West Bengal

South 24 Parganas

CC/413/2014

SUDHAKAR DAS ,S/O. Late Jiban Krishna Das. - Complainant(s)

Versus

M/S. SWASTIK ASSOCIATES - Opp.Party(s)

19 Aug 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _413_ OF ___2014___

 

DATE OF FILING : 8.9.2014     DATE OF PASSING JUDGEMENT:  19.8.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :         1. Sudhakar Das

2. Sarbananda Das, both sons of late Jiban Krishna Das of 63/9/1C, P.G .H.S Road, P.S Jadavpur, Kol- 32.

 

-VERSUS  -

 

O.P/O.Ps                            : 1.  M/s Swastik Associates of 61/2, Prince Golam Hossain Shah Road, P.S Jadavpur, Kol-32.

                                            2a.   Smt. Ananya Raha, w/o Sri Siddhartha Raha

                                           2b. Smt. Sripurna Banerjee,w/o Sri Debasish Banerjee

                                        All of 61/2, Prince Golam ?Hossain Shah Road, P.S Jadavpur, Kol-32.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            The short case of the complainant is that O.P-2 being a land owner and O.P-1 being a developer entered into a development agreement on 30.12.2007 for development and construction of a new building in a plot of land in respect of that piece and parcel of homestead land measuring 3 cottahs 12 chittaks 16 sq.ft at premises no.61/2, Prince Golam Shah Road, Kolkata-32, P.S. Jadavpur. It has further stated that the complainant was originally and monthly tenant in respect of the said premises and all the parties were agreed that after completion of the proposed building the party of the second part shall provide with one residential flat on the southern side of the second floor measuring a super built up area of 90 sq.ft along with a car parking space on the ground floor measuring 134.55 sq.ft which has been mentioned in the B schedule of the agreement. The complainant further states that all the parties entered into an agreement for sale on 10.5.2006 which was duly registered in the ADSR , Alipore, South 24-Pargans regarding transfer of 900 sq.ft super built up area with car parking space in the ground floor of the said premises. It has further stated that developers were failed and neglected to hand over the possession of the second schedule flat in favour of the present complainant within time in terms of the registered sale agreement dated 10.5.2006 . Accordingly, complainant filed one application under section 12 of the C.P Act for registration of the sale deed in favour of the present complainant in respect of the flat and after hearing this Court was pleased to pass order on 27.10.2011 in complaint case being C.C.no. 131 of 2010 and O.P nos. 1 to 4 were directed to execute and register the deed of conveyance in favour of the complainant in respect of the subject flat and car parking space in terms of the agreement for sale dated 10.5.2006 but developers deliberately and intentionally failed and neglected to hand over possession of the said flat. Thereafter, complainant filed execution case under section 27 of the C.P Act praying for implementation of the judgement dated 27.10.2011 which was registered as E.A. 32 of 2014. The complainant has stated that developer has handed over possession of the flat and car parking space . It has further stated that in that execution case this consumer court also appointed pleader commissioner to execute and register the deed of conveyance vide its order no.6 dated 2.7.2014 and no.7 dated 8.1.2014.

            It has further stated that after construction the building it was found that the flat of the complainant is measuring 1061 sq.ft instead of 900 sq.ft and in the original agreement dated 10.5.2006 it has been mentioned  as 900 sq.ft instead of 1061 sq.ft and as per sanctioned building plan the schedule flat is 1061 sq.ft . Thereafter complainant requested the developer to sell and transfer the said portion of the flat of 161 sq.ft at a total consideration price of 1,00,000/- and developer agreed with the proposal of the complainant have agreed to transfer the said 161 sq.ft in favour of the complainant and accordingly the parties entered into a sale agreement dated 1.3.2012 in respect of all that piece and parcel of the self contained flat area on the southern side of the second floor super built up area measuring 161 sq.ft. It has claimed that the developer is claiming Rs.3 lacs from the complainant illegally and wrongfully. So, in terms of the agreement dated 1.3.2012 the complainant is required to be paid only Rs. 1 lac but inspite of requests the developer is not ready and willing to execute and register the sale deed in favour of the complainant, for which this application is filed before this Forum with a prayer for execution and registration of the deed of conveyance in favour of the complainant in respect of 3^rd schedule flat area i.e. 161 sq.ft and compensation to the tune of Rs.70,000/- and also Rs.20,000/- for increasing stamp duty of the Government and cost of proceedings Rs.20,000/- along with interest.

            The O.P nos.2a and 2b , land owners, are not contesting the case and the case is running against them exparte but O.P-1 developer filed written version and has claimed that complainant  is in wrongful possession of that 161 sq.ft in the said agreement and has claimed Rs.9,66,0 00/- treating Rs.6000/- per sq.ft of that 161 sa.ft and also stated that he is ready and willing to execute and register the deed of conveyance in favour of the complainant on receiving the said consideration amount of Rs.9,66,000/- .

            Points for consideration in this case is whether there is really any deficiency in service or unfair trade practice on the part of the O.Ps or not.

                                                            Decision with reasons

            The dispute between the parties relates to 161 sq.ft. since the flat in dispute is measuring 161 sq.ft instead of 900 sa.ft in terms of the sanctioned plan of KMC.

            It may be mentioned here that it was the duty of the developer to approach before the KMC on behalf of the land owners for getting sanctioned plan but when developer has proposed 1061 sq.ft in the second floor southern side flat of the said building, the agreement which was made between the complainant and the developer and the land owner ought to have mentioned that 1061 sq.ft. But it has come to our knowledge at the time of argument that the agreement was made earlier and thereafter sanctioned plan was sanctioned by the KMC. If that be the position, then the developer and land owners ought to have made supplementary agreement of hat 161 sq.ft with the complainant. But inevitable did not happen. It is crystal clear that inspite of knowing fully well regarding the excess measurement of  161 sq.ft , the developer and land owners  did not disclose the same to the complainant but when the complainant got possession of the flat the “Cat has come out of the Bag”. So, it is the  unfair trade practice and deficiency in service by the developer as well as the land owner for suppression of material facts at the time of obtaining the sanctioned plan and it is not possible for the complainant to know all these things being a common people and definitely he has no access over the matter of sanctioned plan, being a old tenant of the said premises.

            Be that as it may, complainant wanted to establish that developers have agreed with the proposal of the complainant to transfer the said 161 sq.ft on account of Rs.1,00,000/- but in the written version of the developer which has been taken as his evidence clearly suggest that the said facts have no legal foundation, particularly when  the developer has claimed Rs.9,66,000/- treating the said 161 sq,ft as a present market price of Rs.6000/- per sq.ft.

            Now question is what would be the amount per sq.ft. One Agreement for sale dated 8.12.2008 has been filed, wherefrom we find that per sq.ft rate was prevailing at the relevant point of time 1675/- per sq.ft in that premises. Taking into consideration complainant has to pay excess Rs.2,69,675/- for excess  161 sq.ft  ( 1675/-   x   161 ) and thereafter the O.Ps will execute and register the deed of conveyance . We are not in agreement with the claim as disclosed in the written version by the O.P-1 regarding the price of the said 161 sa.ft which is more more excess, no foundation at all since due to his negligence , lapse, deficiency  it was not ventilated at that point of time to the complainant. So, in no stretch of imagination developer can claim the said excessive amount. If it was disclosed after obtaining the sanctioned plan to the complainant and if complainant was negligent to accept the same on a plea that agreement already made for 900 sq.ft ,then and then developer can claim the said amount as claimed in his written version but nor right now, because  it was the developer’s mandatory duty to ventilate the same to the innocent complainant at the relevant point of time.

            With that observation, it is

                                                                                    Ordered

That the application filed under section 12 of the C.P Act is allowed on contest against O.P-1 and exparte against the rest .

Complainant is directed to deposit Rs.2,67,675/- to the office of this Forum through A/C Payee Bank Draft in the name of the developer O.P-1 within 60 days from the date of this order and , if the complainants are able to deposit the aforesaid sum within the stipulated period, then developer and the land owners are directed to execute and register the deed of conveyance in respect of that 161 sq.ft super built up area of the said flat in favour of the complainant within 15 days from the date of receipt of the draft. If after receipt of the Bank Draft O.Ps are reluctant to execute and register the deed of conveyance in respect of the said excess area of 161 sq.ft , in that event our machinery of the Forum will execute and register the deed of conveyance in favour of the complainant in respect of the said excess area of 161 sq.ft

It may be mentioned here that  after depositing the Bank Draft by the complainant and after receipt of the same by the O.Ps , if the O.Ps failed and neglected to execute and register the deed of conveyance in respect of 161 sq.ft area of the flat, then compensation to the tune of Rs.50,000/- will be imposed upon the developer , O.P-1, as well as further compensation of Rs.20,000/- for increasing stamp duty of the Government due to laches of the developer for non-disclosing the actual area of the flat in dispute after getting the sanctioned plan to the complainant and cost of Rs. 10,000/- will  be paid by the O.P-1 and that amount will have to be paid within 30 days from this date, failing which, interest will carry @9% p.a on the awarded amount from the date of failure of registration till its realization.

Let a plain copy of this order be served upon the parties free of cost.

 

 

 

Member                                               Member                                               President

 

 

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

Ordered

That the application filed under section 12 of the C.P Act is allowed on contest against O.P-1 and exparte against the rest .

Complainant is directed to deposit Rs.2,67,675/- to the office of this Forum through A/C Payee Bank Draft in the name of the developer O.P-1 within 60 days from the date of this order and , if the complainants are able to deposit the aforesaid sum within the stipulated period, then developer and the land owners are directed to execute and register the deed of conveyance in respect of that 161 sq.ft super built up area of the said flat in favour of the complainant within 15 days from the date of receipt of the draft. If after receipt of the Bank Draft O.Ps are reluctant to execute and register the deed of conveyance in respect of the said excess area of 161 sq.ft , in that event our machinery of the Forum will execute and register the deed of conveyance in favour of the complainant in respect of the said excess area of 161 sq.ft

It may be mentioned here that  after depositing the Bank Draft by the complainant and after receipt of the same by the O.Ps , if the O.Ps failed and neglected to execute and register the deed of conveyance in respect of 161 sq.ft area of the flat, then compensation to the tune of Rs.50,000/- will be imposed upon the developer , O.P-1, as well as further compensation of Rs.20,000/- for increasing stamp duty of the Government due to laches of the developer for non-disclosing the actual area of the flat in dispute after getting the sanctioned plan to the complainant and cost of Rs. 10,000/- will  be paid by the O.P-1 and that amount will have to be paid within 30 days from this date, failing which, interest will carry @9% p.a on the awarded amount from the date of failure of registration till its realization.

Let a plain copy of this order be served upon the parties free of cost.

 

 

 

Member                                               Member                                               President