This is a complaint made by Smt. Niva Rani Pathak, wife of Late Heramba Nath Pathak of Flat No.201, 2nd fl., P-31, Senhati Colony, P.S.-Behala, Kolkata-34, Sri Sanjoy Kumar Pathak, son of Late Heramba Nath Pathak, of Flat No.201, 2nd fl., P-31, Senhati Colony, P.S.-Behala, Kolkata-34, Smt. Smriti Bhattacharjee, wife of Late Prodyut Kumar Bhattacharjee, of P-Z, 242, Raj Nagar Part II, Alok Marg, Goli No.4, Palam Colony, New Delhi 110 045, Smt. Sukla Bhattacharya, wife of Sri Govinda Kripa Bhattacharya, of 154, Mission Para, P.O.-Rahara, P.S.-Khardah, Kolkata-118 against M/s Ganapati Builders, prayed for an order (a) directing the OP No.1 to pay Rs.2,56,520/- for compensating the shortfall area of the flats 64.13 sq.ft to be calculated @ Rs.4,000/- per sq.ft, (b) directing OP No.1 to obtain the completion certificate from the KMC, (c) for issuance of possession letter, (d) Rs.3,00,000/- for sufferings of mental agony and physical harassment and (e) Rs.30,000/- for litigation cost.
Facts in brief are that Complainant and proforma OP No.2 are the joint owners of the premises No. 359, Pashupati Bhattacharjee Rd., P.S.- Behala, Kolkata-41, South 24-Parganas. Complainant and proforma OP No.2 entered into an agreement for development with the OP No.1 on 20.11.2012 before the Additional District Sub Registrar at Behala being deed o.10924 for 2012. They jointly executed a general power of attorney in favour of OP No.1for the development agreement Complainant and proforma defendant were to get two flats one at the ground floor measuring 600 sq.ft. and the other at top floor of 600 sq.ft.
OP No.1 constructed a two storied building by obtaining sanctions plan from KMC, but built up two flats of 598.42 sq.ft. and 537.45 sq.ft., in place of 600 sq.ft. beyond the period of stipulation and violation of the terms of the agreement. It was the obligation to the OP to hand-over two flats of 600 sq.ft. each. But , OP No.1 handed-over two flats having a shortage area of 64.13 sq.ft. Further, OP No.12 did not construct the flats as per the agreement. So, Complainant filed this case praying for refund of Rs.2,56,520/- calculating it @ Rs.4,000/- per sq.ft.
OP has filed written version wherein he has denied the allegations leveled by the Complainant and proforma defendant. But OP has admitted that there was shortage of 40 sq.ft. Further, OP has stated that rate of flat at the time it was sold was Rs.2,250/- per sq.ft. and not Rs.4,000/- per sq.ft. as wrote by the Complainant and proforma defendant. So, OP No.1 has prayed for dismissal of this complaint.
Decision with reasons
Complainant has filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. OP though filed written version, but did not file questionnaire and as such the case was fixed for argument.
Main point for determination is whether the Complainant and the Proforma defendant are entitled to refund Rs.2,56,520/- as claimed.
In this regard, it appears that there is nothing in the form of document on behalf of the Complainants establishing the real measurement of the shortage of area. In such a circumstances, the demand of the OP No.1 has to be admitted and Forum has no other alternative but to accept that there was shortage of only 40 sq.ft.
Further, the dispute relates to the cost of the flat per sq.ft. Complainant has alleged that the present rate of the flat is Rs.4,000/- sq.ft. On the contrary, OP has alleged that it was sold @Rs.2,250/- per sq.ft. and so Complainants cannot claim @ Rs.4,000/- per sq.ft.
From any prudence, it is clear that the contention of any allegation with OP sold the flat at the time when the rate was Rs.4,000/- per sq.ft. The agreed rate at the time when it was sold is calculated and accepted and in all probability it would be Rs.2,250/- per sq.ft. Accordingly, if it is calculated @ Rs.2,250/- the amount comes to Rs.90,000/- for which the Complainant including proforma defendant are entitled in addition Complainants are entitled to Rs.10,000/- as compensation and Rs.5,000/- as litigation cost. So, the total amount comes to Rs.1,05,000/-. There are four Complainants and one proforma OP who are entitled to this amount and each will get Rs.21,000/- .
Hence,
ordered
CC/233/2016 and the same is allowed in part on contest. OP No.1 is directed to pay Rs.21,000/- to each of the Complainants as well as to the proforma OP No.2.
