Lease agreements are not covered under the Consumer Protection Act, which affects consumer status and claims for deficiency in service.

ORDER

MRIDULA ROY, MEMBER This Consumer Complaint is filed under section 17 of the Consumer Protection Act, 1986 alleging deficiency in housing construction service on the part of the Opposite Parties. Case of the Complainant in brief is that the Complainant entered into a tripartite Agreement for Lease executed on 19.05.2015 by and between the Developer i.e. the OPs herein as First Part the Land Owner as Second Part and the Complainant as intended Lessee as 3^rd Part in respect of a piece of land alongwith furnished studio apartment in the project namely Orchid Valley –Gangtok being flat no. 5 Block –A, Floor 3^rd/Apartment measuring more or less having 606 sq.ft. super built up area for the exclusive purpose of residential use for a total period of 99 years subject to execution by three parts by renewal/extension of the lease period from time to time at a consideration of Rs.19,61,554/- under certain terms and conditions including date of delivery of the property to the intended Lessee within 2 years from the date of execution of the Agreement for Lease, and in case of force majure another 6 months. The Complainant has further submitted that he had paid Rs.15,75,600/- to the OP no. 1 on different dates by cheques along with service tax of Rs.48,686/- which means Rs.16,24,286/- in total. It is further stated by the Complainant that as per terms of the Agreement for lease dated 19.05.2015 the OPs agreed to complete the construction work within 30.07.2018, i.d. they are liable to pay penal interest @12% p.a. to the Complainant. It is further submitted by the Complainant that the OP no. 1 assured the Complainant to construct the building delivery possession and execute Deed as per terms of the Agreement for Lease but he deliberately failed to do the same though Complainant repeatedly requesting even served letters dated 19.05.2017, 09.10.2017 and 28.09.2018 but the OP no. 1 did not act according to the letters. Having no alternative the Complainant has filed the instant case praying for direction upon the OP to deliver possession of the said flats/apartment in a habitable condition along with completion certificate and execute and register Deed in favour of the Complainant, to pay Rs. 10,00,000/- to the Complainant towards compensation, Rs.5,00,000/- to the West Bengal Legal Aid Fund for deficient and unfair act, Rs.50,000/- to the Complainant for cost of litigation. Notice was served upon the OPs. The OP no. 2 appeared through Ld. Advocate. Notice upon the OP no. 1 was published in a Newspaper. Subsequently, as both OPs failed to submit W/V the case was being proceeded ex parte against both the OPs.

In course of hearing Ld. Advocate has submitted that the Complainant entered into an Agreement for lease with the OPs for availing housing construction service to be provided by the OP/Developer. Accordingly, he started making payment as per the agreed terms and in this way paid Rs.16,24,686/- in total out of entire consideration of Rs.19,61,554/-. But, inspite of repeated requests the OP/Developer did not start the construction project. Hence, this case.

In support of his contention Ld. Advocate for the Complainant cited Ruling of Honourable NCDRC in Deputy Secretary, Kolkata Metropolitan Development Authority, Estate (M & M) Unit, K.M.D.A and Anr. --Petitioner -Vs- Dr. Swami Anand Giri and Anr.—Respondents [ 2024(3) CPR 126 (NC)].

Having heard submission and on perusal of the documents on record, it appears that the Complainant being intended to be a Lessee in respect of the property in question entered into a tripartite Lease Agreement dated 19.05.2015. The Complainant specifically alleged that the OPs who are First Part and Second Part of the Lease Agreement had been deviated from the agreed terms of the said Agreement for Lease and as such they are deficient in providing housing construction service.

POINTS FOR DETERMINATION:

1) Whe