The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/purchasers against the developer firm and its partners on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

          Succinctly put, complainants’ case is that on 04.09.2013 they booked one 2 BHK flat by issuing a crossed cheque in favour of OP No.1/developer firm.  Subsequently, the OP No.1/firm allotted one residential flat measuring about 985 sq. ft super built up area on the 3^rd floor being Flat No.301 with undivided proportionate share of land and building and a car parking space of 120 sq. ft. on the ground floor at Municipal Holding No.174, Seth Colony, P.S.-Dum Dum, Kolkata- 700030, District- North 24 Parganas, within the local limits of Ward No.17 of South Dum Dum Municipality at a total consideration of Rs. 29,80,000/-.  After execution of Agreement for Sale on 30.10.2013, the complainants paid full consideration except Rs.34,000/- part of last instalment to be paid on or before execution of Deed of Conveyance, in a phased manner as mentioned in the Agreement for Sale.  It was agreed that the Deed of Conveyance will be executed on 15.10.2015 and accordingly the complainants purchased demand draft from SBI, Shaktigarh Branch and informed the developers.  But the developer demanded an additional sum of Rs.70,000/- over and above Rs.29,80,000/- on the plea of additional 22 sq. ft.  Accordingly, complainants paid Rs.29,80,000/- + Rs.70,000/- = Rs.30,50,000/- in favour of the developer and on payment of the same, on 15.10.2015 a Sale Deed was executed.  The complainants have alleged that after taking possession, they found that the measurement of the flat is much less than mentioned in the Deed of Conveyance.  Accordingly, they carried out the measurement through one Licensed Building Surveyor (LBS) and it was found that the measurement of the said flat is 673.25 sq. ft. and 705.36 sq. ft. as the carpet area and covered area respectively and the developer has erroneously calculated the measurement of the flat as 1007 sq. ft.  Similarly, the car parking space was found measuring about 92.75 sq. ft. instead of 120 sq. ft. carpet area.  Hence, the complainants have lodged the complaint with prayer for several reliefs, viz.- (a) refund a sum of Rs.6,36,720/- (Rs.5,66,720/- + Rs.70,000/- ) along with interest  @12% p.a. w.e.f. the date of payment till the date of realisation; (b) to provide a car parking space measuring about 120 sq. ft carpet area; (c) to provide Completion Certificate issued by the appropriate authority; (d) compensation of Rs.15,00,000/- for harassment and mental agony; (e) litigation cost etc.

          The Opposite Parties after entered appearance could not file written version within the stipulated period and as such the case was running ex-parte.  Thereafter, the opposite parties preferred an appeal being FA/785/2017 in the Hon’ble National Commission and the Hon’ble National Commission by Order dated 18.09.2017 disposed of the appeal by allowing the opposite parties to file written version within a period of 15 days from date subject to payment of Rs.25,000/- to the complainants within a period of two weeks.  However, the opposite parties have failed to comply with the said order of the Hon’ble National Commission and as such the written version filed by the opposite parties could not be accepted.  However, keeping in view the observation of the Hon’ble Supreme Court reported in 1988 (4) SCC 619 [Modula India – Vs. – Kamakshya Singh Deo] the OPs were given opportunity to file questionnaire and to address argument in respect of complainants’ case but the OPs did not avail that opportunity.  

          In support of their case, complainants have tendered evidence through affidavit.  They have also annexed several documents in support of their case including the report of LBS.  I have considered the submission made by Mr. U.N. Choudhury, Ld. Advocate appearing for the complainants appointed through the Legal Aid and also scrutinised the materials on record.

          On perusal of averment in the petition of complaint, the evidence through affidavit and the documents annexed therewith, it has come to surface that the complainants being residents of Village-Putunda, P.O. Shaktigarh, Dist- Burdwan have been suffering from visionary disability.  However, on the basis of an advertisement of construction of G+4 Premium Residential Flat at Seth Bagan area which is about one kilometre from Dum Dum Metro Railway Station, the complainants considered to buy a flat and came into contact with the developer and on 04.09.2013 booked a 2 BHK Flat.  Accordingly, the OPs/developer allotted one residential flat measuring about 985 sq. ft super built up area on the 3^rd floor being Flat No.301 with undivided proportionate share of land and building and a car parking space of 120 sq. ft. on the ground floor at Municipal Holding No.174, Seth Colony, P.S.-Dum Dum, Kolkata- 700030, District- North 24 Parganas, within the local limits of Ward No.17 of South Dum Dum Municipality at a total consideration of Rs. 29,80,000/-.  On 30.10.2013 an Agreement for Sale was executed and the complainants have paid the entire consideration amount excepting Rs.34,000/-.

          The complainants had an intention to get the Deed registered in favour of them before Durga Puja Festival and with that aim in view, they have made contact with the developer and purchased the stamp paper etc.  However, the developer claimed additional sum of Rs.70,000/- on the pretext that the final measurement of the said flat became 1007 sq. ft. in place of 985 sq. ft.  The complainants have paid full consideration of Rs.29,80,000/- + Rs.70,000/- totalling Rs.30.50,000/- in favour of the developer and a Deed of Conveyance was executed on 15.10.2015.

          After obtaining possession, the complainants raised doubt as to the size of the flat.  Accordingly, at their instance one Sri Bhaskar Pal, LBS of South Dum Dum Municipality measured the size and on measurement, it comes to surface that the carpet area of the flat was 673.25 sq. ft. and the garage area is 92.75 sq. ft.  The fact remains that after getting possession, the complainants came across a Deed of Conveyance dated 25.02.2016 executed between one Nikhil Kumar Nath and the developer and on perusal of Deed of Conveyance, it reveals that an identical flat situated at 1^st floor of the same building where the said flat of the complainants is situated, was transferred in favour of the said Nikhil Kumar Nath and the measurement of the said flat has been indicated as 985 sq. ft. super built up area.  The complainants being senior citizens having visionary problems reposed complete faith upon the builder.  However, on measurement of the said flat by LBS, it was found that the measurement of the said flat is 673.25 sq. ft. and 705.36 sq. ft. as the carpet area and covered area respectively.  As per the measurement, the carpet area of the said flat is 673.25 sq. ft. and if 20% as super built up area on 673.25 sq. ft. is added, the total super built up area comes to 807.9 sq. ft. (673.25 sq. ft. + 134.65 sq. ft.).  In fact, taking advantage of age and physical deficiency of the complainants, the developer duped the complainants. 

          So far as the car parking space is concerned,  in the 2^nd Schedule of the Sale Deed before the words Car Parking Space, the words ‘Open to Sky’ has been written by pen and there is no initial or any stamp showing the genuiness of the said handwriting and on the contrary Paragraph-2 of inner page 09 of the Deed of Conveyance there is no specification as to providing the car parking space ‘Open to Sky’.  As per Deed of Conveyance, the developer is duty bound to provide one car parking space, being no.2 consisting an area of 120 sq. ft. super built up area at ground floor.  In respect of Open Car Parking Space, question of super built up area, as replied by the opposite parties through their Advocate dated 16.11.2016 does not stand.

          Considering the facts and circumstances of the case and relying upon the materials on record, it appears that the complainants hired the services of the opposite parties, but the opposite parties were found not only deficient in rendering services towards the complainants but also adopted an unfair trade practice by providing a less saleable area than the consideration price.  Accordingly, the complainants are entitled to some reliefs.  In my view, the complainants are entitled to refund of a sum of Rs.6,36,720/- (Rs.5,66,720/- + Rs.70,000/-), also entitled to a car parking space measuring about 120 sq. ft. and also Completion Certificate from the competent authority.  The conducts of the opposite parties was harassing in nature which in turn causes serious mental agony and harassment to the complainants for which they are entitled to compensation and considering the loss suffered by them, I think a compensation in form of interest @ 12% p.a. over the amount of Rs.6,36,720/- from the date of Deed of Conveyance i.e. from 15.10.2015 till the date of payment will meet the ends of justice.  As the situation compelled the complainants to lodge the complaint, they are entitled to litigation cost which I quantify at Rs.10,000/-.

          With the above discussion, l dispose of the complaint with the following directions:

1. The Opposite Parties are jointly and severally directed to refund of Rs.6,36,720/- in favour of the complainants within 60 days from date;
2. The Opposite Parties are jointly and severally directed to pay compensation in the form of simple interest @12% p.a. over the amount of Rs.6,36,720/- from 15.10.2015 till its full realisation.
3. The Opposite Parties are directed to provide a car parking space being No.2 measuring about 120 sq. ft.;
4. The Opposite Parties are also directed to obtain Completion Certificate from the appropriate authority within 90 days from date and to hand over an authenticate copy of the same to the complainants;
5. The Opposite Parties are further directed to pay Rs.10,000/- to the complainants as costs of litigation to be paid within 30 days from date otherwise the same amount shall carry interest @8% p.a. from date till its recovery.