DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. __128_ _ OF ___2017

DATE OF FILING :_12.10.2017         DATE OF PASSING JUDGEMENT:  17.9.2018

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker   & Jhunu Prasad

COMPLAINANT   :            1. Sk. Ahmed Ali, son of late Sk. Sahadat

                                  2. Lutfa Begum, wife of Sk. Ahmed Ali , both of 34, Park Street, G-12, Kolkata – 16 and also at 100A, Elliot Road, P.S. Park Street, Kolkata – 16.

•  VERSUS  -

O.P/O.Ps                    : Dilip Majumder, son of late Bijoy Majumder, Prop. Of D.M Real Estate Developers, at 6/27, Netaji Nagar, Kolkata- 92.

_______________________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

               When the delivery of possession and registration of the flat have not been able to satisfy the complainant, the complainant has filed the instant case, alleging deficiency in service on the part of the O.P/developer to pray for passing the following orders:

1. An order directing the O.Ps to complete the unfinished work left in the subject flat.
2. An order directing the O.P to return a sum of Rs.62,200/- being the difference amount in respect of the schedule mentioned flat.
3. An order directing the O.P to pay a sum of Rs.1,40,000/-  calculating from the month of September, 2012 upto the month of August, 2017 as per clause no.7 of the agreement for sale dated 25.2.2017.
4. An order directing the O.P to pay compensation of Rs. 3 lac for harassment, mental torture etc.

The O.P has been contesting the case by filing written statement, wherein it is contended inter alia that khas possession of the flat completed in all respect has been delivered and deed of conveyance has already been registered in favour of the complainant. There is no incomplete works nor any shortage of super built up area in the flat . The flat was constructed and completed as per agreement dated 25.2.2011. The complaint is speculative, malafide, intended to make a fast buck to satisfy the avarice of the complainant. There is no cause of action of the complainant for bringing the instant case and ,therefore, the instant case deserves to be dismissed.

                Upon the averments of the parties, the following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is the O.P  guilty of deficiency in service as alleged by the complainant?
2. Is the complainant entitled to get relief or reliefs as prayed for ?

                 Evidence on affidavit  is filed on behalf of both the parties and the same are kept in the record after consideration. BNAs are also kept in the record after consideration.

DECISION WITH REASONS

Point no.1 & 2 :

              Already heard the submissions of Ld. Lawyers ,appearing for the parties . Perused the petition of complaint, written statement filed by the O.P and also the documents filed on record by the parties. Considered all these.

              One of the allegations of the complainant in this case is that there is shortage of super built up area in the flat. According to him, the O.P agreed to sell a flat having a super built up area of 1160 sq.ft as mentioned in the agreement for sale dated 25.2.2011. The deed of conveyance ,which has been executed and registered by the O.P on 14.9.2015 in favour of the complainants,  also mentions that the super built up area of the flat is 1110 sq.ft as per sanctioned plan. But the complainant has found that the actual super built up area of his flat is 1092 sq.ft and, therefore, the complainant has prayed for refund of Rs.62,200/- which is the value of the area falling short of the area prescribed in the sale agreement.

              Before going into any discussion on this point, we like to reiterate one thing that a Court of Law never grants any relief to any person merely on the basis of the pleadings ,unless the facts are admitted by the contesting parties. In the instant case, no document has been filed on behalf of the complainant to prove that the super built up area of his flat actually falls short of the prescribed area in terms of the sale agreement. The complainant could have filed a petition before the Forum ,praying for inspection of the said flat by a Commissioner in order to determine the area falling short of the prescribed limit ,but no such step has been taken by the complainant. The complainant has filed a report of a Civil Engineer who conducted investigation privately in the subject flat of the complainant. In our view, that report cannot be a substitute of proof and ,therefore, no reliance can be placed upon that report.

              In the circumstances, it is found that there is no proof on record to establish that the super built up area of the flat of the complainant actually falls short of the area  as prescribed in the sale agreement or in the deed of conveyance executed by the O.P. This being so, we feel no hesitation whatsoever to say that the complainant has failed to substantiate his contention regarding shortfall of super built up area of his flat and ,therefore, we do say that the complainant has not been able to prove deficiency in service against the O.P.

             It has also been alleged by the complainant that there is incomplete works left in his flat by the O.P. In this regard also there is no proof. Mere pleadings will not be able to fetch any relief to the complainants. This allegation has also not been proved and, therefore, we find that the complainant has failed to substantiate deficiency in service on the part of the O.P.

              That apart, Clause 10 of the Sale Agreement as it runs at page 14 thereof reads as follows:

               “That the purchasers at his own cost shall make beautification work or minor works or cause to be further make beautification works or minor works of the said flat and the common parts proportionately and shall bear and pay all costs and expenses on such account”.

                The above clause makes it abundantly clear that the purchaser namely the complainant will do the work of beautification or minor work of his flat and common part of the said flat at his own cost to be borne proportionately with other co-owners of the flats. In view of this clause of the deed of conveyance, the complainant is found to be not entitled to any relief for incomplete work allegedly left by the developer in the flat provided the said work is of minor  nature and in relation to beautification of the flat.

              Upon what have been discussed above, it is found that the complainant is not entitled to get any reliefs as prayed for ,as he has not been able to substantiate his allegation against the O.Ps.

              In the result, the case fails .

               Hence,

ORDERED

             That the complaint case be and the same is dismissed on contest against the O.P without any cost.

    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

 T