For the Appellant (s)      :    Mr. Alok Mukhopadhyay, Advocate    

For the Respondent(s)    :    Mr. Rishad A. Chowdhury, Advocate for R-1

                                       R-2 already deleted

                                       R-3 to 7 already ex parte vide order

                                       dt.24.01.2019 and 27.12.2022                                               

ORDER

PER SUBHASH CHANDRA

1.      This First Appeal under Section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is in challenge to the order dated 01.02.2018 of the  State Consumer Disputes Redressal Commission, West Bengal, Kolkata (in short, the ‘State Commission’) in Complaint Case No. 382 of 2014 dismissing the complaint.

2.      Briefly put, the relevant facts of the case are that the Appellants had entered into an agreement with the Respondents on 17.07.2011 to purchase a flat admeasuring 1410 sq.ft. super built up area in a ground plus four storied building to be constructed at 25, Hem Chandra Naskar Road, Beliaghata, Kolkata 700010, for a sale consideration of ₹41,28,000/- at ₹4255 per sq. ft.  The Appellants paid the entire consideration of ₹60,00,000/- by way of cheque and also paid ₹4,00,000/- in cash as full and final consideration towards the purchase of the flat and car parking space.  According to the Appellant, Respondent No.1 was also paid ₹2,00,000/- for completion of extra work in the said flat against a money receipt.  Appellant contends that despite the receipt of the entire consideration, the Respondents failed to execute the Agreement for Sale in respect of the car parking space.  A complaint was filed before the State Commission praying for direction to register the Deed of Conveyance in respect of the property and to direct the Respondents to allot and deliver possession of the car parking space along with compensation of ₹5,00,000/- for harassment and mental agony with litigation costs.  Vide its order dated 01.02.2018, the State Commission, on contest, partly allowed the complaint and ordered as under:

“Consequently, complaint is allowed on contest. The OP are jointly and severely directed to execute and register the sale deed in respect of the property as mentioned in Schedule B for agreement for sale dated 17.07.2011 in favour of complainant within 30 days from date otherwise the complainant shall have liberty to get the deed executed through the machinery of the Commission. The OP no. 1 is also directed to pay compensation of ₹1,00,000/- and litigation cost of ₹10,000/- aggregating ₹1,10,000/- within 30 days from date otherwise the amount shall carry interest at 9% p.a. from date till its realization.”

This order is impugned before us.

3.      We have heard the Learned Counsel for the parties and carefully considered the material the material on record.

4.      Learned Counsel for the Appellant argued that he was not pressing that the Engineer Commissioner’s report had concluded that the actual area was 10 sq.ft. less than the area claimed to have been constructed by the respondent.  It was submitted that the State Commission failed to consider his amendment application and erred in holding that ₹6 Lakhs was paid over and above the sale consideration included the consideration for the car parking space.  The contention of the Appellant is essentially that the State Commission failed to appreciate that ₹66 Lakhs comprising ₹60 Lakhs for the flat and ₹6 lakhs for the parking space stood paid although the agreement in respect of the car parking space was oral.  It was also contended that despite observing that payment of ₹66 Lakhs had been made, the State Commission erred in not directing refund of               ₹6 Lakhs and hence the impugned order warranted modification.  It was further argued that although the State Commission appreciated the Respondents’ contention that ₹6 Lakhs had been paid by the appellant towards additional 70 sq.ft. space and for extra work in the flat, the additional work done had not been proved by respondents to have been at the behest of the Appellant.  It was contended that the Respondents failed to deliver possession within the stipulated period for which it was liable to compensate the appellant @ ₹2/- per sq.ft. per month whereas the development agreement lays down the penalty @ ₹15/- per sq ft.  The prayer of the Appellant is, therefore, to modify the impugned order and to direct the Respondents to convey the car parking space or, in the alternative, to refund ₹6 Lakhs with interest with ₹33,700/- for the delay in delivery of possession beyond 24 months as per Clause 6 of the Agreement for Sale.

5.      Per contra, the contention of the Respondents is that the order of the State Commission is reasoned and correct and does not warrant interference.  It is submitted that the Appellant has sought to set up a new case for the car parking space in this appeal whereas before the State Commission the case agitated was with regard to additional works. It was contended that there was no evidence brought on record before the State Commission relating to any agreement for such parking or the payment of any consideration for the same.  It was argued that the Appellant was attempting to fundamentally enlarge at the appellate stage the relief sought by him before the State Commission which was not permissible.   The prayer in the amended complaint before the State Commission had prayed that the Opposite Parties be directed “to allot and deliver possession of car park as per sanctioned plan 2010030025 dated 07.06.2010 or alternatively, to refund ₹4,00,000/- paid by the complainant to the developer opposite party no. 1 on account of car parking space out of three car parking spaces as shown in the sanctioned building plan with interest at the prevailing rate of bank interest from the date of payment till the date of actual refund.”  The appellant also did not seek in the original complaint, or amended complaint, refund of any amount allegedly paid on account of extra work.  It was argued that the State Commission had rightly held that the prayer of the Complainant did not seek refund of the extra amount of ₹2,97,850/- plus ₹3,02,500/- on the ground of extra work or enhanced saleable area.  According to the Respondent, it had been rightly held that since there was no prayer for refund of the amount in the petition, no such relief could be granted. Reliance was placed on the judgement of the Hon’ble Supreme Court in Food Corporation of India Vs. Vikas Majdoor Kamdar Sehkari Mandali Ltd., (2000) 13 SCC 544 which had held that:

If a party to a contract has done additional construction for another not intending to do it gratuitously, and such other has obtained benefit, the former is entitled to compensation for the additional work not covered by the contract. If an oral agreement is pleaded, which is not proved, he will be entitled to compensation under Section 70. Payment under this section can also be claimed for work done beyond terms of the contract when the benefit of the work has been availed of by the defendant.

It was, therefore, contended that there was nothing inequitable or unjust about the additional amounts willingly paid for additional work beyond that was originally contemplated in the written contract by the Appellant.

6.      From the foregoing, it is evident that the impugned order has considered the prayer of the Appellant as per the amended complaint. The impugned order of the State Commission has clearly held that

However, the complainant is claiming car parking space and in this regard he has already paid ₹4,00,000/- by cash. However, the complainant have failed to show any money receipt or any document to that effect.

…….

On perusal of contents of Agreement for Sale, it would be quite apparent that the preliminary intention of the parties (was) to enter into a binding contract for sale of immovable property and terms and conditions on which such sale would be entered into, would make it evident that the same was executed for the purpose of sale of the flat only.

It is true that the OP/Developer had no reason to receive an amount of ₹3,02,500/- for the interior decoration done in the flat in view of Clause 7 of the agreement which provides

7. The purchaser shall pay to the developer extra charges to be determined by them (developer) for extra works and decoration in inside area of the flat beyond the specification described in the third Schedule below, provided the purchaser will give return permission for specific extra work to the developer.

The fact remains that there is no document whatsoever that the complainant has ever authorised the developer to do any extra work. Annexure ‘A’ to the written version (extra work bill amounting to ₹2,97,850/-) does not contain the signature of the complainant nor it does not show that complainant has ever requested the OP no. 1 to do any extra work.

Similarly, with regard to collection of additional cost of ₹3,02,500/- the OP no. 1 should not have collected any extra amount. In this regard an Engineer Commissioner was appointed to assess the area of the flat and after inspection the Ld Engineer Commissioner has submitted his report that the super built up area of the flat was more or less 1410 sq ft i.e. the size agreed in the agreement for sale.

Surprisingly enough, in the prayer clause of the petition of complaint the complainant did not make any prayer for refund of those extra amounts of ₹2,97,850/- + ₹3,02,500/- on the plea of extra work or enhanced saleable area. However, as there is no prayer for refund of the amount in the petition of complaint no such relief could be granted.  

[Emphasis added]

7.      In view of the discussion above, it is apparent that the agreement between the parties did not include the conveyance of any area earmarked for a car parking space.  There was also no subsequent arrangement to this effect which is evidenced by the fact that                          no documentary evidence has been brought on record by the Appellant. In view of there being no evidence requiring the Respondent to make available and hand over a car parking space, there is no basis for the appellant to claim that the same be handed over or that an amount of               ₹6 Lakh with interest be paid to him in the alternative.  As regards the issue of additional work claimed by the Appellant, it is clear that Clause 7 of the agreement provides for the same, subject to there being a written consent by the Appellant which has not been brought on the record. Therefore, as argued by the Respondent on the basis of Majdoor Kamdar Sehkari Mandli Ltd (supra), this claim of the Appellant also does not sustain.  Admittedly in view of the report of the Engineer Commissioner appointed by the State Commission the Appellant has chosen not to press any claim regarding any additional area constructed.

8.      In light of the discussion above, it is apparent that there was delay in the handing over of possession of the flat beyond the stipulated                    24 months for the construction of the flat.  The State Commission in its order has directed payment of compensation of ₹1 Lakh towards this deficiency in service.  We find no reason to interfere with the same.  We also find no reason to interfere with the litigation cost of ₹10,000 awarded by the State Commission.  The Respondents are directed to pay the amount of ₹1,00,000/- within 30 days of this order failing which the amount shall carry an interest of 6% per annum till realisation.  The amount of ₹10,000/- awarded as litigation costs shall also be paid along with the compensation awarded.  The Appeal is disposed of with these directions.

9.      Pending IAs, if any, stand disposed of with this order.