1. The present consumer complaint has been filed by the complainant no. 1 and 2 at Barasat Commission vide case no. CC/528/2017 u/S (12) and (13) of the Consumer Protection Act, 1986 on 12.10.2017 against the developers as OP 1 and 2.  The gist of the complaint as averred by the complainants is that they executed an agreement on 08.05.2010 to purchase a garage space no 2, together with water connection and common toilet on the ground floor admeasuring more or less 100 Sq.ft. super built up area situate at the multi storied building namely Sri Krishna Apartment at Mouza – Arjunpur, J.L. No. 7, Touzi No. 181 in R.S. Khatian No. 60, C.S. Dag No. 168, R.S. Dag No. 181, P.S. – Baguiati, Kolkata – 700059 and paid Rs. 1,00,000/- on 08.05.2008 by demand draft as part payment and taken possession of the said garage : space no 2 on 18/12/2016 against a total agreement value of Rs. 1,30,000/-.  Complainants requested OPs several times to arrange water connection to the said garage space and to arrange registration of the same after collecting balance outstanding amount. In this respect the complainants claimed having sent notices to the OPs on 16.06.2010 and 15.02.2017 to which the OPs did not respond. As such the complainants have filed a complaint at Baguiati P.S. vide General Diary Entry No. 2230 dated 26.04.2017. The complainants also filed this case before the Ld. Commission, Barasat against the OPs for wilful negligence in extending service and unfair trade practices along with a prayer for directing the OPs to arrange the water connection and toilet and registration of the said garage space no 2 against balance amount payment for Rs. 30,000/-.
2. The complainants have exhibited the following documents along with their evidence adduced before this Commission :-
3. Photocopy of Agreement for Sale dated 08.05.2008, executed between the Complainants and OPs.
4. Photocopy of demand draft no. 737073 issued by Indian Overseas Bank.
5. Photocopy of Bank Statement showing the debit of an amount of Rs. 1,00,000/- in respect of demand draft no. 737073.
6. Photocopy of Legal Notice dated 15.02.2017 sent by Ld. Advocate Mr. Jahar Datta on behalf of the Complainants to the OPs.
7. Photocopy of GDE vide being no. 2230 dated 26.04.2017 at Baguiati P.S.
8.     Money receipt no 03 dated 08.05.2008 from OPs in favour of complainants for Rs. 1,00,000/- as booking money for ‘one space on ground floor at space no 2, north East of the building’
3. This case has come on transfer from Barasat Commission to Rajarhat Commission at the stage when S/R of OP 1 to be completed and the case running ex-parte against OP 2 as the track reports were insufficient to show completion of service on OP 1 and OP 2. The complainants took steps to complete the service of notice through alternative method by the way of paper publication which was allowed and notified on 28.02.2021 for appearance of the OPs on 13.05.2021. However, there was no response from either of the OPs and no W/V was filed. Hence the case is running ex-parte against both the OPs. Evidence was adduced by the complainants through affidavits and BNA was filed. The arguments were heard in full.
4. As the case is running ex-parte so the disputes were examined on merit, read with the evidences on records and available documents and exhibits. Upon perusal it appears that the complainants have entered into an agreement for sale with the OPs on 08.05.2008 for purchase of a garage space no 2 and paid Rs. 1,00,000/- (Rs. One Lac only) on 08.05.2008 to the OPs in the form of demand draft as an advance money out of the total consideration money of  Rs. 1,30,000/- (Rs. One Lac Thirty Thousand only). The complainants have adduced evidence on affidavit stating that they have received possession of the said garage space. In this respect, the Ld. Advocate of the complainants in his BNA has cited a judgement by Hon’ble NCDRC in the matter of M. Akuja Project (India) Pvt. Ltd. vs. Lokeswari Nagpure (NCDRC) in the matter of 2017(2) CPR 475; 2017(3) CPJ 296 where it has been decided inter-alia that CP Act, 1976 sec 17, 19 and 21 Consumer Complaint – booking of house – defects in constructed – deficiency in service alleged complaint filed before the State Commission allowed – hence present appeal – OP builders have been directed to hand over possession of constructed property to complainants after removing defects – order passed by State Commission held proper – not to be interfered with – appeal dismissed. However, decision of the referred judgement in the case cited by the Ld. Advocate of the complainant cannot be applied in the case in hand in a straight jacket manner, as the possession of the suit premises is already taken by the complainants in this case.
5. There are some more observations on perusal of the documents :-
6. In the agreement of sale dated 08.05.2008, the relevant portion about suit property is quoted as (page no. 5, para 1) : ‘And whereas the developer declared to sell the developer’s allocated portion and the purchaser herein approached to the developer to purchase a space no. 2 at the ground floor of the said building measuring an area of 100 Sq.ft. SBU area be the same a little more or less together with proportionate impartible share of land and common parts and common amenities of the said multi storied building at/or consideration of sum of Rs. 1,30,000/- free from encumbrances, charges, liabilities’. This specifies that the suit property is a space numbered as 2 at the ground floor and not really a garage or property with sanctioned plan.
2. In the agreement of sale dated 08.05.2008, the relevant portion about suit property is quoted (page no. 6 - 1) as : ‘the developer inter-alia agreed to the purchaser for entering into an agreement for sale of an undivided proportionate share of the land and/or interest of the said building and the space being no. Space No. 2 at the ground floor measuring an area at 100 Sq.ft. super built up area’. Here, the term is crossed by stroke of pen and corrected with hand written manuscript note as ‘garage’, without any endorsement of such manual correction through signature of either side at or beside such corrections.
3. In the agreement of sale dated 08.05.2008, the relevant portion about suit property is quoted as (page no. 6 – 3 - c) : ‘and the purchaser agrees to further pay in the following manners. But those serial no. 3(a) and 3(b) are left blank and jumping the sequence in the serial no. 3(c), it is mentioned in printed form – ‘and the purchaser agrees to further pay in the following manners - at the time of possession Rs. 30,000/-(Thirty thousand)’. Thereafter, the followings hand written manuscript note of various fonts have been inserted as below :-

“with copy of building completion certificate at the cost of developer or providing water, electricity etc. which are required for the said space”.

Observed that no signature of the developer or the complainants is endorsed at or beside such corrections / insertions. Therefore there are lot of discrepancies to give cognizance to such manuscript notes in the said document not duly endorsed.

4. The complainants claimed having sent notices to the OPs on 16.06.2010 but no such document was exhibited in support of such claim.
6. The space underneath the building/ apartment is a part of the society’s common area, which is undivided and having proportionate share of all the owners. According to various apartment and urban area acts and court judgements, builders cannot sell common areas and facilities separately and hence can’t be sold, unless specifically shown in the sanctioned plan, which is considered as common area. In the case in hand, there is no cogent evidence in the form of sanctioned or approved plan or any other equivalent document filed by the Complainant to prove the bonafide in support of the said ‘space no. 2 at ground floor’ having municipal or local town planning authority’s sanction. Even if an agreement for sale is executed between the purchaser and the builder for a property or a space to which the builder is not entitled for conveyancing being a common undivided proportionate share, the purchaser may be entitled for damages, but not for any kind of regularisation for conveyancing of such property through court order.

Thus is the keeping in view of the foregoing and the prayer portion of the complaint petition, it is the considered opinion of this Ld. Commission that the Complainants have not acted with reasonable diligence in prosecution of the case and lacks bonafide that are imputable to the Complainants.

The case be and the same is therefore dismissed and the Complainants are not entitled for any reliefs as prayed herein.

There shall be no order as to cost.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and Corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER