07/08/15
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, Alipore, South 24-Parganas in case no.CC 229 of 2011 allowing the complaint with cost of Rs.10,000/- and directing the OP to pay the sum of Rs.3,50,000/- with interest @ 9% p.a. with effect from 26/07/11 to the Complainants as compensation in respect of shortfall in allotted area, provide two car parking spaces in the ground floor, provide completion certificate, hand over chamber measuring 100 sq. ft. in the ground floor within two months from the date of order and also to pay compensation of Rs.50,000/- within the specified time failing which the entire sum of Rs.4,10,000/- will carry interest @ 9% p.a. till realisation.
The case of the Complainant/Respondent, in short, is that the Complainants are the Owners and there was a development agreement dated 14/01/08. On 11/02/11 the OP handed over part possession of flat (western side) in the 2nd floor. Actually one flat which has been divided into two parts (north west and south west) measuring about 700 sq. ft. and 600 sq. ft. super built up area respectively. It is the allegation of the Complainant that one flat has been divided into two flats. On 11/02/11 the OP issued a possession letter wherein it was specifically mentioned that the measurement of two flats was 1650 sq. ft. and the completion certificate, car parking space and chamber measuring 100 sq. ft. would be delivered. After taking possession the Complainant found that the measurement of the two flats was 1300 sq. ft. The Complainant wrote a letter dated 25/04/11, but no reply was given. On 21/07/11 the OP proposed for settlement of the dispute and expressed inability to provide 400 sq. ft. and agreed to pay Rs.3,50,000/- for the shortfall in area. The OP handed over a cheque of Rs.1 lakh as part payment, but it was dishonoured. Under the circumstances, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that the concerned land is 6 cottahs as per development agreement, but actually it measures 5.7 cottahs. It is contended that the original Complainant was Sri Satyendra Nath Mukherjee and he gifted the property to his legal heirs and in spite of that after the execution of the deed of gift the complaint was filed by Sri Satyendra Nath Mukherjee having no subsisting interest in the property. It is contended that the Developer is also the Co-owner of the land having purchased one portion of the land from one of the Co-owners.
The Learned Counsel for the Complainants has submitted that the Complainants filed the complaint case alleging delivery of less area by the Developer. It is contended that the measurement was done and the possession was delivered on 11/02/11. It is submitted that the Complainants wrote letter to the Developer on 25/04/11 allelging delivery of less area, but to no effect.
We have heard the submission made by both sides and perused the papers on record. It appears from the complaint and the impugned judgment that Sri Satyendra Nath Mukherjee was represented by his legal heirs as Complainants. The Complainant Nos.1 to 4 being the Co-sharers have also right to file the complaint and, therefore, the contention of the Learned Counsel for the Appellant that the complaint is not maintainable as Sri Satyendra Nath Mukherjee at the time of filing the complaint had no subsisting interest, is not acceptable.
It appears from the letter written by the Appellant on 11/02/11 that there was admission about the incomplete works and the OP agreed to deliver possession to the Complainant. It further appears that the survey passed Advocate Commissioner submitted report regarding the shortfall in the area delivered by the OP to the Complainant. By the letter dated 21/07/11 the OP/Developer agreed to pay the sum of Rs.3,50,000/- following a settlement between the parties. It has further been mentioned therein that the sum of Rs.1 lakh was paid by the OP to the Complainant and the remaining amount will be paid in due course outside the agreement. It further appears from the papers on record that the cheque was dishonoured. In view of such letter dated 21/07/11 issued by the Appellant to the Respondents and dishonour of the cheque, we are of the view that the contentions raised by the Appellant are not acceptable. There is no ground to interfere with the findings of the Learned District Forum. There is no merit in this Appeal.
The Appeal is dismissed. The impugned judgment is affirmed.
