PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a purchaser against the Developer/builder (Opposite Parties 1 and 2) of the landowners (Opposite Parties 3 to 8) on the allegation of deficiency in services, primarily on the part of developer/builder in a dispute of housing construction.
Succinctly put, complainant’s case is that on 23.12.2014 he entered into an agreement with the Opposite Party Nos. 1 and 2 i.e. the partners of M/s. Rysha Developers, a partnership construction firm to purchase of a self-contained residential flat measurement about 615 sq. ft. super built up area being flat No. 2A on the first floor in G+III storied building lying and situated at premises No. 24B, Omda Raja Lane P.S- Narkeldanga, Kolkata- 700015, Dist- South 24 Parganas within the local limits of ward No. 36 of Kolkata Municipal Corporation at a total consideration of Rs. 24,00,000/-. The complainant has stated that he has paid the entire consideration amount and on payment of the same the OP Nos. 1 and 2 had executed a deed of conveyance in favour of him on 05.06.2015. The complainant has stated that the developer has deviated the sanctioned building plan and provided him a flat of 500 sq. ft., lesser of 115 sq. ft in size than agreed upon. In this regard, all the requests and persuasions went in vain. Hence, the complainant has approached this commission with prayer for following reliefs, viz. (a) a direction upon the Opposite Parties to refund Rs. 24,00,000/-; (b) to direct the OPs to pay interest @ 18% p.a. from June, 2015 till the date of execution of deed of conveyance; (c) in the alternative, the OPs be directed to make payment a sum of Rs. 8,10,290/- to the complainant for shortfall of 115 sq. ft. area of the flat; (d) to direct the OPs to pay compensation of Rs. 10,00,000/- for harassment and mental agony; (d) to direct the OPs to pay litigation costs etc.
The Opposite Party Nos. 1 and 2 by filing a written version have stated that there is no fraudulent selling of 115 sq. ft. or any area or they are liable to pay Rs. 4,48,730/- or interest etc. The Opposite Party Nos. 1 and 2 have further stated that there was a demolition proceedings under Section 401A and 416 of the Kolkata Municipal Corporation Act, 1980 for minor deviation but when the same has been regularised and deed of conveyance has already been executed in favour of the complainant, the complaint should be dismissed.
The Opposite Party No. 3 and OP Nos. 4 to 8 i.e. the landowners by filing a separate written version have stated that they have not received any money or benefits whatsoever from the complainant and as such the complainant is not entitled to any refund or any interest from them and as such the complaint should be dismissed against them.
The complainant has tendered evidence through affidavit. The OPs did not file any questionnaire and as such the complaint was proceeded ex parte. However, on the date of final hearing, complainant No. 2 in person appeared and has made a prayer to allow him to participate in the final hearing. Applying the principles of law laid down by the Hon’ble Supreme Court in the case reported in (1988) 4 SCC 613 (Modula India –vs- Kamakshya Singh Deo), OP No. 2 was given opportunity to participate in the final hearing. Besides the evidence led by the complainant, the report submitted by Mr. J.N Chaudhury, Ld. Engineer Commissioner for ascertaining the actual measurement of the flat in question was admitted in evidence.
The pleadings of the parties and the evidence on record make it quite clear that the Opposite Party Nos. 3 to 8 were the owners of a piece and parcel of a land measuring about 2 cottahs 8 chittaks and 15 sq. ft. more or less lying and situated at premises No. 24B, Omda Raja Lane, P.S.- Narkeldanga, Kolkata- 700015, Dist- South 24 Parganas within the local limits of ward No. 36 of Kolkata Municipal Corporation.
The landowners in order to raise construction of a G+III storied building over the said property had entered into a development agreement with OP Nos. 1 and 2, the partners of M/s. Rysha Developers a partnership construction firm on 08.10.2013. on the self-same date the landowners had also executed one registered power of attorney in favour of the OP No. 1 authorising them to raise a construction after obtaining sanction building plan from the Kolkata Municipal Corporation. Evidently, on 05.03.2014 the OP Nos. 1 and 2 have obtained the sanctioned building plan from the Kolkata Municipal Corporation which was remained valid for 5 years.
Being emboldened with the power conferred upon them, the OP Nos. 1 and 2 had entered into an agreement for sale with the complainant on 23.12.2014 to sell one self-contained residential flat measuring about 615 sq. ft. super built up area being flat No. 2A on the 1st floor in the said newly constructed building at a total consideration of Rs. 24,00,000/-. The clinching evidence led by the complainant supported by documentary evidence speaks that the complainant has paid the entire consideration amount. On payment of the same, OP Nos. 1 and 2 had executed a registered deed of conveyance in favour of the complainant on 05.06.2015 showing the measurement of the flat as 615 sq. ft. super built up area.
After taking possession, the complainant noticed shortfall of area and in order to determine the alleged deficiencies for shortfall of area, at the instance of complainant, one Sri J.N Chaudhury, Ld. Engineer Commissioner was appointed in this case. After inspection, the Ld. Engineer Commissioner has submitted his report on 23.04.2019. From the said report it would reveal that the total measurement (built up area) of the said flat is 399.323 sq. ft. Therefore, if 25% of super built up area is added with the built up area, size of the flat in question in any circumstances does not exceed 500 sq. ft. No written objection against the report of the Ld. Engineer Commissioner has been filed. Therefore, the report given by the Ld. Engineer Commissioner should be accepted.
When the sale deed has already been executed and registered, question of refund of money, as claimed by the complainant, does not arise. However, due to shortfall of the area of the flat in question, the complainant is entitled to refund of the amount. It reveals that the value of the flat was Rs. 3902/- per sq. ft. and therefore, if the less saleable area of 115 sq. ft. is taken into consideration, the complainant is entitled to refund Rs. 4,48,730/-. Moreover, as per clause 9 to the agreement for sale the OP Nos. 1 and 2/developer was under obligation to execute the deed of conveyance in favour of the complainants within six months from the date of agreement for sale i.e. within 23.06.2015. Evidently, the OP Nos. 1 and 2 could deliver the possession and executed the sale deed on 05.06.2015 i.e. within the stipulated period. However, OP Nos. 1 and 2 were found deficient for not rendering the flat measuring about 615 sq. ft. super built up area as per terms of the agreement. Therefore, complainant is entitled to Rs. 4,48.730/- as shortfall area (615 sq. ft. – 500 sq. ft = 115 sq. ft x Rs. 3902/- per sq. ft.) alongwith simple interest thereon @ 8% p.a. from the date of execution of deed of conveyance i.e. from 05.06.2015 till its realisation. As the situation compelled the complainant to lodge the complaint he is also entitled to litigation costs which we quantify at Rs. 10,000/-.
With the above discussions, the complaint is allowed on contest against Opposite Party Nos. 1 and 2 dismissed against the OP Nos. 3 to 8 with the following directions:
(i) The Opposite Party Nos. 1 and 2 are jointly and/or severally directed to refund Rs. 4,48,730/- alongwith simple interest thereon @ 8% p.a. from the date of execution of deed of conveyance i.e. from 05.06.2015 till the date of total recovery of the said amount;
(ii) The Opposite Party Nos. 1 and 2 are jointly and/or severally directed to pay Rs. 10,000/- to the complainant as costs of litigation;
(iii) The above payments should be made within 45 days in terms of the above order.
