Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order : 31.05.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to provide an accurate, certified, independent third party measurement of the actual apartment ( flat no. 401) carpet area, built up area of the apartment including the area of the balconies which are to be shown separately, and super built up area, common area, and limited common area each of which are also to be shown separately.
2. To direct the opposite parties to give delivery of possession of the flat no. 401 in the Kailash Niwas to the complainant after its completion in all respect as early as possible.
3. To direct the opposite parties to execute sale deed in respect to the flat at earliest, and to pay the following amount to the complainant with interest of 12% per annum on the amount already paid for delay beyond 6 months from the date of schedule delivery of the flat.
4. To pay Rs. 1,50,000/- ( Rs. One Lakh Fifty Thousand only ) as compensation and litigation costs.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that he was willing to purchase a Flat in multistoried building i.e. KAILASH NIWAS and after negotiation and application of the complainant the opposite parties issued letter of allotment dated 09.07.2008 in favour of the complainant with respect to Flat No. 401 in Kailash Niwas. Thereafter on the request of opposite party no. 2 the opposite party no. 1 through opposite party no. 2 entered into two separate agreement to sell two flats to the complainant in Kailash Niwas bearing flat no. 402 with one car parking space measuring super built up area of 1330 Sq. Ft. on 04.08.2008 and flat no. 401 having super built up area of 1330 Sq. Ft. on 04.10.2008. The total consideration amount of the two flats was mutually agreed upon as 12,00,000/- and 11,50,000/- respectively.

The copy of the letter of allotment and agreement for sale in respect to flat no. 401 has been annexed as annexure – 1 and 1/1.

It is further case of the complainant that opposite party no. 2 entered into agreement for sale dated 04.10.2008 with the complainant in which opposite party no. 1 has mentioned that construction of the said Kailash Niwas is to be completed by Dec 2009 with a grace period of 6 months where as in the development agreement dated 24.09.2007 it was clearly mentioned that the multistoried building shall be completed within 3 years i.e. by Nov 2010 with grace period of further 6 months from the date of sanction of the Map Plan.

The aforesaid fact was purposely suppressed by opposite parties in the agreement of sale in order to extract entire consideration amount before the completion of construction work. This development agreement has been annexed as annexure – 2 by the complainant.

It is also case of the complainant that as per terms and conditions of annexure – 1/1 the consideration amount of the flat is to be paid at different stages of construction and remaining Rs. 50,000/- is to be paid at the time of handing over the possession of the flat.

The complainant has asserted that the complainant has paid Rs. 22,50,000/- to opposite parties on different dates for both flats of 402 and 401 out of total consideration amount of Rs. 23,50,000/-. It is the case of the complainant that for flat no. 402 Rs. 12,00,000/- was agreed and for flat no. 401 Rs. 11,50,000/- was agreed. Thus out of Rs. 23,50,000/-, Rs. 22,50,000/- was paid before completion of brick work of said flat. Besides that complainant has also provided 18 good quality of wooden doors frames for installing in flat no. 402 and 401 out of which 16 chaukhatts have been installed and 2 chaukhatts are yet to be installed which are currently lying in the construction site as per agreement.

The complainant annexed annexure – 3 series which shows that for the flat no. 401 the complainant has paid Rs. 11,00,000/- to opposite parties and rest of the consideration amount of Rs. 50,000/- shall be paid at the time of possession of the flat in accordance with the agreement.

When the complainant did not got the flat then he requested the opposite parties for delivery of possession of the flats 401 and 402 and execute sale deed of both flats at the earliest since the dead line and grace period has already been expired. This letter has been annexed as annexure – 4.

The grievance of the complainant is that instead of giving possession of the flat the complainant received a legal notice dated 09.08.2010 on behalf of opposite parties demanding illegal amount stating therein that super built up area has been extended up to 1470 Sq. Ft. instead of 1330 sq. Ft. as per agreement for sale deed etc.

The complainant has replied through her advocate to the opposite parties requesting him to adhere to terms to the agreement for sale but in spite of the aforesaid legal notice no action was taken by opposite parties. Thereafter the complainant sent a reminder through their advocate to opposite party no. 2 dated 12.10.2010 requesting therein to specify the date on which the possession of flat no. 401 and 402 in the said Kailash Niwas is to be given to the complainant. The aforesaid letter is annexed as annexure – 7.

It is also the case of the complainant that several persons whose names are mentioned in Para – 14 of the complaint petition have been given possession and the registered sale deed has been executed but the opposite parties are not giving delivery of flat to other person including complainant.

On behalf of opposite parties a counter affidavit has been filed denying the allegation of the complainant. It has been stated that the complainant herself has failed to perform her part of contract as such the opposite parties cannot be faulted.

It has been also stated that after completion of the flats on measurement the super built up area in flat in question comes to 1470 Sq. Ft. Thus there is an addition of 140 Sq. Ft. because the earlier super built up area was fixed around 1330 Sq. Ft. and as such the complainant is under legal obligation to make payment of additional built up area.

It has been further stated that as the complainant did not pay the installments on due date as such the opposite parties have rightly cancelled the agreement for sale after following due procedure.

It is also stated that opposite parties had written several letters dated 03.08.2009, 15.05.2010 and 28.06.2010 and on 01.07.2010 but no action was taken by the complainant. The photocopies of aforesaid letters have been annexed as annexure – A series of counter affidavit.

It is also the case of the opposite parties that the complainant has not paid the entire consideration money as per agreement for sale.

On behalf of the complainant a rejoinder has been filed stating that the opposite parties are under obligation to produce the certificate of architect as to whether the super built up area of flat no. 401 has been increased from 1330 Sq. Ft. to 1470 Sq. Ft. because the complainant apprehends that the assertion of the opposite parties that super built up area have been increased from 1330 Sq. Ft. to 1470 Sq. Ft. is not correct.

In Para – 10 of the rejoinder it has been asserted that the complainant had made the entire payment of flat no. 401 by Sep 2009, except Rs. 50,000/- which was to be paid at the time of possession as per schedule B of annexure – 1/1.

It has also been stated that the so called notice sent by opposite parties to the complainant was never received ( except a few that were hand delivered in person or via private courier ). The opposite parties have deliberately sent the notice at her village address while they were fully aware of the fact that she is residing in Kankarbagh as legal notice dated 09.08.2010 has been sent to her Kankarbagh address.

We have narrated the brief facts asserted by the parties in the foregoing paragraphs.

It is the case of the complainant that she has paid Rs. 11,00,000/- for flat no. 401 and Rs. 12,00,000/- for flat no. 402 to the opposite parties. It is further stated that out of Rs. 23,50,000/- for the two flats bearing no. 401 and 402, the complainant has paid Rs. 22,50,000/- to the opposite parties on different dates and Rs. 50,000/- for each of flats was to be paid at the time of possession of the flat.

In support of the aforesaid payment the complainant has annexed payment receipts as annexure – 3 series. The opposite parties have not denied the aforesaid facts but only stated that the full payment has not been done. This appears to be vague because the complainant has herself asserted that Rs. 50,000/- for each of the flats was required to be paid at the time of handing over the flats.

The opposite parties have also asserted that they have written several letters by way of reminders to the complainant for paying the rest amount as well as paying the entire amount because instead of 1330 Sq. Ft. super built up area increased to 1470 Sq. Ft.

It is needless to say that as per schedule B of the agreement for sale i.e. annexure e - 1/1 it is crystal clear that the total cost of the flat 401 was only Rs. 11,50,000/- and the super built up area will come to 1330 Sq. Ft. more or less. It is also mentioned that final measurement will be made at the time of registry on the possession of the flat, thus as per agreement for sale the opposite parties were required to get the aforesaid flat measured at the time of handing over the possession of flat no. 401 and then if there is increase in super built up area from 1330 Sq. Ft. to 1470 Sq. ft. then the opposite parties have right to demand the price for extended super built up area but instead of that the opposite parties without getting the flat measured and handing over the possession demanded the aforesaid amount from the complainant which is not proper.

Apart from it the opposite parties have stated that they have sent several letters to the complainant for payment of rest amount. It is surprising that in Para – 14 of the legal notice dated 09.08.2010 (annexure – 5) sent to the complainant by opposite parties, the complainant has to pay the rest amount within 15 days from the receipt of this notice otherwise the allotment will be cancelled but from the annexure – A series and in Para – 12 of counter affidavit it is stated that the agreement for sale was cancelled and communicated on 28.06.2010. This shows that the legal notice is nothing but a hoax because the opposite parties had already cancelled the agreement prior to issuing annexure - 5.

It is needless to say that on behalf of opposite party no. 3 a separate written statement have been filed. In Para – 15 of which it is stated that “the answering opposite party relies upon the contents of counter affidavit filed by the other opposite parties (opposite party no. 1 and 2).”

On behalf of the opposite parties an affidavit has been filed from perusal of which it appears that the aforesaid flats were measured and certificate have been annexed as annexure – C series.

No purpose will be served in repeating the same facts again and again but the aforesaid facts clearly disclose the deficiency on the part of opposite parties.

For the reason stated above we direct the opposite parties to give the possession of the said flat no. 401 to the complainant and thereafter in the presence of the complainant the super built up area of 401 shall be measured by a competent authority and if the super built up area is found increased then the complainant will have to pay the price of the extended super built up area at the rate of year 2010. The aforesaid payment must be made to the opposite parties at the time of execution of the sale deed.

The complainant will also pay the rest amount agreed between the parties vide annexure – 1/1.

The opposite parties are further directed to execute the sale deed after completing the aforesaid formalities with respect to flat no. 401 within the period of two months from the date of receipt of this order or certified copy of this order failing which the opposite parties will pay an interest @ 12% on Rs. 11,00,000/- till its final payment.

Opposite parties are further directed to pay Rs. 25,000/- to the complainant by way of compensation and litigation costs within the aforesaid period of two months.

Accordingly this case stands allowed to the extent indicated above.

                             Member                                                                              President