30.06.2015

MRIDULA ROY, MEMBER.

The instant appeal is directed against the judgment and order dated 17.04.2014 passed by the Ld. District Forum, South 24 Parganas in complaint case being No. CC/235/2013 allowing the same on contest with cost of Rs.10,000/- against the O.Ps directing the O.Ps to pay a sum of Rs.33,000/- towards less measurement of the flat and Rs.50,000/- towards compensation within one month from the date of the order, failing which the entire amount (including cost) would carry interest @ 10% per annum from the date of default till realization thereof. 

Being aggrieved by the impugned order the Complainant has preferred the instant appeal on the ground, inter alia, that the Ld. District Forum failed to consider that the O.Ps – Respondents sold its own 70% share/allocation of the new building known as “Niharika Apartment” together with undivided proportionate share of land along with the right of common facilities etc. to its intending purchasers before delivery of the owners’ allocation violating the terms and conditions of the memorandum of understanding dated 03.03.2010 executed by and between the Complainant along with his two brothers and the developers vide which the Complainant and other two owners were entitled to get 30% of the build-up area including staircase and lift lobby and car parking space area and thus deprived the Complainant a super built-up area of 520 sq. ft. along with minimum 210 sq. ft. of car parking space.

The case of the Complainant before the Ld. District Forum, in brief, is that he being one of the co-owners of a piece of land situated at Premises No. 49, Gopal Mishra Road presently under Police Station – Parnashree, Kolkata – 700 034 having postal address 60/1, Gopal Mishra Road, P.S. – Parnashree, Kolkata – 700 034 entered into an agreement on 03.03.2010 along with his two brothers with the O.P. – developers for development of the said property under certain terms and conditions including the owners as well as the developers’ allocation after development of the said property.  The Complainant has further stated that as per terms of the agreement he was to get a flat on 3^rd floor having an area of 625 sq. ft. built-up area and a car parking space having an area of 210 sq. ft.  The Complainant’s specific allegation is that he has got much less area in the flat and has not received the possession of the car parking space for which the O.P. – developers are liable to deliver the khas possession of the flat and car parking space or to pay an amount @ Rs.3,000/- per sq. ft. for the less area in respect of the flat and @ Rs.2,000/- for the car parking space, to pay Rs.5,00,000/- towards compensation, to pay Rs.2,00,000/- for cost of litigation and also to pay cost of alternative accommodation.

The O.Ps contested the case and filed Written Version denying all material allegations contending, inter alia, that the agreement dated 03.03.2010 has been amended subsequently on 21.04.2010 and as per the amended agreement the possession of the scheduled flat at 3^rd floor measuring 600 sq. ft. built-up area has been delivered to the Complainant and the car parking space as per the said agreement has been made ready for delivery.  Accordingly, the O.Ps have prayed for dismissal of the complaint case. 

In course of hearing of the appeal the Ld. Advocate for the Appellant has submitted that the Respondent – developers deprived the Complainant from getting his proper share of property and in support of such contention Ld. Advocate has referred page 19 of the memorandum of understanding dated 03.03.2010 which contains the owners’ allocation of the said property.  Ld. Advocate for the has further stated that the flat has been delivered to the Complainant which is much less than the scheduled measurement and the car parking space has not been delivered so far. 

Ld. Advocate for the Respondents filed BNA contending that the scheduled flat has been delivered to the Appellant.  It is specifically mentioned by the Respondents that the Appellant is entitled to get 300 sq. ft. area in addition to the flat and value of the said area as assessed as Rs.4,20,000/- out of which they have already paid Rs.3,87,000/- to the Complainant. 

Having heard submission made by the Ld. Advocates for the respective parties it appears that a memorandum of understanding dated 03.03.2010 was executed by the Complainant along with his two brothers and the O.P. – developers.  It further appears from the record that a subsequent agreement was executed by and between the parties on 21.04.2010.  In the first paragraph of page 6 of the said agreement under caption OWNERS’ ALLOCATION it is mentioned “that the second schedule (owners’ allocation) as mentioned in page 19 of the said memorandum of agreement dated 3^rd March, 2010 shall be written in the aforesaid manner”.

“That this amendment of memorandum of agreement is the part of the agreement dated 3^rd March, 2010”.

Surprisingly, the Appellant never mentioned that the Respondents have done anything in violation of the terms of the agreement dated 21.04.2010.  However, it appears from the record that a Commissioner was appointed for inspection of the property in dispute who inspected the said property in presence of both sides and prepared report mentioning that the flat in question was measuring about 492 sq. ft.  It is evident from the terms of the agreement that the Complainant was entitled to get 625 sq. ft. area in respect of the flat.  As per Commissioner’s report he got 492 sq. ft. area.  Therefore, an area of (625 – 492) = 133 sq. ft. area was yet to be delivered to him.  However, the Respondents admitted that the Appellant is entitled to get 300 sq. ft. of area whose market value is Rs.4,20,000/-.  Although the Appellant has stated that the market value of the said area is much higher than that but  no authentic document has been furnished to that effect.  It has not been mentioned that in the agreement executed by and between the parties that how much would be paid in respect of the less area, if at all, be delivered in respect of the flat etc.  Therefore, the Complainant – Appellant failed to substantiate his entitlement to get the claimed amount.

For other allegations such as selling of flat to the intending purchasers before allocating the owners’ portion the Appellant could not substantiate his allegation.  Further, as per modified agreement dated 21.04.2010 no rent for accommodation was payable by the developers.

Under such state of affairs, we find there is no infirmity in the impugned order passed by the Ld. District Forum.

In the result, the appeal fails.

Hence, ORDERED that the appeal is dismissed on contest but without any order as to costs.  The impugned judgment is affirmed.