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STATE CONSUMER DISPUTES REDRESSAL COMMISSION, WEST BENGAL
Samaresh Prasad Chowdhury, Presiding Member, Mrs. Mridula Roy Member
Sri Sadhan Basak —Appellant
versus
Smt. Hasibala Roy & Anr. —Respondents
First Appeal No.FA/263/2014
(Arisen out of Order Dated 28/01/2014 in Case No. CC/1041/2009 of District Kolkata-II(Central))
Decided on 4.11.2016
Held: Therefore, when the Respondents being landowners developed/promoted the property with the assistance of developer and in the process, agreed to transfer or sell of a shop room to the tenant on consideration, certainly, the Appellants falls within the category of ‘consumer’ as embodied in Section 2(1)(d) of the Act.
(Para 15)
(B) Consumer Protection Act, 1986—Sections 15 and 17—Real estate—Development Agreement—A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect—When a party to contract disputes binding nature of signed document, it is for him to prove terms in contract or circumstances in which he came to sign documents needs to be established.
Held: We have considered the rival contention of the parties. It is trite law that the terms of the agreement are binding between the parties. A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances, in which he came to sign the documents needs to be established. The Respondents being land owners did not raise any conflict as to the terms of the agreement and the landowner has signed the agreement with open eyes in order to construct a building by demolishing the existing one and with that aim in view, the landowner had entered into agreement with the tenants so that there may not be any legal hurdle to raise the building. Therefore, the agreement is binding upon both the parties. (Para 10)
(C) Consumer Protection Act, 1986—Sections 15 and 17—Real estate—Development Agreement—Partial payment of amount of compensation by landlord-OP-respondent—District Forum dismissed complaint with penal cost of Rs.10,000/- each to be paid by Complainants to OPs—Respondents being land owners did not raise any conflict as to terms of agreement and landowner has signed agreement with open eyes in order to construct a building by demolishing existing one and with that aim in view landowner had entered into agreement with tenants so that there may not be any legal hurdle to raise building—Agreement is binding upon both parties—However, respondents had taken possession of 148 sq. ft. on ground floor without any concurrence of landlord—There is also no documents whatsoever to show that appellants have paid Rs. 70,000/- as consideration amount to landowner and have made any communication with them expressing their willingness to get the deed registered in favour of them on payment of amount of Rs.70,000/-—Complicated questions of fact and law involved in this case require adjudication through an exhaustive cross-examination by a competent Civil Court—District Forum did not commit any wrong by dismissing complaint—Order of imposition of cost of Rs. 10,000/- set aside. (Paras 4, 10, 16 to 19)
Result: Appeal Partly allowed.
Samaresh Prasad Chowdhury, Presiding Member—The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of the Complainants to impeach the order no.34 dated 28.01.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint no.1041/2009 whereby the consumer complaint lodged by the Appellants under Section 12 of the Act was dismissed with penal cost of Rs.10,000/- each to be paid by the Complainants to the Opposite Parties.
2. The Appellants herein being Complainants initiated complaint asserting that they are/were erstwhile tenants of the OPs having a goldsmith shop at Premises no.155A, Beliaghata Main Road, P.S.- Beliaghata, Kolkata – 700010. The OPs approached them for development of existing building after demolition of the structure to let it commercially viable project to serve their purpose and to provide accommodation or rehabilitation of the Complainants in their own possession. On 04.01.2007 an agreement was executed in between the parties where the OPs agreed to provide and sell 212 sq. ft. shop room at a price of Rs.70,000/- to the Complainants. It was agreed that the possession of the shop will be handed over within two months from the date of completion of construction. It has also been agreed that till completion of the construction of the shop, the Complainants will be compensated of Rs.10,000/- per month to compensate them for running the business. Accordingly, on 04.01.2007 the Complainants handed over the shop room. Ultimately, on 05.09.2008 the OPs handed over the shop room which was 148 sq. ft. in size and the Complainants were paid only Rs.69,000/- out of Rs.2,30,000/- from the amount of compensation. Hence, the Appellants approached the Ld. District Forum with prayer for certain reliefs, viz – (a) to direct the OPs to give possession of 212 sq. ft.; (b) to direct the OPs to pay the balance sum of Rs.1,61,000/- being the loss agreed to be compensated for demolition; (c) to pay compensation for harassment and mental agony; (d) Rs.50,000/- as litigation cost etc.
3. The Respondents being OPs by filing a written version disputed and denied the material allegation contending inter alia that the transaction was a sale simplicter and does not fall within the definition of ‘consumer’ as provided in the Act. The specific defence of the OPs is that the father of the Complainants was the original tenant under them and after his death, the Complainants are running the business. According to the OPs, in terms of the agreement, they were under obligation to provide a space to the Complainants subject to availability of the area as per sanctioned plan approved by the Kolkata Municipal Corporation and accordingly, OPs agreed to sell out the shop room as they were existing tenants under the OPs and also agreed to pay Rs.10,000/- as compensation for loss of their profession per month but subsequently the value of the compensation was revised on and from March, 2007 and the OP no.1 had paid Rs.7,000/- per month as compensation to the Complainants. But subsequently, Complainants possibly took possession of the alleged shop room from the developer and stopped payment of rent of Rs.175/- per month for 33 months and as such Complainants are not entitled to compensation.
4. After evaluation of the materials on record, the Ld. District Forum by the impugned order dismissed the complaint with penal cost of Rs.10,000/- each to be paid by the Complainants to the OPs, which prompted the OPs to come up before this Commission with the present appeal.
5. We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
6. Upon hearing the Ld. Advocates appearing for the parties and on going through the materials on record, it would reveal that the Appellants were tenants having a goldsmith shop under the Respondents at
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