HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1.           The instant complaint under section 17 of the Consumer Protection Act, 1986 ( in short ‘the Act’) is at the instance of the complainants against the Opposite parties on the allegation of deficiency in services on the part of the Opposite parties in a consumer dispute of housing construction.
2.           The complaint case in short is that :-

        Both the complainants are husband and wife in relation. The Opposite party No. 1 is a Developer and is a partnership firm represented by its partners, the Opposite party Nos. 2 to 4. The Opposite party Nos. 5 to 7 are joint owners of all that piece and parcel of land measuring about 7 cottahs, 4 chittaks and 20 sq.ft. more or less lying and situated at mouza Satgachhi, J.L. No. 20, Touzi No. 160, R.S. Dag No.2683 under R.S. Khatian No.112, corresponding to L.R. Dag No.2096 under L.R. Khatian No.1248, 1053 and 570 under Municipal ward No.25 at premises No. 39 Gorakshabashi Road, P.S. Dum Dum, Kolkata – 700 028.

3.           The Opposite party No. 5 to 7 expressed their intention to construct one multi-storied building over their land and accordingly approached the Opposite party No. 1 and entered into a development agreement on 23/08/2013 with the Opposite party No. 1 for construction of the multi-storied building on the said plot. The Opposite party No. 5 to 7 also executed one registered Power of Attorney in favour of the Opposite party No. 2 to 4 on 23/08/2013 and subsequently, the Opposite party No. 1 to 4 obtained sanctioned plan from the South Dum Dum Municipality vide plan No. 31 dated 23/05/2014 and thereafter, Opposite party No. 1 to 4 started construction work.
4.           Further case of the complainants is that the complainants were in search of suitable accommodation for their residential purpose and they came to know about the development and construction of the multi-storied building by the Opposite party No. 1 to 4 at the said premises. Accordingly, the complainants approached the Opposite party No. 1 to 4 and expressed their intention to purchase one residential flat at the 4^th floor being flat No. ‘B’ measuring about 816 sq. ft. super built up area consisting of two bed rooms, one living / dining room, one kitchen, two toilets and one balcony together with one car parking space in car parking No. 4 on the ground floor measuring about 150 sq. ft. building named as ‘Nityananda Residency’ at a total consideration price of Rs.36,50,800/- (Rupees thirty six lakh fifty thousand and eight hundred ) only and accordingly booked the flat on 9/5/2014 by paying Rs.1,00,000/- (Rupees one lakh) only and subsequently on 15/06/2014 paid Rs.6,29,160/- (Rupees six lakh twenty nine thousand one hundred and sixty) only and cash deposit of Rs.999/- on 23/06/2014, total deposit Rs.7,30,160/- (Rupees seven lakh thirty thousand one hundred and sixty) only. The Opposite parties subsequently executed one registered agreement for sale dated 10/05/2016 and acknowledged such payment under memo of consideration.
5.           Further case of the complainant is that to purchase the flat in question, the complainants obtained house building loan from LIC Housing Finance Ltd. for an amount of Rs.29,20,640/- (Rupees twenty nine lakh twenty thousand six hundred and forty) only which has been sanctioned on 26/03/2016.
6.           Further case of the complainant is that LIC Housing Finance Ltd. subsequently disbursed Rs.15,00,000/- (Rupees fifteen lakh) only on 29/03/2016 and Rs.8,50,000/- (Rupees eight lakh and fifty thousand) only on 22/11/2016 in favour of the Opposite party No.1 to 4 and accordingly, the complainants made payment of Rs.30,80,160/- (Rupees thirty lakh eighty thousand one hundred and sixty) only out of total consideration price of Rs.36,50,800/- (Rupees thirty six lakh fifty thousand and eight hundred) only which includes the cost of the flat plus cost of car parking space.
7.           Further case of the complainant is that as per the agreement for sale dated 10/05/2016 the Opposite parties will complete the sale transaction within a period of 24 months from the date of agreement.
8.           Further case of the complainant is that there is a huge shortfall and the Opposite parties knowing fully well about the shortfall tried to convince the complainants that the measurement of the flat is according to the agreement for sale which amounts to gross deficiency in service as well as unfair trade practice on their part. The complainants immediately sent one legal notice dated 25/09/2017 upon the Opposite parties No. 1 to 4 intimating the actual measurement of the flat in question, huge shortfall area causing shortage of area for proper accommodation of the family members of the complainants. Thereafter, the complainants through their said legal notice requested the Opposite party No. 1 to 4 to return (back) the deposited amount of Rs.30,80,160/- (Rupees thirty lakh eighty thousand one hundred and sixty) only along with interest with further amount of Rs.2,50,000/- (Rupees two lakh and fifty thousand) only which the complainants paid for registration of agreement for sale dated 10/05/2016.
9. The Opposite party No. 1 to 4 have denied the claim of the complainants and submitted that as per their measurement through their engineer, there is a shortfall of 22 sq. ft. from the area agreed to be sold and finally comes the actual measurement about 794 sq.ft. super built up area.  The Opposite party No. 1 to 4 denying the measurement conducted by the LBS appointed by the complainants and requested to take possession of the flat in question after payment of balance consideration amount.
10. Further case of the complainant is that Opposite parties failed to provide the flat in question with 816 sq. ft. measurement and there is a shortfall of 100 sq. ft. Therefore, the complainants are not in a position to take the possession of the flat and accordingly, requested the Opposite parties for refund of money which the Opposite parties denied.
11. Hence, the complainants approached this Commission with a prayer for the following reliefs viz. –

(i)  To admit and register the complaint;

(ii)  After hearing pleased to direct the opposite parties to return back the deposited / paid amount of Rs.30,80,160/- along with 18% interest;

(iii)  To direct the opposite parties to pay cost of registration Rs.2,50,000/-;

(iv)   To award compensation to the tune of Rs.10,00,000/- due to harassment, mental agony and financial loss;

(v)    To award litigation cost of Rs.50,000/-;

(vi)   To pass other orders as His Lordship may deem fit and proper;

12. All the Opposite parties entered appearance in this case and filed their written version.
13. Though the Opposite parties No. 5 to 7 entered appearance and filed written version in this complaint case but they did not adduce any evidence in support of their case and they declined to file evidence. Ultimately, Opposite parties No. 5 to 7 did not contest the case nor participated in the final hearing of the case.
14. The Opposite parties No. 1 to 4 filed written version denying the allegations as made in the petition of complaint against them. The specific case of the Opposite party No. 1 to 4 is that on completion of the construction when the area of the flat was measured by the empanelled engineer and surveyor of the Opposite parties No. 1 to 4 it was found that the area of the subject flat has been reduced and demolished to 794 sq. ft. more or less including super built up area. The complainants delayed the matter and were found reluctant to take possession of the flat and thereafter sent a notice on 07/10/2017 through an Advocate without any basis on full and/ or false information.
15. Further case of the Opposite parties No. 1 to 4 is that the construction of the flat of the Opposite parties No. 1 to 4 calculated the actual price of the flat as per the actual measurement @ Rs.3800/- per sq. ft. on 794 sq. ft. more or less super built up area which came to be Rs.30,17,200/- (Rupees thirty lakh seventeen thousand and two hundred) only and adding Rs.5,50,000/- (Rupees five lakh and fifty thousand) only at the price of the open car parking space and the total price comes to Rs.35,67,200/- (Rupees thirty five lakh sixty seven thousand and two hundred) only out of which Opposite parties No. 1 to 4 has received from time to time Rs.30,79,160/- (Rupees thirty lakh seventy nine thousand one hundred and sixty only) from the complainants, so, an amount of Rs.4,88,040/- (Rupees four lakh eighty eight thousand and forty) only is still lying due or unpaid to Opposite parties No. 1 to 4.
16. During the course of construction as per the sanctioned building plan’s design, the area of all the flats in the east, south portion got reduced to 2225 sq. ft. respectively including super built up area on an average. The complainants were requested on several occasions to take possession and to complete the final registration on payment of balance consideration money but the complainants failed and neglected to do so, rather filed the present case on false and vexatious grounds, with an oblique reason with an intention to get some unjust benefits.
17. Both the complainants and the Opposite parties No. 1 to 4 tendered evidence through affidavit. Both the parties have also given reply against the questionnaire filed by the respective parties.
18. We have considered the submissions made by Learned Advocates of both sides and scrutinized the materials on record.
19. Upon hearing both sides and on perusal of the record it appears to us that it is an admitted position that the complainant entered into an agreement to purchase the flat at a total consideration price of Rs.36,50,800/- (Rupees thirty six lakh fifty thousand and eight hundred) only . It is also an admitted position that the complainant paid Rs.30,79,160/- (Rupees thirty lakh seventy nine thousand one hundred and sixty) only out of the total consideration money of Rs.36,50,800/- (Rupees thirty six lakh fifty thousand and eight hundred) only. It is also an admitted position that the Opposite parties registered one agreement for sale dated 10/05/2016 and acknowledged payment under memo. of consideration.
20. The overwhelming evidence on record makes it abundantly clear that the Opposite party No. 1 is a Developer and is a partnership firm represented by its partners, the Opposite parties No. 2 to 4. The Opposite party No. 5 to 7 are joint owners of the land. It also appears to us that Opposite party No. 1 and Opposite party No. 5 to 7 entered into a development agreement on 23/08/2013 for construction of a multi-storied building on the said plot of land. It also appears to us that Opposite party No. 5 to 7 executed one Power of Attorney in favour of Opposite party No. 2 to 4 on 23/08/2013 and Opposite party No. 1 to 4 subsequently obtained sanctioned plan from the South Dum Dum Municipality vide plan No. 31 dated 23/05/2014. Thereafter, the Opposite party No. 1 to 4 started construction work.
21. It is in evidence that the complainants approached the Opposite party No. 1 to 4 and expressed their intention to purchase one residential flat at the 4^th floor being flat No. ‘B’ measuring about 816 sq. ft. super built up area consisting of two bed rooms, one living / dining room, one kitchen, two toilets and one balcony together with one car parking space being car parking No. 4 on the ground floor measuring about 150 sq. ft. building named as ‘Nityananda Residency’ at a total consideration price of Rs.36,50,800/- (Rupees thirty six lakh fifty thousand and eight hundred) only. Accordingly, complainants booked the flat on 9/5/2014 and the Opposite parties subsequently executed one registered agreement for sale on 10/05/2016.
22. It is the case of the complainant that there is a huge shortfall and the Opposite parties knowing fully well about the shortfall tried to convince the complainants that measurement of the flat is according to the agreement for sale. On the other hand, it is the case of the Opposite parties that there is a shortfall only about 22 to 25 sq. ft.
23. For ascertaining the real controversy with regard to the deficiency in respect of the allegations of shortfall, at the behest of the complainant one LBS was appointed who measured the concerned flat. Report of the LBS namely Pradip Kanti Bakshi, is available with the record. After inspection, LBS namely Pradip Kanti Bakshi has submitted a report that there is a shortfall measuring about 100 sq. ft. On the contrary, it appears from the reply given by the  Opposite party No. 1 to 4 admitted in their reply dated 07/04/2017 that there is a shortfall measuring about 22 sq. ft. only.
24. In the premise, it can safely be hold that the Opposite parties failed to provide the flat in question with 816 sq. ft. measurement as per the agreement for sale dated 10/05/2016 and there is a shortfall. Since there is a shortfall, the complainants are not in a position to take possession of the flat and accordingly requested the Opposite parties to refund of money.
25. Under this facts and circumstances and on the consideration of the materials on record it appears to us that instead of the flat of area of 816 sq. ft. a flat of area of 794 sq. ft. of flat has been only offered to the complainants which does not fulfill the requirement of the complainants. It is palpably clear that the Opposite parties No. 1 to 4 could not keep their promise as stated in the agreement for sale dated 10/05/2016. Therefore, we are of the view that as there is a shortfall, this Commission can direct to refund of the amount and to compensate the complainants for  the deficiency not delivering the flat as per the terms of the agreement.  The same is within the jurisdiction of this Commission.

26. Hon’ble National Commission in 2019 (1) CPR 146 (NC) (Satyaprasad Agarwal Vs. Tashee Land Developers Pvt. Ltd.), (The Hon’ble National Commission) held thus :-

“6. I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record. The builder-buyers agreement clearly states that the possession will be handed over within 36 months plus 6 months grace period from the date of approval of building plan. The building plan was approved on 07.6.2012 and therefore, the possession was due on 07.12.2015. The possession was clearly not handed over to the complainant. The opposite party sent a letter dated 16.06.2017 to the complainant informing reduction in the area of the flat from 2675 sq.ft. to 2359 sq.ft. The argument of the opposite party is that this area has been changed due to revised plan, which was approved by the Di rector General of Town and Country Planning, Haryana on 09.12.2016. It has also been stated by the learned counsel for the opposite party that a letter dated 03.10.2016 was sent to the complainant for making any objection to the revised plan before the Director General of Town and Country Planning, Haryana and no objection was raised. Builder-buyers agreement was signed on 15.04.2013 and therefore, it cannot be related to the revised plan dated 09.12.2016. Thus, the agreement was clearly in respect of the building plan sanctioned by the Director General of Town and Country Planning, Haryana on 07.06.2012. Clearly the opposite party had the option of getting the building plan changed after the approval of the competent authority and the same has been done, however, there cannot be any binding on the allottee as per the builder-buyer agreement dated 15.4.2013 to accept the revised plan. Hence, if the complainant is refusing to take the possession of the flat with lesser area, the complainant is fully justified. As the opposite party is not in a position to deliver the possession of the flat with area of 2675 sq.fit., only remedy to the complainant is to get refund of the amount deposited by the complainant with the opposite party.”

27. In view of the above decision of the Hon’ble National Commission, we hold that the complainant is entitled to refund of the money paid by them along with appropriate compensation in the form of interest for the financial loss and for mental agony and harassment suffered by them on account of the failure of the Opposite parties to deliver possession of the flat booked by them.
28. The complainant has prayed for refund of the money amounting to Rs.2,50,000/- (Rupees two lakh and fifty thousand) only which was paid by them for the cost of registration. Copy of assessment slip issued by the Directorate of Registration and Stamp Revenue, Govt. of West Bengal (page 41) discloses that Rs.2,19,342/- (Rupees two lakh nineteen thousand three hundred and forty two) only was paid to the Govt. of West Bengal towards the stamp duty. Therefore, it can be said that the said amount of Rs.2,19,342/- was not received by the Opposite parties No. 1 to 4. The Opposite party Nos. 1 to 4 are only liable to refund the amount which the complainants paid to them for purchase of the flat in question along with interest on that amount only. Therefore, it can safely be said that the Opposite parties No. 1 to 4 are not bound to refund the said amount of Rs. 2,19,342/-.
29. Based on the above discussion, the complaint case filed by the complainants is allowed in part. The complaint case is dismissed against the Opposite party Nos. 5 to 7.
30. The Opposite party No. 1 to 4 is directed to refund the deposited amount of Rs.30,79,160/- (Rupees thirty lakh seventy nine thousand one hundred and sixty ) only to the complainants along with 9% per annum interest from the date of respective deposits till the actual payment. The Opposite party No. 1 to 4 shall pay a sum of Rs.10,000/- (Rupees ten thousand) only as cost of litigation to the complainants.
31. This order be complied with by the Opposite parties No. 1 to 4 within a period of 45 days from the date of the receipt of the order. The complainant case is thus disposed of accordingly.
32. If the Opposite party No. 1 to 4 fail to comply with the direction made above within the period mentioned above, then the complainants are at liberty to get the order implemented with due course of law.
33. Let a plain copy of the judgment be given to the complainants free of cost. A copy also be served upon the Opposite parties No. 1 to 4 by Registered post / Speed post with A/D as early as possible.