This is a complaint filed by one Amalendu Dey S/o Lt. Ramani Ranjan Dey against Shri Krishna Construction and Smt. Anindita Dutta, Proprietor of said construction house, praying for a direction upon the OPs to provide him with the Building Completion Certificate in respect of the concerned flat and to compensate him @ Rs. 4,000/- per sq. ft. for the shortfall area of 250 sq. ft. totalling Rs. 10,00,000/- and to pay Rs. 1,50,000/- as compensation and Rs. 1,00,000/- as litigation cost.

Facts, in brief, are that Complainant was the lawful owner of a plot of land measuring about 03 Cottah 5 Chittacks being Khatian No. 311, Dag No. 138, Mouza Saiydpur, J.L. No. 12, KMC Ward No. 122, being Premises No. 197/4, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 700 082.  He entered into a joint venture agreement with the OPs, where it was decided that OPs would provide him a self-contained flat measuring about 1,200 sq. ft. super built up area at the second floor of the flat.  Further, Complainant submits that OP constructed a G+3-storied residential building and allotted a flat measuring 1,200 sq. ft. in compliance of the agreement.  Thereafter, Complainant got mutated the said flat in his name with the Kolkata Municipal Corporation.  Complainant took loan from United Bank of India for interior works of the flat.  Complainant engaged one Novara Consultancy Services for the said job.  Allegedly, the Complainant was apprised by the said agency that the flat was of only 950 sq. ft. Complainant, thereafter made several persuasion with the OPs to make the deficit good, but to no avail.  Thereafter, Complainant served a Demand Notice upon the OPs through his Ld. Advocate on 09-11-2015, but still the OPs remained unmoved.  So, Complainant filed this case.

OPs filed WV, wherein they have denied all the material allegations of the Complainant.  Their further allegation is that the shortfall of about 250 sq. ft., as stated by the Complainant, is baseless.  The actual measurement of the Complainant’s flat is 1130 sq. ft. and in terms of the agreement, OPs compensated the said shortfall by providing one office space of about 100 sq. ft. on the ground floor of the same premises in the year 2012 itself.  Complainant is allegedly enjoying another office space on the ground floor of the said premises for which he has made a commitment to pay Rs. 3,00,000/-, but till date such promise remained unfulfilled.  Further, OPs have stated that a garage of 175 sq. ft. has also been handed over to the Complainant.  So, OPs prayed for dismissal of the complaint.

Decision with reasons

Complainant filed Affidavit-in-Chief in order to substantiate his claim.  However, OPs did not file any questionnaire despite seeking time on several occasions for doing so.  So, the case was fixed for argument.

Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

First relief prayed for by the Complainant is for a direction upon the OPs to pay Rs. 10,00,000/- in lieu of the alleged shortfall of 250 sq. ft. in respect of the flat that was handed over to him by the OPs in terms of the joint venture agreement.  Further, Complainant has also prayed for a direction upon the OPs to handover the building completion certificate.

In this regard, it is claimed by the Complainant that he had been deceived by the OPs as the latter handed him over a flat of only 950 sq. ft. instead of 1,200 sq. ft. as agreed upon in between them.  On the contrary, it is the case of the OPs that the actual shortfall is only 70 sq. fl. that too they claimed to have made good by providing a shop room of approx. 100 sq. ft. on the ground floor of the flat.  Further, it is alleged by the OPs that the Complainant is yet to pay Rs. 3,00,000/- in respect of another office space of approx. 175 sq. ft.

Now, the question remains, whose allegation is correct.  Complainant has filed Affidavit-in-Chief, wherein he has reiterated the facts as stated in the complaint petition.  On the contrary, although OPs have not filed any Affidavit-in-Chief in support of their contention, they have filed the WV under affidavit. 

Complainant has filed certain documents to establish his claim.  Complainant has filed photocopy of a Sale Deed dated 08-09-1982 by which Complainant purchased the property from previous owners.  Anx. B is the photocopy of joint venture agreement, on perusal of which it appears that he entered into an agreement with the OPs whereof it was agreed upon in between them that OPs would handover a flat measuring 1,200 sq. ft. and another garage of 125 sq. ft. Photocopy of a map is also annexed with the joint venture agreement.  Anx. D is the mutation certificate dated 05-08-2015, issued by the Kolkata Municipal Corporation in favour of the Complainant, Anx. E is the photocopy of a Valuation Certificate dated 18-08-2015, issued by Novara Consultancy Services.  Anx. F is the photocopy of legal notice dated 09-11-2015, issued by the Ld. Advocate of the Complainant upon the OPs.  Anx. G is the photocopy of a postal track report. Anx. H is the photocopy of a complaint letter dated 20-12-2015 submitted before the Officer-in-Charge, Haridevpur P.S. by the Complainant.

Be it a 950 sft. Flat, as claimed by the Complainant, or a 1,130 sft. Flat, as stated by the OPs, undisputedly, OPs have not handed over a flat measuring 1,200 sq. ft. to the Complainant in consonance with the joint venture agreement concerned.  However, we find that in lieu of it, OPs have handed over an office space of approx. 100 sq. ft. Besides, it is also noteworthy that the OPs claimed to have handed over a garage of 175 sq. ft. instead of 125 sq. ft. as was agreed upon between them.  Significantly, the Complainant has not refuted the averments of the OPs in this regard by providing cogent documentary proof.  Further, it is also alleged by the OPs that the Complainant is yet to pay Rs. 3,00,000/- in respect of another office space.  Curiously, the Complainant remained a mute spectator as regards this allegation advanced from the side of the OPs. Last but not the least, it appears from the documents on record that Complainant got possession of the flat in question on 11-05-2012 and going by the version of the Complainant, he became aware of such fact after nearly 3 years.  This appears very surprising because a shortfall of 250 sq. ft. is quite significant and it is hard to believe that the Complainant got no wind of such anomaly over a period of long 3 years.  In this regard, it is claimed by the OPs that the actual shortfall is only of 70 sq. ft. and that too has been compensated by them by providing an office space of 100 sq. ft. on the ground floor of the flat. It is a clear pointer of the fact that Complainant has not approached this Forum with clean hands.  Besides, although the Complainant has banked upon the report of Novara Consultancy Service to substantiate his claim of a shortfall of 250 sq. ft. in respect of his flat, no affidavit is filed from the side of the said agency.  So, we are not inclined to take any cognizance of the same. It is because, the law entails that claimant should prove his case.  As long as this aspect is not discharged properly by a claimant, a Court of Law cannot frame its mind based on an unproven document.

In the light of foregoing discussion, we are of view that the Complainant is not entitled to any of the relief as prayed for by him.

Hence,

O R D E R E D

that CC/41/2016 be and the same is dismissed on contest against the OPs without any order as to costs.