The case was filed under Section 35(1) of Consumer Protection Act, 2019 and admitted on 21.01.2021. S/R was completed through paper publication but without response and hence running ex-parte against OP 1 and OP 2 vide order dated 07.09.2021 who are the Builder and landowner respectively.
The case of the complaint Ms. Suparna Mondal Adhikary as averred is that she filed consumer case on 07.01.2021 against Mr. Sanjit Biswas, Developer and proprietor of Malati Construction and Mr. Nepal Chandra Mondal, the landowner for a value of complaint of Rs. 33,53,600/-. The case of the complainant is that a development agreement was executed on 26.04.2013 between OP2 landowner and the developer being OP1 for development of a G+B+4 storied building for both commercial and residential purposes which includes the suit property i.e. a 3 BHK flat of type D in the 3rd Floor in Block 1 and a car parking space in the basement at ‘Malati Apartment’ at Jatraganchi, P.S: New Town, North 24 Parganas. Simultaneously the OP 2 executed a Power of Attorney on 26.04.2013 in favour of the developer OP 1 for selling the developer’s allocation. The complainant executed sale agreement on 07.07.2016 with landowner and developer for purchase of afore described flat with one car parking space against a consideration money of Rs. 41,92,000/- ( Rs. 38,92,000/- for flat and Rs. 3,00,000/- for car parking space). As per Cl (4) of the complainant petition, she is entitled for a carpet area of 834 Sq.ft. i.e. a super built up / saleable area of 1112 Sq.ft. But the complainant found the actual carpet area as 750 Sq.ft. Again, the saleable area as per sanctioned plan is only 892 Sq.ft. (82.91 Sq. Mt.). The complainant claimed having paid Rs. 33, 53,600 /- on various dates to OP1 developer by taking loan from bank and paying through her bank account and filed bank statement in support. The complainant also alleged that the builder provided outer wall thickness as low as 170 mm against promised specification of 250 mm. The complainant also alleged that OP exceeded FAR in ground coverage to 2.7 against the allowable limit of 2.5 as per sanctioned plan.
Though complainant claimed having advanced Rs. 33,53,600 /- to the OP, but the OPs failed to deliver the flat and to get the same registered in favour of the complainant with a delay that took place beyond 30 months of Sale agreement dated 07.07.2016 i.e. 07.01.2019 or beyond 36 months i.e. 07.07.2019 when compensation is payable as per agreement. Moreover the quality of materials of the flat in question is of inferior quality for which the complainant sent legal notices on 29.09.2020 and 06.07.2020 to OPs which never responded to. The complainant had also to avail home loan from SBI and hence was forced to incur huge interest unnecessarily due to delayed hand over. Hence, the case. The complainant prays for refund of excess paid amount for short supply of lower carpet area, registration of the property, compensation for defects in materials, compensation for deviation from sanctioned plan, compensation of Rs. 15,00,000/- for mental pain and agony and litigation cost for the suit property as per schedule.
The complaint case is heard ex-parte. The case records were gone through including documents and exhibits. During arguments it became evident that without report of Engineer Commissioner the matter cannot be adjudicated appropriately. Accordingly Engineer Commissioner was appointed to examine on the alleged defects in the flat property. It was mentioned in report dated 24.03.2022 from Engineer Commissioner having served notice in advance to the parties for their presence during inspection and as per the said field report dated 24.03.2022, the complainant was present and the OPs were absent during visit of the Ld. Engineer Commissioner on 21.03.2022 for the suit property. The concerned flat was found under lock and key. Therefore, the expert opinion was obtained based on site visit by the expert excluding interiors of flat.
Following are the excerpts of the report of the Ld. Engineer Commissioner which are listed below :
- Sanctioned plan no 58/NZP dated 31.12.2015 was verified as per which the Saleable area of that D Type flat is 82.91 Sq.mt or 892 Sq.ft.
- There is no mention of either carpet area or SBU in the said D Type Flat.
- Permissible ground coverage is 660.09 Sq.ft. and FAR is 2.5 but the actual ground coverage was found to be 754.22 Sq.ft. and FAR was found as 2.7.
- The external wall thickness as per approved plan is 250 mm but actual thickness was found as 125 mm
- The building was not constructed complying with latest new Building Construction Rule 2014 in respect of maximum ground coverage, width of access road and external wall thickness.
- There is a commercial complex found in the ground floor.
- There is no mention of ‘carpet area’ and ‘super built up area’ in approved plan with respect to ‘D’ type flat as per agreement for the said flat.
- It is not complying with New Town Building Construction Rule 2009 and 2014 for maximum ground coverage, for measurement of accessibility and for external wall thickness.
- There is no area statement for the flat of D Type of New Town Building Construction Rule 2009 and 2014.
- It was opined by the Engineer Commissioner that the OP constructed the structure beyond the completion plan and beyond the ground coverage limit.
- The internal details was not available as flat was found under lock and key.
- The provision for weather effect, load bearing concept and vibration effect were found inadequate not complying with rules.
- There is no provision of proper ventilation and passing of light in the day time in common spaces.
As the OPs were absent during this ex-parte proceedings and also being absent on the date & time of inspection, hence the report was endorsed by the complainant only.
Now, regarding the anomalies, let the condition as per second para of page 5 of the Sales agreement dated 07.07.2016 be looked into, which is stated as below :
“AND WHEREAS the Purchaser herein has approached to the Developer to purchase a brick built one self contained residential 3BHK flat being Flat Type D admeasuring an area of 834 Sq.Ft Carpet Area, which comes to 1112 Sq.Ft Super built up / Saleable area (more or less) on the 3rd floor, in Block -1 and One Four wheeler parking space in basement upon the land described in the first schedule hereunder written from Developer’s allocation in the B+G+4 storied building namely “Malati Apartment’, inclusive of the apportioned area governed by the stair case, lobby etc. fully described in the Second schedule herein under writer (hereinafter referred to the SAID APARTMENT) of which the Developer have agreed to sell ……….………… for Rs 41,92,000/- only
“Although the Super built area is inclusive of the area explained in details as mentioned in the approved plan duly exhibited, it also includes the stair case, lobby etc. that are fully described in the Second schedule of the agreement alongwith undivided proportionate share of the land beneath and common areas. But the promised Super built up area/ Saleable area as per Sale agreement is 1112 Sq.Ft. (equivalent carpet area of 834 Sq.Ft) which works out to 33.3% weightage factor to convert carpet area to SBU. As per this commission appointed Engineer commissioner’s report dated 24.03.2022, the carpet area of the flat in question could not be measured being kept under lock and key by OP deliberately. The ‘share factor’ between covered area versus common areas worked out to be 17.48% as per report dated 27.11.2021 from Mr. Sukhendu Mandal, Regd Architect and Class A LBS (no 245) of Kolkata Municipal Corporation which the complainant produced as exhibit (2.4.1, 2.4.2, 2.5, 2.6.1 and 2.6.2). But the same is as per approved plan and not the physical measurement. Therefore due to recurring non-appearance and non-cooperation of the OPs and absence during inspection by court appointed engineer commissioner and deliberate action to keep the flat under inaccessible by keeping under lock and key, the evidence and exhibits as produced by the complainant becomes sacrosanct, being unopposed and unchallenged. Accordingly the exhibit with detailed working of actual carpet area of the flat admeasuring 750 Sq. Ft (after finished work in flat - post plastering) lends support to the claim on calculation, which is equivalent to a Super built up area/ Saleable area of 1000 Sq.ft [750 X 33.3%]. This proves that there is a deficit in supply of flat dimension in respect of SBU/Saleable area for 112 (1112-1000) Sq.ft.
The other type of deficiencies reported by the engineer commissioner are that the external wall should have been of 250 mm thickness as per approved plan or Sale agreement, which was found deficient as per expert opinion being only 125 mm. The inner work of the flat in question is incomplete as much as can be seen by viewing through eye hole of the door. The requirement of ventilation and illumination is also insufficient in violation as per National Building Code of India. The FAR approved for 2.5 was found upon inspection as 2.7 thereby exceeding allowable limit. Hence the ground coverage is not as per New Town Building Construction Rule, 2014. No availability of adequate ventilation and illumination as per standard codes and procedures. The photographs as exhibited in respect of above deficiencies also lends support to such findings.
However allegations regarding the area used as commercial purpose beyond approved plan area, violating New Town Building Construction Rules, 2009 and 2014 could not get adequately established. There is no proven finding about the width of the approach road to the building being 12-15 ft wide instead of 60 ft. The Occupancy Certificate no. 1517/PS dated 20.07.2017 was found issued by competent authority with remarks as ‘fit for occupation of residential (use group)’ alongwith endorsement on Building plan.
There is no reason not to and there are enough materials to rely upon the court appointed engineer commissioner’s report dated 24.03.2022 wherein it is established beyond doubt that the OPs are deficient in discharging their duties and responsibilities towards rendering proper services to the complainant in terms of the sale agreement wherein it is doubtlessly detected having lot of anomalies in providing proper services by the OP1 and OP2 in violation of the rules and procedures. The documentation exhibited by the complainant adequately and exhaustively depicts a plethora of deviations undertaken by the OPs and thereby deliberately lacking to extend promised services towards this consumer. All such exhibits also lend support to such allegations that are proved beyond doubt on it’s own merit although the OPs have preferred not to contest the case.
As such, the complaint case, which was heard ex parte, succeeds in full.
The complainant had to undergo a lot of mental agony and stress by the attitude of the opposite parties, since the opposite parties failed to abide with their promises to provide the possession of the apartment as per specifications which caused the complainant a loss. The complainants waited for years in a hope that the opposite parties shall give the possession, but failed to the utter surprise of the complainant. The complainant felt cheated and underwent a lot of mental agony and pain and again made visits of the construction site which revealed deficiencies on the site.
The opposite parties failed to provide the possession of the flat as per schedule. The opposite parties are guilty of showing gross deficiency in services on account of the fact that inordinate delay in the possession of the flat has been committed by them. Hence the opposite parties have committed serious deficiency in services by not delivering the physical possession of the allotted apartment to the complainant till date.
It is axiomatic that while dealing with a similar question with respect to the development of the project, the commission appointed an engineer commissioner who submitted report and confirmed the fact that the construction activities are incomplete and anomalous. The opposite parties are also accountable for unfair trade practices since they have enjoyed and utilised the hard earned money of the complainant without providing the possession of the apartment. The complainant in order to make the payment of the cost of the apartment took financial assistance and is to repay the loan on sizeable rate of interest. The complainant is also deprived of her legitimate right of possession of the flat and instead has been burdened and saddled with the repayment of the installments which is causing acute mental and physical discomfort to the complainant for which the opposite parties are responsible and are accordingly liable to compensate the complainant by making adequate payment of compensation and damages apart from interest on the amount deposited by the complainant. The complainant is the consumer of the opposite parties within the term, meaning and expression as is provided for the consumer under the provisions of the Consumer Protection Act and the complainant is having continuing and recurring cause of action to file this complaint case before this Commission. Hence, the complainants are entitled for reliefs.
Some observations of the higher forums in following Judgements are quite pertinent in this instant case supporting the contentions as stated above :-
The present complaint is decided accordingly.
ORDER
The complaint is allowed with cost.
- The opposite parties, jointly and severally, are directed to hand over physical possession of the said 3 BHK flat of type D in the 3rd Floor in Block 1 and a Car parking space in the basement at ‘Malati Apartment’ at Jatraganchi, P.S: New Town, North 24 Parganas alongwith all civil amenities duly completed as per executed sale agreement dated 07.07.2016 within 60 days from the date of this Order in this Complaint case.
- The opposite parties are jointly and severally liable to collect only the balance cost of the said flat and car parking area considering the actual super built up area / saleable area as 1000 sq.ft. only. The balance payable amount by Complainant to OP builder works out to be Rs. 3892000/- (plus) Rs. 300000/- car parking = Rs.4192000/- (less) paid already Rs. 3353600/- equals to Rs.838400/- (less) recovery for shortfall area {(Rs.3892000 /1112 sft) X 112 sft. = Rs.392000/-} i.e. Rs.= 4,46,400/- (Rs. Four Lac Forty Six Thousand Four Hundred) only which the complainant shall pay on the date of registration of flat. Taxex and statutory charges, if any, shall be bourne by respective parties as per sale agreement dated 07.07.2016.
- The opposite parties are liable to hand over IGR / Original Deed of Conveyance to the lender bank in terms of tripartite agreement between Purchaser/Complainant, Developer/OPs and Lender Bank as well as per existing terms and conditions and also morefully described by SBI in their letter dated 04.03.2016 addressing the OP builder.
- The opposite parties are jointly and severally liable to handover completion certificate and occupancy certificate to the complainant.
- The opposite parties are jointly and severally liable and directed to pay ₹ 5/- per Sq.Ft. per month for 1000 Sq.Ft Super Built up area from the scheduled date of handing over which is 30 months from 07.07.2016 i.e. 07.01.2019, till the date of actual delivery of possession of the said flat as Compensation in terms of Cl (5) and Cl (5.1) of the Sale Agreement dated 07.07.2016 for mental harassment, agony and sufferings.
- The opposite parties are jointly and severally liable and directed to pay Rs. 25000/- as Litigation cost to complainant.
All the decretal amount shall be paid within 60 days from the date of this Order otherwise the opposite parties will, jointly and severally, be liable to pay simple interest @ 12% per annum on all the decretal amount. If all the decretal amounts are not paid within 60 days from the date of this Order, the complainants shall also be at liberty to present Execution proceedings before this Commission.
Copies of this Order may be collected by parties as per CPR.
Dictated and Corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
