DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __133_ _ OF ___2011
DATE OF FILING :_14.6.2011 DATE OF PASSING JUDGEMENT: 5.10.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Sri Tapan Bose, son of late Lakshmi Kanta Bose of 266/8, Taramoni Ghat Road, P.S Thakurpukur, Kolkata-41.
O.P/O.Ps : 1. Sri Sahadeb Samaddar, Prop. Of Home-Build, 73/N, Taramoni Ghat Road, Kolkata – 41 (Developer.
2. Smt. Swarnarekha Basu, wife of Parthasarathi Basu of 16, Munchipara Road, Kolkata -41, P.S Thakurpukur.
3. Smt. Sarangama Dey, wife of Nimai Ch. Dey of 30C, B.N. Roy Road (West), Natun para, Kolkata – 61.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Once this case was decreed in favour of the complainant and the O.P being dissatisfied with such decree preferred appeal before the Hon’ble State Commission and the Hon’ble State Commission was pleased to set aside the decree of this Forum by its order dated 25.8.2014 ,passed in F.A no. 74 of 2013 and to remand back the case to his Forum for deciding afresh as per Law. Now the deck is clear for passing judgment in this case and, therefore, the record is taken up.
Facts leading to the filing of the instant case may be epitomized as follows.
O.P-1 is the developer and the O.P nos. 2 and 3 are the land owners. The complainant purchased a flat measuring 400 sq.ft ( though actually 434 sq.ft) super built up area , more or less as succinctly described in 2nd Schedule to the agreement from the O.P-1 by virtue of a sale agreement dated 9.3.2006 for a total consideration price of Rs.3 lac. Complainant paid Rs.3,85,000/- to the developer as demanded by the developer. Possession of the flat was also handed over to the complainant in 2007. But no deed of conveyance has been registered by the O.Ps in favour of the complainant as yet. Therefore, alleging deficiency in service on the part of the O.Ps, the complainant prays for registration of sale deed, delivery of copies of completion certificate, drawing plan, Building Plan , Building Tax Clearance Certificate and compensation etc. Hence, this case.
O.P-1 has been contesting the case by filing written version of his statement, wherein it is mainly contended inter alia that he was forced by the complainant to mention 400 sq.ft super built up area in the agreement instead of 500 sq.ft Super Built up Area (S.B.A ), though actually the super Built up Area (SBA) of the flat was 500 sq.ft, as complainant wanted to reduce the stamp duty and Building Tax of the flat. It is also averred by the O.P-1 in the written version that some extra works were also done by him within the flat at the request of the complainant and his deceased wife. That apart, there is an extra area of 100 sq.ft SBA which is enjoyed by the complainant. No payment for the extra work and the extra area enjoyed by the complainant has been made to him and the said amount is still outstanding. As the complainant did not pay the amount due to him, he could not register the sale deed in favour of the complainant in respect of the flat , although he was always ready and willing to do the same.
O.P nos. 2 and 3 have not filed any written statement to contest the case and, therefore, the case is heard exparte against them.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged in the complaint?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit has been filed on behalf of both the parties and the same are kept in the record after consideration. Questionnaire, replies and BNA filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It is undisputed fact of the case that the possession of the flat has been handed over to the complainant by the O.P-1 in the year 2007. Thenceforth a long period of 11 years is passed away and it has not been possible for the developer i.e O.p-1 to effect registered deed of conveyance in favour of the complainant. Complainant blames the developer i.e O.P-1 for causing delay in the matter of registration of sale deed in respect of the subject flat.
But the version of the developer is otherwise. According to the developer he has done some extra works in the flat of the complainant and the complainant has made no payment to him for that extra work. It is further submitted on behalf of the developer that actual area of the flat of the complainant is 500 sq.ft (SBA) , in excess of 400 sq.ft as mentioned in the sale agreement dated 9.3.2016. The complainant pressurized him to mention 400 sq.ft SBA in the sale agreement instead 500 sq.ft SBA for the purpose of reducing the stamp duty and building clearance certificate and, therefore, the actual super built up area (500 sq.ft) of the subject flat has not been mentioned in the sale agreement dated 9.3.2006. The complainant is enjoying an area of 100 sq.ft more than what is mentioned in the sale agreement and the developer is entitled to get the price of that excess area which is enjoyed by the complainant. As the payment is not made by the complainant for the said excess area and also for the extra work done within the flat of the complainant, sale deed has not been registered in favour of the complainant with respect to the subject flat.
In the face of submission and counter submission of the parties as pointed out above, it is found that the developer i.e O.P-1 wants to make some departure from what is written in the terms and conditions of the sale agreement dated 9.3.2006. The question which arises for consideration now is whether such departure by the developer can be lawfully permissible. Such departure by the developer contradicting or adding the terms and conditions of a written agreement is not permissible in Law. Section 92 of the Indian Evidence Act, 1872 stands on the way. Section 92 of the said Act lays down that where terms and conditions of any contract is reduced into writing, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to or subtracting, from its terms.
Coming to the facts of the instant case, it is found that the terms of the contract between the parties have been reduced into writing in the sale agreement dated 9.3.2006. The super built up area of the subject flat is mentioned as 400 sq.ft and the total consideration price of such flat is mentioned as 3 Lac. The developer i.e O.P-1 does not dispute the consideration price; he only wants to contradict the super built up area of the flat. According to him, the sale agreement does not describe the super built up area in proper perspective. It should have been 500 sq.ft. Such a departure as is sought to be made by the developer is hit by Section 92 of the Indian Evidence Act and is, therefore, impermissible. A copy of sale agreement dated 9.3.2006 has been filed on record by the parties. The execution and the contents of the sale agreement is not disputed by the developer except on the area of the subject flat. Section 90 of the Indian Evidence Act lays down that the contents of a written document may be proved by the production of document itself. Regards being had to this provisions of Law, we do say that the complainant has been able to prove the contents of the sale agreement dated 9.3.2006 and we have to accept it as sacrosanct dis-regarding the departure sought to be made by the developer i.e O.P-1 and accordingly we do it.
According to the version of the developer, the total area of the subject flat of the complainant is actually 500 sq.ft and, therefore, he demands price for excess area of 100 sq.ft. An Engineer Commissioner namely Swapan Sarkar was appointed to take the actual measurement of the super built up area of the subject flat. He conducted investigation in presence of both parties and thereafter filed his ultimate report dated 11.5.2018 before the Forum. This report has been accepted by the Forum as there is nothing to disbelieve as the investigation was conducted in presence of both the parties. The report goes to establish that actually super built up area of the subject flat is 440 sq.ft approximately ( Actually 440.30 sq.ft). This report of the Engineer Commissioner goes a long way to falsify the developer’s version that the actual SBA of the subject flat is 500 sq.ft and that there is an excess area of 100 sq.ft in the said flat of the complainant. Regards being had to this aspect we feel no hesitation to say that the defence taken by the developer is a preposterous one; it has no leg to stand upon. It is nothing but a cock and bull story orchestrated by the developer so far to delay the registration of the flat in favour of the complainant.
It is the version of the complainant that the developer has forced him to pay Rs.3,85000/- as the consideration price of the flat instead of Rs.3 lac as mentioned in the sale agreement. According to him, he has paid an excess amount of Rs.85000/- to the developer and he has been compelled to make such payment to the developer ,having been pressurized by the developer. The developer does not deny receipt of Rs.3,85,000/- as consideration price from the complainant. We have already stated that the sale agreement is to be held as a sacrosanct document. That being so, it is found that the developer i.e O.P-1 has realized Rs.85000/- as excess amount from the complainant. At the same time, it comes to the surface that the actual area of the flat is 440 sq.ft (SBA) instead of 400 sq.ft as mentioned in the sale agreement. So, there is an excess area of 40 sq.ft approximately in the subject flat which the complainant has been enjoying at present. The complainant will have to make payment for this excess area of his flat.
Taking into consideration the rate at which the flat was purchased by the complainant i.e agreed rate of Rs.750/- per sq.ft, the complainant is required to pay Rs.30,000/- to the developer. On the other hand, the developer is liable to refund Rs.85000/- to the complainant, which he has received as excess consideration money from the complainant.
Then, comes the question whether the developer is entitled to the cost of extra work done by him in the flat of the complainant. It is submitted on behalf of the developer that no payment has been made by the complainant for the extra work done by him in the flat of the complainant. According to the complainant, he has paid Rs.20,000/- towards the cost of the extra work done within his flat by the developer and to prove it, he has filed a document marked Annexure “D”to his affidavit in chief dated 4.3.2015. A perusal of Annexure D reveals that the total cost for the extra work done by the developer is Rs.35000/- and that the complainant has paid Rs.20,000/- towards that cost. Annexure D is signed by the developer i.e O.P-1. So, it is established that the O.P-1 is only entitled to Rs.15000/- from the complainant for extra work done by him in the flat of the complainant.
Now ,it is found that the developer i.e O.P-1 is entitled to get Rs.45000/- only ( Rs.30,000 + Rs.15000) from the complainant on the basis of discussion as made earlier. At the same time, O.P-1 is liable to refund Rs.85000/- to the complainant and upon an adjustment being made, the complainant is found entitled to Rs.40,000/- ( Rs.85000 - Rs.45000).
O.P-1 i.e developer has taken a false and fictitious plea that he could not cause registration of the sale deed in favour of the complainant as the complainant did not pay for the extra area of 100 sq.ft ,which he has been enjoying in his flat. This plea has already been proved tobe a false and fictitious one and it has also been proved that this plea has been taken up by the developer only to cover up the delay and negligence in registration of the flat of the complainant. Such kind of unscrupulous act on the part of the developer is nothing but deficiency in service. Possession of the flat has been handed over to the complainant by the developer in the year 2007 i.e about 11 years ago. Since then, it is none but the developer i.e O.P-1 who has muddled water and has thereby exacerbated the harassment and suffering of the complainant ,resulting in mental and psychological wound which can be healed up only by applying balsam and unction of compensation to him. Through out these years the valuation of the property has also increased manifold; the stamp duty and registration fee have also jumped up pari passu. Now, the complainant will have to pay a considerable amount towards payment of stamp duty and registration fee than what he ought to have paid ,had the registration been made 11 years ago. This loss is to be suffered by the complainant for no fault of his own except the fault of the developer . The developer will have to make good the loss suffered by the complainant. In addition to these, the complainant is also entitled to registration of the deed of conveyance, completion certificate, drawing plan, building sanctioned plan and tax clearance certificate.
As the registration of the deed of conveyance has been delayed by the developer and as the O.P nos. 2 and 3 are the land owners who have entrusted the developer with the task of developing and constructing on the land, the land owners have also an obligation to effect registration of the sale deed in favour of the complainant.
In the consequence, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed exparte against the O.P no.1 with a cost of Rs.10,000/- and exparte against the O.P nos. 2 and 3 without any cost.
The following orders are passed in this case in favour of the complainant:-
- All the O.Ps are to execute and register the deed of conveyance in respect of the subject flat as described in 2nd schedule to the sale agreement dated 9.3.2006 within a month of this order.
- O.P-1 to refund Rs.40,000/- with interest @8% p.a with effect from the last date of payment i.e 26.3.2007 within the aforesaid period till full realization thereof.
- O.P-1 is also to pay a sum of Rs.50,000/- as compensation for mental agony and harassment suffered by the complainant.
- O.P-1 is further also to pay a sum of Rs.50,000/- as compensation to make good the monetary loss, suffered by the complainant owing to hike in stamp duty, registration fee.
All the payments mentioned under Serial nos. (b) , (c) & (d) above along with payment of litigation cost are to be made by the O.P-1 within a month of this order ,failing which, the cost amount and the compensation amount will bear interest @10% p.a till full realization thereof and in that eventuality the complainant is given liberty to execute the order through the machinery of this Forum.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is decreed exparte against the O.P no.1 with a cost of Rs.10,000/- and exparte against the O.P nos. 2 and 3 without any cost.
The following orders are passed in this case in favour of the complainant:-
- All the O.Ps are to execute and register the deed of conveyance in respect of the subject flat as described in 2nd schedule to the sale agreement dated 9.3.2006 within a month of this order.
- O.P-1 to refund Rs.40,000/- with interest @8% p.a with effect from the last date of payment i.e 26.3.2007 within the aforesaid period till full realization thereof.
- O.P-1 is also to pay a sum of Rs.50,000/- as compensation for mental agony and harassment suffered by the complainant.
- O.P-1 is further also to pay a sum of Rs.50,000/- as compensation to make good the monetary loss, suffered by the complainant owing to hike in stamp duty, registration fee.
All the payments mentioned under Serial nos. (b) , (c) & (d)above along with payment of litigation cost are to be made by the O.P-1 within a month of this order ,failing which, the cost amount and the compensation amount will bear interest @10% p.a till full realization thereof and in that eventuality the complainant is given liberty to execute the order through the machinery of this Forum.
Let a free copy of this order be given to the parties concerned at once.
Member Member President
