This is a complaint made by Sri Bijoy Sadhukhan & two others against Sri Sambit Banerjee, S/o Dipten Banerjee of 25, Becharam Chatterjee Road, P.S. Parnashree, Kolkata – 700034, praying for a direction upon the OP to pay Rs. 6,35,000/- in lieu of less area of owner’s allocation, and to pay Rs. 1,00,000/- as damages for adopting unfair trade practice and another sum of Rs. 50,000/- as litigation cost.
Facts, in brief, are that one Aparna Sadhukhan was the absolute owner of a land measuring more or less 3 Cottahs 12 Chittacks with structure standing on dag no. 3112 under Khatian No. 1995 and 2041 at Mouza Purba Barisha being Premises No. 2900, Vidyasagar Sarani, P.S. Haridevpur, Kolkata – 700 063. Said Aparna Sadhukhan entered into a development agreement with the OP to develop the said property under certain terms and conditions. It is further stated that Aparna Sadhukhan took a sum of Rs. 6,00,000/- from the OP which was adjustable with owner’s allocation of 40% FRA. While the said property was under construction, Aparna Sadhukhan died on 16-09-2014, leaving behind her husband and two sons. Thereafter, on 02-01-2015, a registered Deed of Development Agreement was made with the heirs of Aparna Sadhukhan, since deceased. In terms of the said Development Agreement, it was agreed by and between the parties that the owner would get 40% FAR, which include one flat on the Southern side of ground floor and another flat on the Northern side of top floor. It was also agreed between the parties that if it was found that the total area of owner’s allocation was less than 40% FAR, in that event, the developer/OP would pay the balance amount in cash at present market price. Complainant requested the OP to complete the flat as per agreement and to measure the owner’s allocation, but the OP allegedly did not pay any heed. It is also claimed by the Complainants that they have completed the flat at their own cost for which they had to incur Rs. 1,00,000/-. The Complainants also measured the flat through one L.B.S., who reported that the owners got 1426 sq. ft. built up area which was 254 sq. ft. less from 40% FAR and the market value of the same is calculated at Rs. 2,500/- x 254 sq. ft. = Rs. 6,35,000/-. Such alleged unfair trade practice on the part of the OP prompted the Complainants file this case for redressal of their grievance.
On the basis of above facts, the complaint was admitted and notice served upon the OP through paper publication. However, the OP did not appear and so, the case was heard ex parte.
Decision with reasons
Complainants filed Affidavit-in-Chief, wherein they reiterated the facts mentioned in the petition of complaint.
Main point for determination is whether the Complainants are entitled to the reliefs sought for by them.
The first relief sought for by the Complainants is refund of Rs. 6,35,000/- in lieu of shortfall of 254 sq. ft. area in respect of owner’s allocation. In order to substantiate their claim, Complainants have submitted notarized copy of the report dated 02-03-2016 prepared by Sri Anupam Das, L.B.S. However, it is noteworthy that the concerned L.B.S. has not deposed before us to authenticate the same.
Further, we find it strange that although the Complainants claimed to have spent Rs. 1,00,000/- out of their own pocket to make the flat habitable, no claim is staked from the side of the Complainants for this amount.
Be that as it may, even for the sake of argument if it is assumed that the OP developer indeed handed over 254 sq. ft. less area to the Complainant duo, still we are constrained to award any relief in favour of the Complainants. The reason follows.
Notwithstanding it is claimed by the Complainants that they owe an amount of Rs. 6,35,000/- from the OP because of alleged shortfall of 254 sq. ft. area in respect of owners allocation, there is no clarity as to the sum of Rs. 6,00,000/- that Aparna Sadhukhan, since deceased, admittedly received from the OP developer. There can be no two opinions as to the fact that insofar as OP has paid a sum of Rs. 6,00,000/- to Aparna Sadhukhan, since deceased, the money should be accounted for while determining the final settlement figure. Unfortunately, we could not figure out on what basis the Complainants claimed Rs. 6,35,000/- from the OP.
It is stated in paragraph 4 of the petition of complaint that, “It was also agreed between the parties that if it is found that the total area of owner’s allocation less than 40% FAR in that event, the Developer/Opposite Party shall pay for the balance amount in cash at the rate of present market price and the said cash money which was given earlier to Aparna Sadhukhan, the previous owner in the said Development Agreement”.
We must admit, no conclusive connotation could be derived at out of such perplexing/incomplete statement. To be more precise, whether Complainants are entitled to get the whole of Rs. 6,35,000/- over and above Rs. 6,00,000/- that Aparna Sadhukhan, since deceased, has already received from the OP developer or the amount already paid to Aparna Sadhukhan, since deceased, has to be adjusted from the claimed amount remains unclear.
We must emphasis that, deciding a case with incomplete information is fraught with potential risk of rendering injustice to a bona fide party. As such, we do not deem it wise to decide the case either way, lest the same may prejudice one’s interests. In case the advance money given to Aparna Sadhukhan, since deceased, requires adjustment, awarding the whole amount in favour of the Complainants is bound to put the OP in a stick. On the other hand, if the Complainants indeed deserve the entire claim amount, deducting the advance money given to Aparna Sadhukhan, since deceased, from the claimed amount would be detrimental to the interests of the Complainants.
True, the OP has not appeared to contest this case. However, this cannot be reason enough to accept the contention of the Complainants as gospel truth. Being the claimant, the onus of proving their case rests with the Complainants. As because, this aspect is not met to the entire satisfaction of this Forum, we afraid, we cannot decide the matter based on .
Hence,
O R D E R E D
that CC/141/2016 be and the same is dismissed ex parte against the OP. No order as to costs.
