Hon’ble Mr. Ajeya Matilal, Presiding Member
This is an application filed by the Complainants u/s 17 of the C.P. Act, 1986. The fact of the case is in short like that the OP Nos. 3 and 4 are the landowners in respect of the scheduled property mentioned in the complaint.
OP No.1 is a Proprietorship Firm being represented by proprietor namely Sanjay Debnath i.e. the OP No.2. Carrying on their business of construction and development from their registered office at 2 No. Bacharpara, P.O and P.S Thakurpukur, South 24 Pgs. the OPs started a joint venture project for development and construction of a building on the land of OP Nos. 3 and 4.
The development agreement was entered into among the OPs on 16.12.2011. Following the development agreement, the OP No. 3 and 4 executed a Power of Attorney in favour of the OP No. 2.
The Complainant approached the OP Nos.1 and 2 and expressed their intention for purchasing the residential flat in the project. The OP nos.1 and 2 accepted the complainants’ proposal and agreed to sell a flat mentioned in the schedule for consideration of Rs. 25,98,750/- being calculated @ Rs. 3150 per sq. ft. On 18.08.2015 an Agreement for Sale was executed for purchasing a flat of more or less 825 sq. ft.
The complainant paid Rs. 15,10,000/- to the OP Nos. 1 and 2 on the date of execution of the agreement for sale. The agreement for sale is at annexure P1.
Thereafter the complainant inspected the flat and enquired about the area of flat. The OP stated to the Complainants that the flat was constructed as per sanctioned building plan. Subsequently, the OPs handed over a new site plan of the subject flat wherefrom it appears that the measurement of the subject flat was 810 sq. ft. super built up area which was prepared by an LBS. But the OPs directed the complainants to pay the balance consideration amount of the subject flat. The OP/ developer delivered site plan which is annexed at page 54 of the compliant. The complainant raised objection regarding measurement of the flat. Then the OP assured them to perform actual measurement of the flat and also stated that it should be done by them at the time of execution of the deed of conveyance.
The Deed of Conveyance was executed on 15.06.2016 between the parties. On that day the Complainants paid the balance consideration money of Rs.10,51,500/- and the deed of conveyance was also executed. It has been mentioned in the schedule of the Deed of Conveyance that the measurement of the flat in question is 810 sq.ft. The Complainant got possession of the same.
The Complainant after getting the physical possession of the flat appointed an LBS. The report of the LBS is found in running page no. 104 and 105 of the complaint.
It appears from the report of the LBS that the super built up area is 702 sq. ft. The Complainants thereafter made a representation to the OPs for redressal of grievances, firstly personally, thereafter through their Ld. Advocate. But the Complainants did not receive any reply. So, the Complainants filed their case.
It is also the case of the complainants that there were some defects on the construction including dampness etc. So, the Complainant filed this case with a prayer for direction upon the OPs to refund Rs.3,88,150/- along with interest @ 18% p.a., compensation of Rs.20,00,000/- and litigation cost of Rs. 50,000/-. It will not be out of place to mention that the cause of action of the complaint arose first on 18.08.2015 when the Agreement for Sale was signed and subsequently, on dates when the OPs did not refund the excess money, which was taken by them showing excess area of the subject flat.
OP Nos. 1 and 2 contested the case by filing W.V denying the material allegations of the complaint petition along with technical pleas. According to the answering OPs before execution of the Deed of Conveyance the flat, it was measured by LBS of the Complainant, Subir Kumar Kundu. As per report of LBS the measurement of the flat was 726 sq. ft. which is reflected in order no. 14 dt. 02.03.2020.
Subsequently, the same LBS measured the flat in question. It would reflect from the report of the LBS, i.e. the same LBS who measured the flat earlier, that the flat was of 702 sq. ft. enclosed in annexure 104 and 105 of the complaint.
In the W.V at para 9 and 10, it is admitted by the OPs that the measurement of the flat was 726 sq.ft.
According to the OPs, following request of the Complainants the area of the flat has been mentioned in the Deed of Conveyance as 810 sq.ft. It is also submitted that as per request of the complainant OPs made some extra works. On the basis of aforesaid averments, the OPs prayed for dismissal of the complaint case.
For proper adjudication of the disputes between the parties the following points are taken up for consideration:-
- Whether the Complainants are consumers?
- Whether there is any cause of action for filing the present complaint?
- Whether there was any deficiency in service?
- Whether the Complainants are entitled to relief as prayed for?
All the points are taken together for convenience.
It is undisputed that the entire consideration money, reflected in the Deed of Conveyance as at running page no.57 of the complaint, was paid and the total consideration money was Rs.25,51,500/-. The Ld. Advocate for the Complainant submitted that the total super built-up area of the flat was 810 sq.ft., as mentioned in the Deed of Conveyance. It would appear from Order No.14 dt.02.03.2020 passed by this Commission that the LBS had shown the measurement of the flat in question as 726 sq.ft. in spite of 810 sq.ft. as alleged in the Deed of Conveyance.
It would reveal from that order that the aforesaid LBS also filed another report, wherefrom it would appear that the measurement of the flat was 702 sq.ft. For removal of such anomalies an Engineer Commissioner was appointed by this Commission. The Engineer Commissioner had submitted report dt. 19.04.2022. It appears from report, in reply to question b., that he obtained the e-Assessment slip from the Directorate of Registration and Stamp Revenue and as per said slip, the super built-up area of the flat is 642 sq.ft.
It would appear from answer no.c mentioned in the Report of the Ld. Commissioner that the Ld. Commissioner found that there was some damp on the southern wall of western bedroom measuring about 7’7” X 2’0” and on the western wall of the kitchen there was a damp measuring about 3’-6”X 3’-6” and on drawing cum dining room there was a damp on wall 2’-8” X 2’-0” and 2’-3” X 2’-0”.
In spite of giving opportunities, the OPs did not file any W.O. against the report of the Ld. Commissioner. The OPs did not adduce any convincing evidence to substantiate that the report of the Ld. Commissioner was incorrect. So, we are of the view that the report of the Ld. Commissioner was not challenged by the Opposite Parties.
So, it would reveal from the report of the Ld. Commissioner that the total shortfall area was 168 sq.ft. The total consideration money was Rs.25,51,500/-, which would reveal form the Deed of Conveyance dt. 15.06.2016. So, as per Deed of Conveyance, the price for shortfall area of 168 sq.ft. would be Rs.5,29,200/-. In course of argument, the Ld. Advocate for the Complainant argued that the compensation should be awarded from the date of last payment i.e. from 15.06.2016.
It will not be out of place, that the Engineer Commissioner was appointed at the prayer of the Complainants. We have already mentioned that findings of the Ld. Commissioner were not disputed by the OPs.
We are of the view, the OP No.1 & 2 should be directed to pay Rs.5,29,200/- along with an interest @9% p.a. from 15.06.2016 i.e., the date of execution of sale deed and last payment made by the Complainants till the date of realisation and the aforesaid compensation will include the cost of repairing as mentioned in the report of the Ld. Commissioner.
It appears from this discussion that the Complainants are consumers and there was deficiency in service because of shortfall of area, as we mentioned earlier there is cause of action for this case and the Complainants are entitled to reliefs as prayed for.
So, all the points are decided accordingly in favour of the Complainants.
Hence it is
Ordered
The Consumer Complaint Case No. 68 of 2017 Is allowed, on contest, against the Opposite Party Nos.1 & 2 and ex-parte against the rest, with a litigation cost of Rs.15,000/- payable by the Opposite Party Nos.1 & 2 to the Complainants.
The OP Nos.1 & 2 are directed jointly and severally to refund Rs.5,29,200/- along with an interest @9% per annum payable from 15.06.2016 and litigation cost within 60 days from this Order, failing which it shall carry an interest in the same rate on the aforesaid sum from that day till the date of realisation of the entire amount.
Let a copy of this order be given to the Complainants free of costs.
