17.04.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The brief facts of the Complaint Case, filed u/s 17 of the Consumer Protection Act, 1986, are that the Complainant entered into an Agreement for Sale dated 12.12.2007 with the OP Nos. 1 to 4-Developers  for purchase of a flat of 1190 sq. ft. super built-up area, on the first floor of the building concerned along with a car-parking space, at 130/75, Prince Golam Hossain Shah Road, Kolkata-700 032, for a ‘lumpsum price of Rs. 12,66,000/-‘ as appearing from the Agreement for Sale, as referred to hereinbefore.  After such Agreement for Sale the Complainant claimed to have paid Rs. 12,66,000/- as consideration money of the said flat as per the terms and conditions of the Agreement for Sale and further Rs. 4,84,000/- for extra works, as claimed by the OP Nos. 1 to 4-Developers, which was disputed by the Complainant on the ground of  the same having  been done without the consent of the Complainant.

          On such payment, the possession of the flat along with the Completion Certificate was handed over by the OP Nos. 1 to 4-Developers  to the Complainant by a letter dated 5.1.2009.  Thereafter, when the Complainant was willing for registration of the Deed of Conveyance as per request by the OP Nos. 1 to 4-Developers by their letter dated 14.8.2009, then the OP Nos. 1 to 4-Developers demanded additional amount of Rs. 60,116/- for enlargement of the area of the flat from 1190 sq. ft., as per the said Agreement, to 1232.94 sq. ft. super built-up area, which was also done allegedly without any consent from the Complainant as averred in the Petition of Complaint.  In this position, the OP Nos. 1 to 4-Developers sent a draft of ‘Supplementary Agreement’ and a ‘Memo of Consideration’ for registration without the car-parking space showing the value of the car-parking space as Rs. 1,70,000/-, which the Complainant denied to agree with.  Since then, the OP Nos. 1 to 4-Developers did not take any initiative for execution and registration of the Deed of Conveyance in respect of the flat in question even after service of legal notice dated 25.11.2009 by the Complainant requesting the Ops for execution and registration of the flat along with the car-parking space as agreed upon by and between the parties by the Agreement for Sale dated 12.12.2007.

          Furthermore, after taking possession of the flat in question the Complainant took measurement of the flat by one LBS of KMC and found that the handed-over flat was of 945 sq. ft. super built-up area (as it stood after adding 25% extra to the covered area) instead of 1190 sq. ft. as per the said Agreement for Sale.

          Thereafter, further survey, by an Advocate-Commissioner appointed by this Commission, reported the area of the flat as 809.712 sq. ft. (No mention of whether covered or super built-up area) excluding the car-parking space, which was 198.736 sq. ft.

          Again, it appears from the records that the OP Nos. 1 to 4/Developers had sold out, out of the three car-parking space as per sanctioned plan by the KMC, two car-parking spaces to other flat-owners of the building concerned and another car-parking space to a person who was not the flat-owner of the building concerned, leaving no scope for handing over any car-parking space to the complainant.  With this factual background the present Complaint has been filed.

          After filing the Complaint Notices were duly served upon the Ops concerned.  But no Written Version has been  filed by the OP Nos. 5,6 & 7.  None has appeared for the OP No. 8.  Further, no Evidence-on-Affidavit has been filed by the Ops although the OP Nos. 1 to 4, being the Developers, were present on the  date of final hearing and filed BNA.  The Complainant also filed BNA.

          The Ld. Advocate for the Complainant submits that despite payment of Rs. 17,50,000/-, as evident from the Money Receipts and Bank Statements concerned, as available on records, against the total consideration of the flat in question being Rs. 12,66,000/- as per the said Agreement for Sale and further payment of Rs. 4,84,000/- for extra works, which were done by the OP Nos. 1 to 4-Developers allegedly without the consent of the Complainant, and despite handing over the possession of the flat in question,  the OP Nos. 1 to 4-Developers did not execute and register the Deed of Conveyance in respect of the flat in question along with the car-parking space in violation of the contractual obligation arising out of the terms and conditions of the said Agreement for Sale.

          It is also submitted by the Ld. Advocate that the OP Nos. 1 to 4/Developers have also violated the terms and conditions of the said Agreement for Sale in so far as it relates to the area of the handed-over flat in question, which was found to be of 809.712 sq. ft., as per the report dated 18.3.2013 by the Advocate-Commissioner appointed by this Commission on the prayer of the Complainant,  against the area of the flat being 1190 sq. ft. super built-up area as per the said Agreement for Sale, and non-handing over of the car-parking space to the Complainant as agreed upon in the said Agreement for Sale dated 12.12.2007.

          The Ld. Advocate further adds that the OP Nos. 1 to 4-Developers have claimed an additional amount of Rs. 61,116/- on account of increase of area of the flat in question to 1232.94 sq.ft. from 1190 sq. ft. as per the said Agreement for Sale, which was beyond the knowledge and consent of the Complainant.

          The Ld. Advocate continues that apart from the above violation by the OP Nos. 1to 4/Developers of the contractual obligation,  the flat handed over by the OP Nos. 1 to 4-Developers was found to have defects therein as manifest from the seepage of the walls of bedrooms, dining and the bath-room.

          The Ld. Advocate further submits that the aforesaid acts of the OP Nos. 1to 4/Developers constitute deficiency in service and unfair trade practice on the part of the OP Nos. 1 to 4-Developers. 

          The Ld. Advocate finally concludes that in view of the submission so put forward the Complaint should be allowed and the OPs should be directed to execute and register in favour of the Complainant the Deed of Conveyance of the flat as per the terms and conditions of the said Agreement for Sale and to refund Rs. 1,32,989/- being the value of shortage of the area of the flat by 125 sq. ft. and also to pay compensation to the tune of Rs. 20,000/- for defects in the flat like seepage, etc. and Rs. 4,80,000/- for harassment and mental agony, apart from the litigation cost of Rs. 10,000/-.

          On the other hand, the Ld. Advocate for the OP Nos. 1 to 4/Developers submits that the OP Nos. 1 to 4 had received only Rs. 12,60,000/- and that no extra payment was received by the OP Nos. 1 to 4.

          The Ld. Advocate also submits that the possession of the flat was handed over to the Complainant on 5.1.2009 and the Complainant denied to take the car-parking space by a letter addressed to the OP Nos. 1 to 4- Developers.

          The Ld. Advocate further submits that the report by the LBS, as relied upon by the Complainant, is fishy one and hence, it cannot be relied upon.

          The Ld. Advocate finally concludes that the Complainant himself is delaying the process of registration, keeping some consideration due to the OP Nos. 1 to 4-Developers. 

          The Ld. Advocate concludes that in view of the submission so advanced, the Complaint should be dismissed, it being concocted one.

          We have heard both the sides present on the date of final hearing, considered their respective submission and perused the materials on records including the BNAs as filed.

          The Agreement for Sale dated 12.12.2007 (Running Page- 24 of Petition of Complaint), as available on records, reveals that the area of the flat as agreed upon by and between the Complainant and the OP Nos. 1 to 4/Developers was 1190 sq. ft. super built-up area (Vide Pages-8 & 17 of the Agreement concerned, Running Pages-31 & 40 of Petition of Complaint).  The said Agreement also shows the terms and conditions of sale of a car-parking space along with the said flat against lumpsum consideration of Rs. 12,66,000/- (Vide Page-9 of the Agreement concerned, Running Page-32 of Petition of Complaint).

          The report dated 18.3.2013 of the Advocate-Commissioner, as available on records, reveals the area of the handed-over flat as 809.712 sq. ft. (It seems to be covered area as the report shows that the measurement was taken in respect of actual length and breadth of the flat in question) against 1190 sq. ft. super built-up area as per the said Agreement for Sale.

          The Money Receipts and the Bank Statements concerned, as available on records, indicate the receipt by the OP Nos. 1 to 4-Developers of payment, both by cash and cheque, of Rs. 17,50,000/- including the advance paid on the date of the Agreement concerned (Running page-23 to 40 of Petition of Complaint).  The cheques so received appear to have been encashed by the OP Nos. 1 to 4-Developers.  For instance, Cheque Nos. 038831 to 038833 were encashed on 25.7.2008, 8.8.2008 and 23.9.2008 respectively and the Cheque No. 038834 was encashed on 4.12.2008 as evident from the Bank Statement filed.  It is also revealed from the documents on records that the car-parking space was not delivered to the Complainant for any ground whatsoever.  It is further revealed from the materials on records that the OP Nos. 1 to 4-Developers have not produced any documents whatsoever in support of additional works as claimed by them.  Further, the Complainant also has not produced any cogent evidence in support of the defects in the flat as claimed.

          From the above materials the area of the flat handed over by the OP Nos. 1 to 4-Developers may be calculated as under:

Area of the flat as per Advocate-Commissioner’s                 

Report dated 18.03.2013

(No mention of covered area or super built-up area) :           809.712 sq. ft.

ADD : 

Assuming the said area as covered area 25%                         .

is added to it to arrive at the super built-up area,

with reference to which the Agreement for Sale

was executed.                                                             :           202.428 sq. ft

Super built-up area of the flat handed over to the                             

Complainant stood at                                                  :           1012.14 sq. ft.

Hence, it is evident from the above calculation that the OP Nos. 1 to 4-Developers handed over the flat which was short in area by 78.86 sq. ft.   Now, the value of the said shortage area of the flat is worked out as under:

                   Rs. 12,66,000/-  X  78.86 sq. ft.   

                                  1190 sq. ft.

                   = Rs. 83,896/-

          In view of the foregoing discussion and evidence on records we are of the view that the OP Nos. 1 to 4-Developers had deficiency in service and accordingly, the Complaint is allowed on contest against the OP Nos. 1 to 4-Developers with cost of Rs. 10,000/- and ex parte against the OP Nos. 5 to 8 without cost. 

The OPs are, therefore, directed to execute and register in favour of the Complainant the Deed of Conveyance in respect of the flat, possession of which was already handed over to the Complainant, as per the contractual obligation of the OPs within 45 days from the date of the order, failing which the Complainant shall be at liberty to get the Deed registered through the machinery of this Commission.

Further, the OP Nos. 1 to 4-Developers are directed to refund to the Complainant Rs. 83,896/- representing the value of the shortage area of the flat in question, as worked out hereinbefore, and also  Rs. 4,84,000/-  received on account of extra works as claimed by the OP Nos. 1 to 4-Developers without any support of relevant documentary evidence,  and to pay compensation to the Complainant Rs. 1,70,000/-, as estimated by the OP Nos. 1 to 4-Developers, as mentioned hereinbefore, for financial loss arising out of non-delivery of the car-parking space and  Rs. 50,000/- for mental agony and harassment within 45 days from the date of this order, failing which interest @ 9% per annum shall be payable by the OP Nos. 1 to 4-Developers to the Complainant on the above amount from the date of default till payment in full.

In the result, the Complaint is disposed of in the aforesaid manner.