. Complainant is further entitled to sum  of Rs.2,00,000/- towards compensation for mental pain and agony and Rs.25,000/- towards litigation expenses. In the light of the aforesaid discussion, I proceed to pass the following order.       

                                               // ORDER // 

1. The Complaint is partly allowed.
2. Prayer of the complainant at Serial No. (i) (ii) and (iii) are hereby rejected.
3. However, Opposite Party Nos.1 and 2 are jointly and severally hereby directed to pay to complainant Rs.10,00,000/- by way of damages. Opposite party Nos.1 and 2 shall comply the aforesaid direction within a period of 30 days from the date of receipt of copy of order, failing which Opposite party Nos.1 and 2 shall be liable to pay interest @ 12% p.a. till its realisation.  
4. Opposite party Nos.1 and 2 are jointly and severally  directed to pay to the complainant Rs.2,00,000/- towards physical and mental harassment as well as litigation cost of Rs.25,000/-.
5. Copy of the order be furnished to both parties free of cost.