SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal has been filed by the appellant under Section 41 of CP Act, 2019 challenging the order dated 12.08.2022 passed by Ld. Additional District Consumer Disputes Redressal Commission, Rajarhat (New Town) (District Commission) in complaint Case No. RBT/CC/78/2020.
The facts of the case, in brief, are that the appellant/complainant (hereinafterreferred to as ‘complainant’) being an intending purchaser approached the Respondents No. 1, 2, 3 and 4 / OPs No. 1, 1(a), 1(b), 1(c) (hereinafter referred to as ‘developers’) on 15.12.2013 to purchase a flat. Accordingly, a registered agreement for sale dated 06.02.2014 was executed by and between the parties whereby the complainant agreed to purchase a flat measuring more or less super built up area of 512 sq. ft. situated at Mouza – Krishnapur, J.L. No. – 17, Touzi No. 228/229, comprising and contained in Dag No. 5021 (C.S.), 3023 (R.S.), Khatian No. 572, PS – Baguiati, Holding No. RGM 94/1584, Block – G in Ward No. 32 under Rajarhat-Gopalpur Municipality in the District of 24 Parganas (North) on the back portion of the ground floor being No. GA for a total consideration of Rs.6,00,000/-. The complainant paid an advance amount of Rs.1,00,000/-. Developers were agreed to provide the shifting charge of Rs.21,000/- per month to the complainant till the delivery of possession of the scheduled flat. The developers acted on behalf of the land owner/Respondent No. 5/OP No. 2 of the original complaint vide a registered power of attorney . The Developers entered into the agreement for sale with the intending purchasers and accepted the earnest money on behalf of land owner. The complainant has already paid total consideration amount of Rs.6,00,000/- in cash by six instalments. For a long period, the developers had stopped the construction activity. The complainant approached the developers about position of the flat but he found that not even 30% of the construction work of the flat was completed and when the complainant enquired about the same the developers said that there are some complexities in the Municipality and for that reason further time would be required to complete the structure. During the construction work the complainant observed that the septic tank was built in the southern side under the bedroom of the flat of the complainant and therefore the complainant requested the developers not to do the same and the developers said that it was the mistake of the workers and the said septic tank would be removed as early as possible. After about two years when the complainant observed that the flat was not ready to deliver he served a notice dated 07.01.2017 to the developers and the landowner to complete the flat. Upon receipt of such notice, the developers replied vide their letter dated 22.02.2017 denying the content of the notice and informed that the flat is absolutely ready to deliver and refused to provide further shifting charges. The developers had not paid the alternative accommodation charges from the month of April,2017. Then the complainant asked for completion certificate. In the meantime, on 12.03.2017 the complainant visited the flat in question and he observed that neither the septic tank was removed nor the flat was completed. The complainant approached the civil engineer for measurement of the flat and the civil engineer, Mr. Bidyut Sarkar opined that said site plan is differing form the sanctioned plan and the super built up area has been reduced from 512 sq. ft. to 475 sq. ft. Then the complainant informed the developers about the engineer’s report but the developers did not pay any heed. Hence the complainant filed the consumer complaint before the Ld. District Commission with the following prayer:
- “A direction upon the OP No. 1 to complete the erection of the schedule flat within three months and deliver the complete constructed flat in habitable and hygienic condition and thereafter to provide the completion certificate as issued from the concerned Municipality.
- A direction upon the OP No. 1 to pay a sum of Rs.63,000/- in favour of the complainant as shifting charge from April, 2017 to June, 2017 and to continue paying thereafter till the delivery of possession of the scheduled flat;
- Award a sum of Rs.1,00,000/- for mental agony and harassment to the petitioner for the irreparable loss/injury suffered by him due to the negligence of the opposite parties;
- A direction upon the OP No. 1 to execute the Deed of Sale in respect of the scheduled flat in favour of the complainant;
- Cost of the proceedings;
- Other appropriate reliefs /compensation/awards as Your Lordship may deem fit and proper.”
The said case was allowed on contest which is reproduced as under:
a. The developers would finish the untouched work to render the ground floor admeasuring 512 sq. ft. fully habitable by 30.08.2022 at their own cost.
b. The OPs would cause delivery of possession coupled with execution and registration of sale deed for the flat in question in between 01.09.2022 and 01.10.2022.
c. The developers will pay a sum of Rs.10,000/- as litigation cost to the complainant by 01.10.2022, failing which the amount will carry interest @10% p.a.
Though the complaint case was allowed on contest, being dissatisfied with the said order the complainant has filed the instant appeal on the ground that the complainant has observed that there was gross mistake in ordering portion since there is no direction upon the OPs to deliver the completion certificate to the complainant. Moreover, there is no direction upon the developers to pay the shifting charge at the rate of Rs.7,000/- per month as per Agreement for Sale dated 06.02.2014. Moreover, the Ld. DCDRC has overlooked the Engineer Commissioner’s report which stated that some portion of the subject flat has been constructed over the common passage. The Commissioner report has stated that the measurement of the flat is 467.63sq.ft.super built up area but the complainant has paid the amount for 512 sq. ft. super built up area. Therefore, the complainant has paid extra amount for 44.37 sq. ft. and accordingly, complainant is entitled to get refund for the same. The Ld. DCDRC has not passed any amount towards compensation. Hence the appeal.
The Ld. Counsel for the respondents has stated that the calculation of super built up area which means covered area and proportionate share of staircase, common area and utilities and also added 25% per cent on covered area including stair case. The respondents filed the written version before the Ld. DCDRC and denied the complainant’s case. The developers raised a five storied building on the strength of sanctioned building plan vide B.P.S.L. No. 1212/12-13 dated 04.06.2013 from Rajarhat-Gopalpur Municipality.
In their written version, respondents have stated that after development agreement the developers obtained a sanctioned building plan and after obtaining the sanctioned building plan the complainant was agreed to vacate his occupied room subject to repossession into the new building and on compassionate ground the developers were agreed to give repossession to the complainant after completion of the building and it was agreed by the developers that complainant shall be given one flat measuring 512 sq. ft. super built up area on the ground floor being No. G-A and the complainant shall have to pay Rs.6,00,000/- to the OPs and the cost of additional works. Accordingly, one agreement for sale was registered on 06.02.2014 without making payment of Rs.6,00,000/-. The OP obtained the completion certificate on 09.07.2014. In their written version, OPs have submitted that they are ready and willing to hand over the physical possession of the flat as per Agreement dated 06.02.2014. Since there is no deficiency in service the OPs prayed for dismissal of the case with cost.
We have gone through the final order of Ld. District Commission. The Ld. DCDRC has mentioned the Engineer Commissioner’s report and observed that the flat in question is having a super built up area of 512 sq. ft. Being dissatisfied with this observation, the complainant has filed this Appeal and Ld. Counsel for the complainant has drawn our attention by showing the Engineer Commissioner’s report where in point No. 12 it has been specifically mentioned that the covered area of the disputed flat is 374.10 sq. ft. and 1/3rd of stair case area is 48.52 sq. ft. and 1/3rd of lift area is 6.88 sq. ft. and service area of 55.4 sq. ft. So total super built up area is 467.63 sq. ft.
It appears to us that the SecondSchedule of the agreement for sale dated 06.02.2014 entered by and between the parties specifically mentions the following:
THE SECOND SCHEDULE ABOVE REFERRED TO
[SAID FLAT]
ALL THAT self contained and independent FLAT vide Flat No. GA on the Ground Floor, [back portion] measuring super built up area of 512 sq. ft. be the same a little more or less, lying and situate in the building known as “SANANDA APARTMENT” lying and situated on the land more fully mentioned in the First Schedule above appertaining to Mouza Krishnapur, Police Station – Baguihati (formerly Rajarhat) in the District of North 24 Parganas TOGETHER WITH proportionate undivided share of land mentioned in the First Schedule mentioned above and common facilities and amenities available in the building, free from all encumbrances. The said flat is butted and bounded as follows:
On the north: By 16’ Feet Wide Road;
On the South: By Garage;
On the East: By Another Building;
On the West: By 16’ Feet Wide Road.
The OPs have not challenged the Engineer Commissioner’s report which means the Engineer Commissioner’s report attains its finality. Therefore, it is crystal clear that there is shortfall area of 512sq. ft. - 467.63 sq. ft. = 44.37 sq. ft. in the super built up area. In internal page no. 21 of the Agreement for Sale, the receipt of Rs.6,00,000/- has been acknowledged by the developers. It is mentioned under the heading ‘money receipt’ that OPs have received Rs.6,00,000/- from the purchaser in the following manner:
MONEY RECEIPT
RECEIVED Rs.6,00,000/- (Rupees six lakh) only from the Purchaser in the following manner
- By cash vide money receipt dated 15.12.2013 Rs.1,00,000/-
- By cash vide money receipt dated 25.12.2013 Rs.1,00,000/-
- By cash vide money receipt dated 31.12.2013 Rs.1,00,000/-
- By cash vide money receipt dated 07.01.2014 Rs.2,00,000/-
- By cash vide money receipt dated 22.01.2014 Rs.1,00,000/-
Therefore, the developers cannot claim that the complainant has not paid the consideration amount. All the money receipts were issued from the period 15.12.2013 to 22.01.2014 i.e., before the date of entering into the agreement for sale dated, 06.02.2014 by and between the parties.
Upon perusal of the record, we find one Agreement For Leave and Licence wherefrom it appears that one of the developers, namely, Sudip Pal/Respondent No.3 of the instant appeal was the licensee and one Sangita Das was licensor and complainant is the possession holder. In that Agreement, it was specifically mentioned that the said licence commences with effect from 1st day of March, 2015 and valid for the period for 11 months only i.e., up to 31st January, 2015 for a licence fee of Rs.7,000/-. The Ld. Counsel for the complainant has stated that the OPs have not provided any charges as per Agreement after 2017. Claim of the OPs is that possession letter was issued on 22.02.2017, therefore, they have not paid any charges to the complainant for alternative accommodation thereafter. But it is the fact that till date the respondents have not provided the actual physical possession of the flat to the complainant. As per Clause No. 14 of the Agreement for Sale dated 06.02.2014, the date of delivery would be within six months from the date of agreement (internal Page No. 10 of the Agreement for Sale). In the internal Page No. 8 of the Agreement for Sale it has been specifically mentioned that the Developer hereby agreed to arrange alternative accommodation for the Tenant and pay the cost each month positively till the date of possession of the said Tenant/Purchaser from Developer’s Allocation is handed over to the Tenant/Purchaser.
The Ld. Counsel for the complainant drew our attention by showing internal Page No. 6 of the Agreement for Sale where in Clause No. 7 the calculation of super built up area has been mentioned. We have observed that Engineer Commissioner’s report has been submitted considering this Clause. Moreover, the Engineer Commissioner’s Report has not been challenged by either of the parties. Therefore, it may be safely concluded that there is shortfall area of 44.37 sq.ft.in the in the flat in question.
Another allegation of the complainant is that the balcony of the flat is on the common passage. It is also mentioned in the Paragraphs9 and 10 of the Engineer Commissioner’s Report. The Engineer Commissioner’s report was prepared on 13.05.2022 and in the page No. 4 of the EngineerCommissioner’s report, the following observation has been noted :
“In the end it can be concluded the said flat is not completed in nature and it is not habitable condition until the other work will be done by OP.”
The Ld. Counsel for the respondents has submitted before this Commission that they have complied with the direction of the Ld. DCDRC and completed the flat within 30.08.2022 and accordingly, they requested the complainant to take the possession of the flat. Therefore, it is crystal clear that the flat was not completed till 30.08.2022. The complainant was dissatisfied with the final order of the Ld. DCDRC, the instant appeal has been filed by the complainant on 14.11.2022 and since the complainant has preferred the appeal, he did not take the possession of the flat. As per the Engineer Commissioner’s report which was submitted on 13.05.2022, it can safely be concluded that on 13.05.20222 also the flat in question was neither completed nor in habitable condition.
In view of above discussion, particularly considering the Engineer Commissioner’s report, it may be safely concluded that the flat in question was neither completed nor in habitable condition. The actual physical possession has not been delivered to the complainant and no alternative accommodation charge was given since April’2017. The complainant has failed to provide any receipt towards monthly charges of the alternative accommodation where the complainant is now residing. However, for the finality of litigation, we can safely hold that at least @ Rs.7,000/- per month (as per Agreement For Leave And License dated 01.03.2015)the complainant has been paying from April’2017 till date towards rent. Therefore, the developers are liable to pay alternative accommodation charge till the actual date of delivery of possession to the complainant.
Considering the Engineer Commissioner’s report, we are of considered view that the developers are also liable to pay the amount @ Rs.1172/- per sq. ft. for shortfall area of 44.37 sq. ft.
Ld. Counsel for the complainant has cited the judgment passed by Hon’ble National Commission in Chandra Kant Gandhi and anr. Versus Rohan Developers [2019 (2) CPR 54 NC], Moloy Kumar Dutta versus Jayanta Vaduri [2019 (2) CPR 105 NC], Ritu Hasija and anr. versus IREO Grace Realtech Pvt. Ltd. [2019 (2) CPR 250 NC]
The OPs neither denied the allegation of the complainant that some portion of the flat in question on the common passage of the building nor has challenged the Engineer Commissioner’s report which observes the same. Therefore, at this juncture, after waiting a long period in the hope of getting possession of the flat in question we cannot pass any order to give another flat to the complainant by the Developers with same specification and in the same area. Since, some portion of the flat remains on the common passage of the property, the Developers are liable to give compensation for causing mental agony and harassment due to their negligent act and deficiency in service.
Based upon the above observation we think that in the case in hand, the construction was not completed and since the possession was not offered after accepting full consideration, the act of the Developers can be termed as ‘deficiency in service’ and the complainant is entitled to get further relief as mentioned in the petition of complaint as well as the memo of appeal filed by the complainant. Therefore, the District Commission has committed error by not observing the other grievance of the complainant. Moreover, the Ld. DCDRC has failed to consider the Engineer Commissioner’s Report. It is pertinent to mention that the Engineer Commissioner was appointed as per order of Ld. DCDRC.
In view of above discussion, the appeal is allowed on contest against Respondents No. 1 to 4.
The Order of the Ld. District Commission be modified to the following extent:
The Respondents No. 1 to 4/Developers are directed to deliver the complete flat in all respect and in habitable condition and to execute and register the sale deed of the flat in question in favour of the complainant within 45 (forty-five) days from the date of passing of this order.
The cost of registration shall be borne by the complainant.
The Respondents No. 1 to 4/Developers also directed to supply the copy of Completion Certificate to the Complainant within aforementioned stipulated period.
The Respondents No. 1 to 4/Developers are also directed to refund Rs. 52,000/- (Rupees fifty-two thousand) only for shortfall area of 44.37 sq. ft. of the flat in question @ Rs.1172 sq. ft.
The Respondents No. 1 to 4/Developers are also directed to pay @ Rs.7,000/- (Rupees seven thousand) only per month from April 2017 till the date of actual delivery of possession of the flat in question in habitable condition to the complainant.
The Respondents No. 1 to 4/Developers are also directed to pay Rs.1,00,000/- (Rupees One lakh) only for causing harassment and mental agony for delay in delivery of possession of the flat in question and also for construction of the flat not in proper manner and not as per Schedule.
The other portion of the order towards litigation cost remains unaltered.
The appeal is, thus, allowed on contest against Respondent No. 1 to 4 and dismissed against Respondent No. 5.
The Appeal is, thus, disposed of accordingly.
Let a copy of the order be sent to the Ld. Additional Consumer Disputes Redressal Commission, Rajarhat (New Town) at once.
