This complaint is filed by the Complainants U/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OP-2 and 3 did not hand over the possession in the said flat along with registration of the sale deed in their favour till filing of this complaint.

The brief fact of the case of the Complainants is that on 16.08.2013 they have entered into an agreement for sale with the OPs for purchasing one self-contained flat measuring about 528 square feet including super built up area together with impartible proportionate share of the land along with all other common rights, area and facilities situated at the said multistoried building. In the said agreement the OP-1 mentioned as the developer being represented by its partners i.e. OP-2 and 3 and the OP-4-7 are the land owners being represented by their constituted attorney i.e. OP-2 and 3 and the Complainants being the purchasers. Certain terms and conditions are incorporated in the agreement for sale. It was agreed upon by and between the parties that the Complainants shall pay Rs.10,56,000/- towards the total consideration price for the purpose of purchasing the said flat  and they paid a sum of Rs.5,00,000/- both by cash and cheque out of the total consideration amount as the booking money in favour of the OP-1, which was received and acknowledged by the partners and issued two money receipts each showing payment of Rs.2,50,000/-. It is mentioned in the agreement that the OPs are liable to handover possession in favour of the Complainants within 10 months from the date of execution of the said agreement on getting the balance consideration amount and failing which the Complainants will be at liberty to initiate legal proceedings against the developer. After completion of 10 months from the date of execution of the aforesaid agreement for sale the Complainants went to the office of the OP-1-3 and enquired as to when they will execute the deed of conveyance in their favour and hand over the physical possession in the said flat. But the OP-1-3 have asked for some time verbally for completion of the construction work and they assured the Complainants that they will execute the sale deed along with possession in the flat very soon. On good faith the Complainants have waited for some time, but the OP-1-3 have failed to keep their assurance and sought for further time one after another on flimsy ground. Finding no other alternative the Complainants have lodged complaint before the Central Consumer Grievance Redressal Cell and after lodgment one meeting was held by the said Department on consecutive two days i.e. 20.03.2019 and 05.04.2019. But curiously enough on the abovementioned two dates the OP-2 and 3 did not appear and at last the said Department being failed to resolve the said dispute by way of mediation due to non-co-operation of the OP-2 and 3 advised the Complainants to take recourse by preferring the statutory complaint before the appropriate Consumer Forum vide Memo dated 05.04.2019.

It is stated by the Complainants that in this manner approximately six years are going to be elapsed, but they did not get any fruitful result inspite of showing their bonafide. The aforementioned action of the OP-2 and 3 is clearly revealed that though the Complainant on good faith kept their trust on them, the OP-2 and have duped them with ulterior motive. The Complainants are always ready to pay the entire balance considerationamount, the OP-2 and 3 did not show their willingness and readiness to execute the deed of sale in their favour.Inspite of several persuasion and requests the OP-2 and 3 being reluctant did not take any positive step for redressal of their grievance. The OPs are flouting the specific terms and condition of the agreement and due to this reason the Complainants are passing their days in acute anxiety and having no other alternative the Complainants have approached before this Ld. Forum (Commission as amended w.e.f. 20.07.2020) by filing this complaint praying for direction upon the OP-2 and 3 to handover possession immediately in the schedule flat, to execute the sale deed in their favour in respect of flat, filing which to refund the paid amount along with interest, to pay compensation to the tune of Rs.2,00,000/- due to inordinate delay and litigation cost to them.

The petition of complaint have been contested by the OP-1, 2 and 3 by filing conjoint written version contending that these OPs have entered into the Development Agreement with the OP-4, 5, 6 and 7 for erection of the multistoried building over the land of the land owners i.e. OP-4, 5, 6 and 7 on 28.01.2011. It was settled in the said agreement that these OPs would be entitled to some flats in the proposed building as Developer’s Allocation and the land owners would also get some flats as Owner’s Allocation. It was settled that the present OPs would sale out the flats to the intending purchasers from the portion of the developer’s allocation on behalf of the original owners and to that effect the land owners have jointly executed a Registered Power of Attorney in connection with the questioned property. After getting the delivery of possession of the schedule land the present OPs have submitted the building plan of the proposed building before the North Dum Dum Municipality, which was duly sanctioned by the said authority on 25.06.2012. Thereafter the developer started to raise construction of the proposed building. In connection with the advertisement published by the developers the present Complainants being agreed to purchase a flat in the said building measuring area about 528 square feet at a total consideration price of Rs.10,56,000/- i.e. Rs.2,000/- per square feet and accordingly the developers and the Complainants have entered into an agreement for sale on 16.08.2013. It was also settled verbally that if there would be any deviation regarding measurement of the said flat then the consideration price would be finally settled @Rs.2,000/- per square feet after taking physical measurement of the schedule flat by both the parties though that had not been written in the Agreement for Sale dated 16.08.2013.the developers have completed the construction work of the said building within the stipulated period and handed over the possession of the owner’s allocation to the original owners. Thereafter the developers requested the Complainants to take measurement of the flat before handing over the physical possession to them. At the time of taking such measurement of the flat it was found that the actual physical measurement of the flat was about 562 square feet super built up area and accordingly the Complainants were requested to pay a sum of Rs.11,24,000/- as total consideration price of the questioned flat. But surprisingly the Complainants have flatly denied to pay any excess amountthan the price as mentioned in the agreement for sale. The developers tried their best to convince the Complainants that as the measurement has been enhanced then they have to pay the excess price for excess area @Rs.2,000/- per square feet. The developers also reminded the Complainants about the verbal settlement, but the Complainants denied to pay any excess amount. The Complainants paid only Rs.5,00,000/- as advance payment and as they refused to pay the excess amount beyond the agreement, the developers did not hand over the possession of the flat to them along with registration of the deed of conveyance in their favour in respect of the said flat. Subsequently several meetings were held, but no fruitful result had been yielded as the Complainants were reluctant to move from their stand point. Thereafter any way the Complainants being agreed with the proposal of the developers approached before them and requested for execution of the sale deed after taking the settled amount as well as the excess amount, but the Complainants requested to register the said flat in the name of Deb Krishna Saha, the father-in-law of the Complainant-1 and the Complainants have handed over the copy of PAN and Aadhar Card of Deb Krishna Saha to the developers for preparation of the proposed deed in the year 2018. After getting the copies of those documents, the developers prepared the draft copy of the proposed deed of conveyance. After preparation of the draft copy of the proposed deed of conveyance in connection with the questioned flat the developers went to the Complainants for verifying the same, but on that date the Complainants have refused to pay the excess amount. Subsequently the Complainants lodged a complaint before the Assistant Director, Consumer Affairs Department, Government of West Bengal against the OP-2 and 3 for non-registering the schedule flat in their favour. After getting notice the developers have duly appeared before the said authority and made request for taking measurement of the said flat. After hearing both parties had agreed to take a measurement of the flat jointly and accordingly both parties have appointed a surveyor and the measurement was taken in presence of the both parties. After taking measurement it was found that the flat was about 562 square feet super built up area. As per the request of the said authority the developers have completed all pending construction work in the flat. After completion of such measurement the Complainants kept the report of the surveyor under their custody and did not submit the same before the said authority. After completion of the pending works the developers have duly informed the matter to the concerned Department by issuing letter dated 17.04.2019 which was received by the said Department by putting seal and signature. In the said letter the developers requested the Complainants to complete the registration of the said flat. Thereafter as the Complainants did not response to such request, the developers sent a letter to the Complainants on 17.06.2019 requesting them to take possession and complete the registration work. Inspite of receipt of the said letter the Complainant did not reply the same nor took ant step. The developers also tried to make contact either face to face or over telephone, but in vain. The Complainants have filed this complaint suppressing all the material facts and alleging false and frivolous allegation against the OPs. So the Complainants did not approach before this Ld. Commission with clean hands. According to the OP-1-3 as there is no deficiency in service as well as unfair trade practice on their behalf, prayer is made for dismissal of the complaint with exemplary cost.

The OP-7 has contested the petition of complaint by filing written version contending that the allegations have been made out by the Complainants against this OP is completely baseless and speculative.. The OP-7 is only one of the land owners and the other land owners are the OP-4, 5 and 6. She being a very small stake holder of the land where the construction of the project has been built up, she is duty bound to act one of the land owners in the process of constructing the project, but the Complainants have made several wild allegations against her having no basis. The OP-1, 2 and 3 are the developers and this OP being one of the land owners having no role for selling out the flats to the Complainants. The instant dispute is by and between the Complainants and the OP-1, 2 and 3, but this OP has been made party in this compliant unnecessary.Inspite of this this OP has submitted the written version for proper and effective adjudication of the instant complaint. Though the developer had provided her physical possession in the flat, she did not receive any formal letter of possession as yet from the end of the developer and for this reason she could not apply for separate electric connection and other utility services in her own name and being compelled she has been paying higher charges for using electricity for her domestic necessity from common electric connection arranged by the developer at the time of constructing the project. The developers did not provide her the completion certificate till date from the competent authority and due to non-receipt of the completion certificate the OP-7 cannot apply for mutation of her flat. According to the OP-7 as there is no deficiency in service as well as unfair trade practice on her behalf the instant complaint is liable to be dismissed with cost.

The record speaks that inspite of receipt of the notices the OP-4, 5 and 6 chose not to contest the complaint either orally or by filing written version within the statutory period of limitation, hence the Ld. Commission was pleased to pass an order on 31.10.2019 that the complaint will run exparte against the said OPs.

As the Complainants remained absent on consecutive dates without complying with the order of this Ld. Commission, hence the Complainants were directed to show cause. No cause was shown. In the interest of justice contact was made with the Complainants on behalf of the office of this Ld. Commission over telephone, when the Complainants prayed for short time for filing reply to the show cause. Accordingly short date was given to the Complainants. Inspite of such effort the Complainants did not turn up, no cause was shown, hence the Ld. Commission took decision to pass an order based on the documents and papers as available without dismissing the complaint for default. Accordingly date has been fixed for passing the final order.

At the time of writing judgment we have noticed that on 20.02.2020 the Complainants have filed ‘Reply’ to the written version of the OPs with a copy to the other side. Upon perusal of the same in our view that the Complainant have filed their evidence, but not in proper form in accordance with law.

We have perused the entire record, documents and papers very carefully. It is seen by us that the moot question which is required to be determined as to whether the developers are entitled to get excess price for the enhanced area going beyond the Agreement for Sale or not.

The Complainants have entered into an agreement for sale with the OP-1-3 for purchasing a flat measuring about 528 square feet, the consideration of the said flat was settled at Rs.10,56,000/-. It was also settled that the developers will hand over the possession in the questioned flat within 10 months from the date of execution of the agreement for sale along with registration of the deed of conveyance. Out of total consideration money the Complainants paid a sum of Rs.5,00,000/- and upon receipt of the said amount the developers issued two  money receipts, each showing Rs.2,50,000/- in favour of the Complainants. After expiry of the stipulated period of 10 months the Complainants approached the developers requesting to hand over the possession in the said flat along with registration of the sale deed in their favour. At that point of time the Complainants were told by the developers that as the measurement of the schedule flat has been increased from 528 square feet to 562 square feet, hence the Complainants are under the obligation to pay the excess price for the enhanced area. In this context the developers have submitted that it was settled verbally by and between them that in case of increase of area, if any, the Complainants shall have to pay the excess price @Rs.2,000/- per square feet. But in this regard no cogent document is filed by the developers in support of such contention and claim. In the agreement for sale the area is mentioned as 528 square feet, there is no mentioning in the agreement that if in case of increase of the area, whether the developers will be entitled to get excess price for increased area or not. As the agreement is silent over this issue, we cannot travel beyond the said agreement. Though the developers have mentioned in their written version that they were told by the Complainants to register the flat in the name of the father-in-law of the Complainant-1, in this regard also no document is produced to prove the matter. In the written version the developers have submitted that as per the direction of the Complainants they have prepared the draft of the deed of conveyance in the name of the father-in- lawof the Complainant-1, but the question has been cropped up in our mind to this effect that under which authority the developers have prepared the draft deed in the name of the person with whom no agreement for sale was executed. Therefore such contention of the developers does not stand at all. According to the developers until and unless the excess amount is paid by the Complainants for the increased area, they are not in a position to hand over the possession in the flat along with registration of the sale deed in favour of the Complainants. In this respect we are to mention the judgment passed by the Hon’ble NCDRC in the case of Pawan Gupta vs. Experion Developers Private Limited, on 26.08.2020 in the Consumer Case no-285/2018, wherein Their Lordships have held in the paragraph no-17, which runs as follows-

“17. The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area……...”

Therefore having regard to the abovementioned observation we are of the opinion that the developers are not entitled to claim excess amount from the Complainant for increased area of the concerned flat. The developers cannot travel beyond the agreement for sale. If there was subsequent verbal agreement by and between the parties, that should be in writing and based on which building plan should be sanctioned from the competent authority. So the ratio of the aforementioned Ruling is very much applicable in the case in hand.

It is the fact that the developers did not provide the Complainants the physical possession in the questioned flat along with registration of the sale deed in their favor in respect of the flat for a prolonged period and being dissatisfied with the action of the developers the Complainants being compelled filed this complaint before this Ld. Commission and for this proceedings the Complainants have to incur some expenses, for this reason we are of the view that the Complainants are entitled to get litigation cost from the OP-1-3.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint is hereby allowed on contest against the OP-1-3 with cost and dismissed against the OP-4-7 without any cost. The OP-1-3 are directed either jointly or severally to handover the physical possession in the scheduled flat to the Complainants in habitable conditions in all respect in accordance with the agreement for sale within 60 days from the date of passing this judgment. The OP-1-3 shall register the deed of conveyance in respect of the schedule flat in favour of the Complainants within 90 days from the date of passing this judgment, in default the Complainants will be at liberty to get the flat registered through the machinery of this Ld. Commission in accordance with law. The OP-1-3 shall pay either jointly or severally Rs.5,000/- to the Complainants towards litigation cost within 60 days from the date of passing this judgment, in default the Complainants are at liberty to put the entire decree in execution as per provision of law.

Let plain copy of this final order to the parties free of cost as per the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER