This is consumer complainant filed by Smt. Archana Ghosh against one Bipal Bhattacharjee from whom she has purchased a Residential Flat Measuring 1175 sq.ft. at a consideration Price of Rs. 21,90,000/-.

To raise a consumer Dispute, Archana Ghosh filed a case U/S 12 CP Act, 1986 before Ld. D.C.D.R.F, Siliguri where she was awarded ex-parte order. The said order was challenged by OP before Hon’ble SCDRC Kolkata Bench in appeal. The appeal was allowed as Ld. Forum has get no Pecuniary Jurisdiction. Thereafter, this case has been instituted in this bench.

The Complainant case is nut shell is that the complainant had entered into an agreement with the opposite party for purchasing a residential flat measuring 1175 square feet including 20% as super built-up area at the rate of Rs.1863/- per square feet on the 1st floor of the building being constructed by the opposite party at Shivmandir, Matigara, District Darjeeling with other facilities in terms of Clause 1 schedule "B" and schedule "C" of the said Agreement and an open car parking at the northern side of the Apartment in terms of clause 20 of the said agreement.

Copy of said Agreement, which was prepared by the opposite Party's Advocate Mr. Subodh Chandra Pal, is filed with original complaint and Marked as Annexure-"C-1.

The complainant, in consideration of the aforesaid Agreement, paid Rs. 64000/- advance at the time of said agreement and, according paid rest of Rs. 21,36,000/- to the opposite party on account of sale price Rs. 21,90,000/- for said 1175 Sq. feet flat with open car parking in and also paid Rs. 25000/- for extra work.

Copy of the money receipts for aforesaid payments are filed with the original complaint and collectively Marked as Annexure-C-2”.

But at the time of registration the Opp. party gave registration of only 1150 Sq. area in place of flat of 1175 Sq. Ft. and without open car parking. On protest the Opp. Party assured the complainant of giving of registry of short fall area and car parking after sometimes and insisted to take registry since the sale Deed was already prepared and typed on stamp paper. believing upon the aforesaid assurance of the opposite party and finding no alternative, the registration of the said sale deed was done under compulsion when the opposite party became agree for the registration of the shortfall area of the flat and that for car parking within a few times. The Opposite party also assured that he would inform the complainant regarding stipulated date for the registration of the same.

Copy of said Sale Deed, which was prepared by the opposite Party's Advocate Mr. Subodh Chandra Pal, is filed with the complaint and Marked as Annexure-"C-3",

The complainant also paid Rs.1,06,960/- by Demand Draft for payment of stamp duty and Rs. 2,35,25/- in cash for the payment of registration fee as per market value assessed by the concerned sub Registrar to the said advocate Mr. Subodh Chandra Pal, Siliguri.

But the opposite party, in spite of prolong persuasion and in spite of submission her photographs, fingerprints, original voter card and cost of registration Rs. 8000/- as part payment to the advocate Mr. Subodh Chandra Pal of the opposite party neglected and failed to sell and give possession of the shortfall area and that of car parking to the complainant thus failed and neglected to complete the sell and to handover the possession of complete area of flat and open car parking as agreed by him in terms of agreement.

The Opp. Party also neglected and failed to hand over copy of the occupancy certificate to the complainant and also to measure the area of the flat to ascertain actual area as per terms of agreement. The opp. Party also never handed over the copy of the building plan to the complainant.

Thereafter on or about in the month of February, 2017 the complainant while intending to negotiate with some buyer for the said flat on measurement of actual area of the flat she found that there is huge shortage in the area of the flat. The complainant than engaged a Civil engineer to measure the flat.

From the measurement by the said Civil Engineer, the complainant came to know that the covered area of the flat is only 860 Sq. feet and with 20% of the Super Built-up area i.e., 172 Sq. feet the total area of the flat including super Built-up area physically found, in existence, is only 1032 Sq. feet in place of 1175 Sq. feet. The area of the flat, therefore, found 143 Sq. feet (i.e., 1175-1032) less.

Copy of said measurement map is filed with the complaint and Marked as Annexure-"C-4".

The complainant then by a letter dated 17.4.2017 sent through speed post informed the opposite party regarding the aforesaid shortage of area of the flat and requested him to take initiative to solve the matter. The opposite party received the said letter but did nothing in that regard.

On 16.05.217 the complainant by one another letter sent to the opposite party through speed post requested the opposite party to take initiative to solve the said dispute but the opposite party refused to receive the said letter and did not take any initiative to solve the dispute.

Finding no alternate, the complainant finally on 19.06.2017 by a letter dated 18.06.2017 called upon the opposite party that if the opposite party failed to take initiative in the matter of the short fall area in measurement of the flat and in the matter of registration of necessary sale deed in respect of the car parking in that event the complainant shall have no alternative but to move to appropriate authority/court to get justice.

Copy of aforesaid letter dated 17.04.2017, 16.05.2107 and 18.0.2017 with respective postal receipt and track report are filed with the complaint and collectively Marked as Annexure-"C-5".

It is a matter of regret that in spite of the above the opposite party failed and neglected to initiate any step in the matter of the short fall area of the flat nor deliver and register the car parking area in terms of the agreement to the complainant nor measured actual flat in presence of the complainant.

In terms of the aforesaid agreement the opposite party was required to sale flat of an area measuring 1175 Sq. feet at the rate of Rs. 1863/- per Sq. feet with an open car parking on the northern side of the building and accordingly received full agreed amount of Rs. 21,90,000/- for the same but deliberately gave registry of 1150 Sq. feet and delivered the possession of the flat measuring only 1032 Sq. feet. Thus, the opposite party has taken excess payment of Rs. 2,66,409/- (i.e., payment for excess area of 143 Sq. feet @ 1863/- per Sq. feet). The complainant is entitled to recover the said amount from the opposite party.

The opposite party has also taken registration charges for the flat of 1150 Sq. feet whereas the measurement of the flat delivered is only 1032 Sq. feet. Thus, the opposite party has also taken excess registration charge of 143 Sq. feet amounting to Rs. 13,389/-. The complainant is also entitled to recover the said excess registration charges from the opposite party.

As the aforesaid act of the opposite party was/is not only a gross unfair trade practice, deficiency in service and malpractice but also a cheating and act of dishonesty.

The opposite party knowing fully for his unlawful gain harassment, tremendous shock, pain and mental agony besides caused financial loss to the aged widow complainant and the opposite party is, therefore, also liable to pay adequate compensation to the complainant.

Prayers of the complainant

a)    An order directing the Opp.Party to return to the complainant the excess payment of Rs. 2,66,409/- (ie. payment for shortfall area of 143 Sq. feet @ 1863/- per Sq. feet and Rs. 13389/- charged as registration expenses for the excess area of 143 Sq. Feet with interest from the receipt of the said amount and till the realization of entire amount.

b)    An order directing the opposite party to give registry to pay Rs. 50000/- for the cost of this complaint and

c)    Another order directing the opposite party to deliver possession of open car parking in terms of agreement.

d)    An order directing the opposite party to pay a sum of Rs. 50000/- to the complainant as compensation for deficiency in service, unfair trade practice, causing harassment, pain and mental agony to the complainant.

e)    Rs. 10000/- as ligation costs

The complainant was given liberty by the Hon’ble, Kolkata. Bench to Sue afresh and in due time the complaint was filed and it was admitted on merit.

The OP after receiving notice has appeared and contested the case by billing Written Version and denied all the material allegation of the complainant and contended interalia that the Opposite Party is the absolute owner of the land measuring 10(Ten) Kathas, situated in the S.P. Mukherjee Road, Shivmandir, P.O. Kadamtala, P.S. Matigara, Dist. Darjeeling which is nearly by his residential address and as per request of the local person and local well-wisher, the Opposite Party constructed the Flat over the land. It is pertinent to mention herein that the Opposite Party has no past experience for construction of flat for residential purpose of the individuals.

It is submitted that on 01.05.2012 son of the Complainant brought an agreement for sale of flat according to previous discussion including garage and money receipt was issued by the Opposite Party in favour of the Complainant which shows that total consideration of the Flat and Garage was fixed at Rs. 24,00,000/- and the Complainant made payment of Rs. 50,000/- as advance and remaining Rs. 23,50,000/- shall be payable by and on behalf of the Complainant to the Opposite Party on different occasion as mentioned in that Agreement for Sale, but the Complainant decided to purchase Flat only and accordingly value of the Flat was fixed as per the request of the son of the Complainant at Rs. 21,90,000/- And accordingly Son of the Complainant brought another set of agreement for purchase of Flat only dated 05.05.2012. Thus, in the Agreement dated 05.05.2012 nowhere it was mentioned that valuation of the open car parking space was included in the said amount of Rs. 21,90,000/-. Neither measurement and value of car parking space was mentioned on the Agreement for Sale dated 05.05.2012.

The Opposite Party likes to state that the Complainant has only paid a sum of Rs. 21,45,000/- for purchasing the Flat only out of the total consideration of Rs. 21,90,000/-. Moreover, the said amount was not included the consideration of open car parking space as valuation of the car parking space and Flat was fixed is Rs. 24,00,000/- as mentioned in the Money Receipt issued by the Opposite Party on 01.05.2012 in favour of the Complainant at the time of advance payment and agreement dated 01.05.2012.

It is pertinent to be mentioned herein that the intending purchaser Smt. Ghosh/Complainant of this case has paid the total consideration amount towards the purchase of Flat through her son as follows:

i) On 01.05.12                          before the date Rs.                                        50,000/- (By cash)     

                                                     of agreement i.e.

                                                      on 05.05.2012

ii) On 02.05.12                                                                                                      14,000/- (By Cash)

iii) On 14.06.12                                                                                               Rs. 9,00,000/- (Bank A/c)

iv) On 15.06.12.                                                                                             Rs. 10,00,000/- (Bank A/c)

v) On 18.06.12                                                                                               Rs. 1,26,000/- (Bank A/c)

vi) Before Registration Notary                                                                           Rs.55,000/- (By Cash)

 In this way the Complainant/Mrs. Ghosh has paid total Rs. 21,45,000/- through her Son towards the value of Flat only. though the price of the flat measuring 1150 Sq. ft. @ Rs. 1863 per Sq. ft. (approx.) = Rs. 21,42,450/- and the rest amount of Rs. 2,550/- have been received for providing better quality of lock of the main door for safety point of view.

It is submitted by the Opposite Party that after repeated chasing, son of Mrs. Ghosh/Complainant agreed for making the final measurement of the flat which they are in possession and residing there since 20.06.2012 and as a result the Opposite Party engaged one reputed Bachelor of Architecture named Mr. Kunal Roy of that locality having registered No. CA/99/25299 and in presence of son of the Complainant/Mrs. Ghosh and the Opposite Party, Mr. Roy measured the whole area of the flat meticulously after the exercise Mr. Roy has given his certificate in support of the area wherein it is seen that the total covered area is 973.37 Sq. Ft. and 20% of the total area as super built up area i.e. 194.67 Sq. Ft. so, the total area is 973.37 Sq. Ft. + 194.67 Sq. Ft. 1168 Sq. Ft. approx. and after being satisfied with the measurement, the son of the Complainant/Mrs. Ghosh herein had paid Rs. 55,000/- by cash as full and final consideration amount to the Opposite Party in terms of the agreement (page 3 paragraph 2) and after that the deed of conveyance was executed on 04.06.2014 in favour of the Complainant/Mrs. Ghosh. It is further mentioned that at the time of registration the Complainant/Mrs. Ghosh nor her son did raise any question in regard to the measurement as well as full consideration amount which the Complainant has paid towards the purchase of the flat.

It is further submitted that though the actual measurement of the flat of the Complainant was assessed by Mr. Roy as 1168 Sq. Ft. including 20% super built up area on the date of registration, the Opposite Party has taken money for the cost of 1150 Sq. Ft. only of the said flat including 20 % super built up area.

It is submitted by the Opposite Party that in the month of May, 2016 son of the Complainant/Mrs. Ghosh further approached to the Opposite Party for purchase of open car parking space and accordingly Opposite Party advised to the son of the Complainant/Mrs. Ghosh to submit original Voter Identity Card, cost of the registration and value of consideration of Rs. 2,10,000/- for open car parking space to the Advocate. Accordingly, son of the Complainant/Mrs. Ghosh submitted her photo, fingerprints, original Voter Identity Card and cost of the registration of Rs. 8,000/- but they neglected and refused to pay the consideration price of Rs. 2,10,000/- for the registration of open car parking space. so, that is why the process of registration of open car parking space was not completed.

It is submitted that the Opposite Party started the construction of residential flat over the land according to the plan sanctioned by the competent authority. The Opposite Party constructed straight 4 floor building and every floor having single unit, the Opposite Party constructed every floor of the building measuring area of 1168 Sq. ft. including 20% super built up area except ground floor of the said building. during construction of the said building the intending purchasers booked their flat and after completion of the said flat they were satisfied in all respect and have taken their possession within the stipulated time as per the agreement and still they are enjoying their flat and they never raised a single question in respect of measurement of the flat, quality of construction and also dealing of money transactions.

(Certified copy of Sale Deed of 4th floor of the said building filed herewith shows the measurement of the said flat i.e., 1150 sq. ft. including 20% of super built area.)

It is submitted by the Opposite Party that it is the Complainant/Mrs. Ghosh and her Son who are guilty for gross unfair practice, and also dishonestly brings false allegations against the Opposite Party for their wrongful gain for getting registration of Car parking space free of cost.

It is crystal clear by the aforesaid acts and activities of the Complainant/Mrs. Ghosh and her Son are done all these for their unlawful gain, which caused harassment, tremendous shock and mental agony besides financial loss to the aged Opposite Party, who is suffering various old age illness and the Complainant/Mrs. Ghosh is liable to pay adequate compensation to the Opposite Party.

The complainant side has adduced evidence by swearing affidavits and Process of cross examination was exhausted through interrogatories and reply. The OP also tendered evidences by abbidavit and he also tarnished the reply on the interrogatories to the complainant

Both sides have Produced Material documents they relied upon in support of their case. The Both Parties has been represented in this case through the Ld. legal counsel and also furnished WNA and canvassed arguments.

                                                       Points for Decision

(1) is the instant consumer complaint maintainable in its, proper form and Law?

(2) 15 the case be barred by see 24A of CP ACT, 1986?

(3) Has The complainant cause of action to institute the consumer case?

(4) Is the complainant entitled to get relieves as prayed for?

                                                 Decision with reasons

Point No 1. to 3 : The Consumer Complaint admitted on merit at first instance instituted before The Ld. Forum and Ex-prate order in the shape of award delivered by the Forum.

Subsequently, in appellate stage it was determined that due to want of pecuniary Jurisdiction, the order of Ld. Forum was found bad in law and the Hon’ble the appeal court had given the liberty to file a fresh consumer complaint before the appropriate forum having Pecuniary jurisdiction. So, the case registered here and it was admitted in due course and as a consumer defined in Sec 2 (d) of CP Act, 1986, the complainant has right cause of action and the case has not been barred by limitation and no defect is found in law in registering the consumer Complaint,

 So, all these points are answered in favour of the complainant.

Point No 4:

Admitted Position is that the complainant and OP of this case had an agreement (Annex - C-I) executed by both parties where to measure of the Flat mentioned 1175 sq.ft. which included 20% of the super build area. (Clause I of the agreement).

Clause 1 and 2 of agreement denotes the price of the Flat was settled at Rs 2,90,000/- and Per Sq Feet was fixed at Rs 1863. Clause 20 of the agreement denotes that OP would Provide one open car parking space to the Northern of The Flat of the complainant.

 According to the case of the content that instead of 1175 sq.ft only 1150 sq. feet including super build area was provided in sale deed and no car parking space was provided.

On the other hand, the OP contends that there was separate agreement for car parking space and as the complainant did not Pay any farthing for car parking space, question of car parking space does not arise.

The Further case of the OP is that actually beside Super built area, the Proportionate Space of Stair case was included in the allotted area of the complainant for which actually there was agreement of 1150 sq. feet, but to due to inadvertent of deed writer and beyond the Knowledge of the OP, in agreement (Annex - C-1) the area measurement was wrongly inserted 1175 Sq. Feet.

Ld. Advocate of the complainant mentioned the Opp. Party intentionally did not produce building plan and occupancy certificate, even before this Ld., Commission, obviously to hide actual measurement of the flats whereas he has himself admitted in para 2.1 of his appeal before the Hon'ble Stare Commission as well as in para 1 of his answer to questioner that he is a reputed Govt. licensed Civil Contractor since 1980 and contrary to that in his written version in sub para 2 of para 8 that he has no past experience for construction of flat. The version of the Opp. Parties in the present case is full of lies and, therefore, casts complete shadow on his credentials and integrity.

The Opp. Party came up with all irrelevant and baseless cock story to somehow defend his unfair dealing and malpractice done deliberately by him with old aged widow lady for his illegal gain.

On the other hand, the complainant case is totally based on documentary evidence. The terms of the agreement are quite transparent. It is in clear terms written that the Opposite Party became agree to sell flat of 1175 sq. ft. including 20% super built up area together with an open car parking space on the northern side and proportionate share in land and common area as specifically mentioned in Schedule "B" and "C" of the agreement @ of Rs. 1863/- per sq. ft. and accordingly received Rs. 21,90,000/- as per money receipts but only gave possession of flat of 860 Sq. Feet with 20% of super-built i.e., 172 sq. ft. thus gave possession of total 1032 Sq. Ft. in place of 1175 sq. ft. in this manner gave short possession of 143 sq. ft. and also not gave possession of open parking and in scrupulously compelled the poor old widow to pay registration charges and stamp duty for 1150 sq. ft. in place of actual area of 1032 sq. ft.

The D.W. 2 admitted in his reply to questioner that he has prepared the agreement to sell as per terms and condition agreed upon and he also admitted that he has drafted sale documents of the other flats of the Opp. Party and, therefore, it I can be well presumed that he was engaged by the Opp. Party and the sell documents were prepared as per instructions of the Opp. Party and Opp. Party himself is liable for unfairness in terms and ambiguity, if there is any,

The settled position is that the common area such as stair case, path way cannot be included in area of flats. Buyers of flat are entitled to share such area in common with other buyer being specified percentage of super-built-up area. The developer and promoter cannot sell the common area such as stair cases to an individual buyer.

The Ld. Advocate of the Complainant in terms of the merit of this case relied upon the decision and laws as follows

Nahalchand Laloochand P.Ltd vs Panchali Co-Op.Hng. Sty.Ltd decided on 31 August, 2010 wherein In Hon'ble Supreme Court held that the promoter has no right to sell any portion of common area or facilities of such building which is not flat'.

He refers the West Bengal Apartment Ownership Act where in sec. 3 the flat and common area defined specifically. Common area which includes stair case and which is not saleable.

Id Advocate of the complainant further mentioned that in agreement (Annex C-1) space of stair case and landing was kept for common use for the dwellers.

Ld. Advocate of the OP submits, that it was agreed in annex-C-1 that according to clause contain in para 2 page 3 of agreement, "final measurement of the flat will be made on completion of the same and total consideration will be assessed accordingly @ Rs. 1863/- (Rupees One thousand eight hundred sixty-three only) per sq.ft. (approx.) for the total area of flat by and between parties" accordingly remaining/balance amount shall be paid by the complainant at the time of registration and opposite party is bound to registered the flat on or before March, 2013.

 That after several remainder and intimation son of the complainant agreed for measurement and flat was measure in his presence by Bachelor of Architect, Mr. Kunal Roy and it seen that total covered area 973.37 sq.ft and 20% of the total area as super built up area i.e., 194.67 sq.ft. so the total area of flat is 973.37 sq.ft.+ 194.67 sq.ft. 1168 sq. ft approx. and O.P. decided to sold 1150 sq.ft. as he sold same area to the other buyer of same building and after being satisfied with measurement, the son of the complainant had paid Rs. 55,000/- by cash as full and final payment for flat out of which Rs. 2,550/ paid for better quality lock in the main door of her flat.

That the son of the complainant paid necessary charges for registration to the advocate and asked him to prepared sale deed for registration of flat measuring about 1150 Sq.ft. accordingly sale deed was prepared and at the time of registration complaint come and opposite party execute sale deed in favour of complainant on 04.06.2014 as per terms of agreement dated 05.05.2012.

That after few months from registration, son of the complainant demanded registration of car parking space but when opposite party demanded consideration for car parking space, son of the complainant was silent about consideration for car parking space.

After going through the agreement to sale (annex ‘C’-1) very carefully, it is revealed that the Complainant was agreed to pay Rs. 21,90,000 for a flat measuring 1175 sq.ft. including super Build area of 20% at the rate of Rs. 1863 per sq. ft.

In the agreement there was no mention that price of car parking was fixed or included with Rs. 21,90,000/-.

On the other hand, the deed of conveyance has no whispering in respect of provision of any car parking space stipulated in the deed of agreement. Deed of sale is the continuity of agreement culminated into sale and registration of the property in the name of buyer.

Deed of sale also contains a clause regarding common area and facilities in annexure-2 of schedule-B where stair case was included in the common area.

The question is whether stair case should be included within super build area or not. Ld. Advocate of the OP refers a Judicial decision of Hon’ble NCDRC in Harpal Arya Vs Housing Board, Haryana in R.P. No.3338 of 2007, where it was held that when a builder sells flat to a buyer and provides him with a stair case then the buyer has to pay the same and proportionate area of the loading and stair case has to be included in the super Build area.

Ld. Advocate of the Complainant mentioned that as per provision of W.B. apartment ownership Act,1972, the stair case and landing to be included in common area.

            Rather, in the agreement to sale(annex-C-1) there is clear cut mention that common area to be excluded from super build area and stair case and landing was to be included in common area, then, the builder has the bounden duty to handover possession of the actual area which he conceded in the agreement. So as per terms of agreement the OP has the responsibility to provide the complainant 1175 sq.ft. area in the flat which included 20% as super build area.

The Complainant in this case by furnishing the money receipts could successfully proved that she has paid the entire consideration money of the agreement as per schedule to the tune of Rs. 21,90,000/- for purchasing the 1175 sq.ft. flat, while the OP in this case all along contended that including the super build area, the agreement to sale was held for flat measuring 1150 Sq.ft but actually provided 1164 Sq. ft. and price was settled at Rs. 21,45,000/-. But this counter claim of the OP has successfully rebutted by documentary evidence on the part of complainant and she has successfully proved that after deduction of Super build area of total measuring 1175 Sq.ft., She ought to have provided 940 sq.ft carpet area in the flat but physically she was provided only 860 sq.ft. that is short fall of 80 sq.ft.in resultant the Monetary loss of the complainant was Rs. 1863X80 sq.ft. = 149,040/-

The Complainant claims that excess registration cost was obtained from her to the tune of Rs. 13,389/-.

But this allegation has no practical acceptability as because the registration cost and stamp duty of this flat was held for 1150 sq.ft. flat and govt has realized the said cost of registration and no personal gain was there on the part of OP.

The claim of the complainant for direction upon OP for open car parking space or in default compensation has not been substantiated as no separate cost for such car parking space was realized or obtained by OP from Complainant.

The act and conduct of the OP and for not providing the proper service to the consumer the Op is liable to compensate the complainant as per provision of CP Act. Thus this point is answered in this way as follows.

Hence, it is ordered

That the instant consumer complaint filed by Smt. Archana Ghosh against Sri. Bipul Bhattacharjee is here by allowed on contest without cost U/S 17 of CP Act, 1986.  

The OP Bipul Bhattacharjee is directed to pay the excess amount Rs. 1,49,040/- to the complainant with interest @ 6% PA since the date of deed of sale executed between him and the complainant in respect of the same flat. Within two months.

For deficiency of service and unfair trade practice the OP is directed to pay Rs. 50,000/- to the complainant. Within two months as compensation. All the awarded money to be paid by the OP within due time as ordered failing which interest @6% PA will be imposed.

No Litigation cost is awarded in favour of the Complainant as free legal aid service was provided.

Let a copy of this order be supplied to the parties free of cost.