- Mr. Debasish Mandal,
Sukalyani Apartment, Flat No.N/2,
5A & 5B, Nirode Behari Mullick Road, Kolkata-6 and
2A, Khas Mahal Street,
P.S. Maniktala, Kolkata-6. _________ Complainant
____Versus____
- M/s Sukalyani CIL Women
Welfare Organisation.
- Dr. Mrs. Reba Roy, President.
- Mrs. Bharati Mukherjee, Secretary.
- Mrs. Susmita Sengupta, Treasurer.
All of CE 178, Salt Lake, North, Kolkata-64.
- The Kolkata Municipal Corporation,
5, S.N. Banerjee Road, Kolkata-13.
- The Assistant Assessor- Collector (N),
Kolkata Municipal Corporation,
5, S.N. Banerjee Road, Kolkata-13. ________ Opposite Parties
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 88 Dated 28/07/2015.
The case of the complainant in short is that complainant had hired for a valuable service of o.p. nos.1 to 4 (herein after referred to as o.ps.) to purchase a residential flat which is presently being occupied and used by complainant exclusively for his own residential domestic purpose. The flat has been occupied and used by complainant after paying valuable consideration by complainant. O.p. no.1 constructed the flat and having their offices outside the territorial limit of this Forum. However, substantial part of cause of action arose within the territorial limit of this Forum since the housing complex in reference is within the territorial limit of this Forum. The dispute arose after the possession of the flat on or about 8.3.05 and continued day to day till 17.2.06 when o.ps. published the ‘area statement’ and put up the same on the notice board of the housing complex. Such cause of action is continued day to day since the dispute persists and the flat in question has not been registered in the name of complainant till date. Complainant sought for the relief for removal of deficiency of service along with compensation within the scope and ambit of C.P. Act. Complainant is the owner of the flat bearing no.N/2 on the 2nd floor of ‘Sukalyani Apartment’ at 5A & 5B Nerode Behari Mullick Road and also covered by 2A, Khashmahal Street, P.S. Maniktala, Kolkata-700006. With the sole intention having a roof above his head complainant hired the services of o.ps. for the purpose of procuring a small residential flat at the housing complex being constructed by o.ps. By virtue of an instrument of an allotment letter dt.26.4.01 o.ps. agreed to handover possession of a self contained flat measuring super built up area of 1080 sq.ft. and further agreed to transfer and register such flat in favour of the complainant by virtue of schedule ‘B’ and Clause ‘M’ of the agreement dt.26.4.01. Complainant paid total consideration of Rs.11,34,000/- for the flat @ Rs.1050/- per sq.ft. by way of six installments and the same duly received by o.ps. Complainant was compelled to pay a further sum of Rs.54,000/- to o.ps. on the ground of escalation charges which was arbitrarily fixed by o.ps. @ Rs.50/- per sq.ft. Complainant took the possession of the flat on 8.3.05. Soon after taking the possession of flat it was noticed by complainant that the super built up area was less than 1080 sq.ft. which was promised by o.ps. Complainant vide letter dt.14.5.05 demanded adequate explanation for such short fall. Complainant has also stated in his petition that o.ps. rebutted their stand regarding the measurement of the flat vide their notice dt.17.2.06 hanging on the notice board in the housing complex. The flat has not been transferred and registered in favour of the complainant in spite of due payment of entire consideration. Hence the application praying for a direction upon the o.ps. to transfer and register the flat in question in favour of the complainant along with compensation for shortfall in respect of the measurement of the flat and delayed delivery of the possession and litigation cost.
O.ps. appeared in this case by filing w/v. In their w/v they have denied all the material allegations interalia stated that ‘Sukayani CIL Women Welfare Organization’ is the registered society under the West Bengal Societies Registration Act having its registered office at CE 178, Salt Lake, Kolkata-64. The said society was formed with main object to build houses for women employees of Coal India Ltd. (CIL) in service or retired in view of acute housing problem faced by women employees. O.p. no.1 purchased 48 cottah of land at Nerode Behari Mullick Road, Maniktala area in June 1999 and built housing complex consisting of 78 flats of various sizes. After meeting the requirement of flats by female and male employees of CIL, some of the surplus flats were allotted to relatives of the employees and a few were allotted to outsiders mainly from service background. O.p. engaged Dulal Mukherjee and Associates, one of the most eminent architects for planning and supervision and M/s Sapoorji Pallonji, a renowned firm of India for construction of housing complex. The allottees of the flats were involved through out the project and they had made payment in installments and they were well conversant about the plan of the building and super built up area and built up area. Possession of the flats was duly taken by allottees. The present complainant took the possession of the flat much earlier. The allottees were aware of the fact regarding the gap between super built up area and built up area. Regarding delay in registration o.ps. stated that they had requested the allottees to register the sale deed much earlier but due to modification sought by some of the allottees the sale deed was finalized only in March 2006. A notice dt.10.3.06 was issued by the organization requesting the allottees to get their sale deed registered. Complainant took the possession of the flat on 17.12.03 and not on 3.5.04 as alleged. The dispute regarding area of the flat was also denied by o.ps. O.ps. had also stated in their w/v that Rs.54,000/- was not paid by complainant under compulsion since the demand was not arbitrary. They had also issued proper receipt thereto. The escalation charges were fixed for strengthening the structure of the flat for additional precaution. O.ps. also stated that the instant case is barred by limitation. As such, they prayed for dismissal of the case with cost along with direction upon the complainant to pay the arrear of the service charges amounting to Rs.5346/- along with interest @ 18% p.a.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular. The first question for consideration is whether the case is barred by limitation or not. It is admitted fact that provisional allotment letter issued by o.ps. signed on 26.4.01. But till date the deed of conveyance of the flat in question has not been executed and registered. So, the cause of action is continuing the case is maintainable before this Forum.
It is to be noted that o.ps. already filed a petiton u/s 35 of indian Stamp Act for impounding the allotment letter dt.26.4.01 following the direction of Hon’ble National Commission vide R.P. No.1077 of 2014 dt.20.3.14. That petition was rejected on contest vide order no.76 dt.14.8.14 passed by this Forum.
It is admitted fact that upon contact with the concerned o.ps. the complainant decided to take a residential flat from o.ps. and o.ps. confirmed the same and complainant was asked to make the payment of cost in seven installments since the construction of the proposed apartment was not undertaken, no booking could be made and complainant upon being satisfied with the documents shown to him about the proposed construction work to be undertaken by o.ps. agreed to pay the installment amounts in lieu of money receipt promised to be made over to him. Accordingly, complainant paid his first installment amounting to Rs.1,90,000/- on 11.12.1996. On 26.4.01 complainant was provisionally allotted a flat being no.N/2 in the said proposed apartment situated at 5A, Nerode Behari Mullick Road, Kolkata-700006 called the Sukalyani Housing Complex. A provisional letter of allotment was duly handed to him on the same date. Although possession of the flat had not been handed over to complainant, he received a written communication dt.1.11.03 from o.p. no.2 demanding a further sum of Rs.54,000/- towards the cost of escalation @ Rs.50/- per sq.ft. and previous due of Rs.1 lakh and complainant duly paid the same. Complainant paid Rs.11,88,000/- including the escalation charges. Complainant was finally handed over the possession of the said flat on 8.3.05 though the date of possession was promised as on March, 2003 and the possession letter was duly issued to that effect. It is also admitted fact that complainant noticed the gap between the declared super built up area of Rs.1080 sq.ft. and the actual measurement of his flat. Prompted by inaction on the part of o.ps. the complainant sometimes in April 2005 conducted a measurement of the carpet area of his flat and it was noticed that the area of the flat is 930.06 sq.ft. With the claim of compensation for anomaly in measurement o.ps. did not pay any heed for a long time and ultimately on 17.2.06 they published an area statement of the flat purported to have been certified by their architect by displaying the same on the notice board of the such housing complex.
The moot question for consideration is whether the delivery of possession to the complainant was given in time or not and why the deed of conveyance has not been executed and registered till date. It is admitted fact that the proposed date of possession was given to complainant as on March, 2003 and he was given the physical possession of the flat on 8.3.05. O.ps. did not produce any document which shows that what prevented them to deliver the possession of the flat in question to complainant in time. It is admitted fact that o.ps. received the complaint from the owners of the flat for the shortcoming in measurement of the flat. They have published the statement of Dulal Mukherjee and Associates in the notice board of the housing complex that “We would like to mention that for obtaining the completion certificate of the said building from KMC, extensive measurements were taken jointly with KMC and declaration of the areas of different flats and common areas were made based on those measurements which were accepted by KMC. However, if you inform us the way of measurement adopted by the flat owners for the calculation of the super built up area we will try to solve the problem”. This statement was given by Dulal Mukherjee and Associates forwarded to President of o.p. no.1 i.e. o.p. no.2. But though o.ps. received the complaint from the complainant for short fall in measurement they did not take any initiative to solve the problem by calling upon Dulal Mukhjerjee and Associates. Moreover, no document has been produced by o.ps. which shows any cogent reason for which o.ps. were unable to perform the registration of the flat in question. O.ps. delivered the possession of flat much later than the scheudled date without showing any reasonable ground. Till date the deed of conveyance of the flat in question has not been registered by them. O.ps. did not take any initiative to get the flat registered. Therefore, we find deficiency in service on the part of o.ps. and as such, complainant is entitled to relief.
Hence, ordered,
That the case is allowed on contest with cost against the o.p. nos.1 to 4 and dismissed ex parte against o.p. nos.5 and 6 without cost. O.p. nos.1 to 4 are jointly and/or severally directed to execute and register the deed of conveyance in favour of the complainant and are further directed to pay to the complainant compensation of Rs.50,000/- (Rupees fifty thousand) only for delayed delivery of possession of the flat in question, Rs.50,000/- (Rupees fifty thousand) for short fall of measurement of the flat in question and Rs.1,00,000/- (Rupees one lakh) only for harassment and mental agony suffered by complainant and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
