ORDER NO. 12 DT. 23.6.11

HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT

Appellant is present through Mr. Amitabha Roy, Ld. Advocate.  None appears on behalf of the Respondents to contest the Appeal. Heard the Appeal.  Judgement is delivered as under :-

Evidently the complainant was a tenant under the OP No. 2, who intended to develop the land in question through the Appellant No. 1 and accordingly asked the complainant to vacate the premises with an assurance to provide him one-room flat with common bath and privy measuring 113 Sq. ft. on the ground floor.  It was accordingly agreed by and between the complainant and the aforesaid Ops namely the Developer as well as the landowner/landlord of the complainant that a room on the ground floor together with common bath and privy measuring 113 sq. ft. would exclusively be sold to the complainant at a price of Rs. 30,000/-.  It is not in dispute that the complainant has been delivered with the possession of a room in the ground floor, but it has been proved in the complaint case that instead of delivering 113 sq. ft. only 96 sq. ft. has been delivered to the complainant.  Accordingly, the complaint case has been disposed of by the Forum below by directing the OP No. 1 either to deliver to the complainant possession of a room with common bath and privy having an area of 113 sq. ft., which is available in the third floor of the premises in question or in the alternative, to pay compensation to the tune of Rs. 10,000/- to the complainant for the aforesaid shortfall in the measurement of the floor area as above.

In course of hearing it transpires that a room with common bath and privy comprising 113 sq. ft., as agreed upon by and between the parties, may not be available in the premises in question which has been developed by the OP No. 1 pursuant to the aforesaid agreement.  In the circumstances as above, we are of the view that adequate compensation is the only remedy that is available to the complainant.

Regard being had to the aforesaid agreement between the complainant and the Ops as above and the fact that a room with common bath and privy having the floor area of 96 sq. ft. has been delivered to the complainant in complete breach of the agreement as aforesaid, we are of the view that Rs. 20,000/- would be the adequate compensation for such deficiency of service by the OP No. 1 instead of Rs. 10,000/- as awarded by the Forum below. 

We, therefore, dispose of this Appeal by directing the OP No. 1 to pay compensation for a sum of Rs. 20,000/- (Rupees twenty thousand only) to the complainant for delivering  possession of a room with common bath and privy having 17 sq. ft. less in the floor measurement than the area as agreed to be delivered in favour of the complainant.  The complainant will further be entitled to a sum of Rs. 2,000/- (Rupees two thousand only) by way of cost of this litigation.  It is further observed that the OP No. 1 shall also be obliged to execute and register the deed of conveyance in favour of the complainant in respect of the aforesaid room along with common bath and privy upon receipt of the balance consideration money, if there by any, from the complainant.  It is further recorded that pursuant to the impugned judgement and order the OP No. 1 has forwarded a Demand Draft for Rs. 11,000/- to the complainant, which the complainant has not yet encashed in view of the pendency of the above Appeal. The said Demand Draft being dt. 21.2.10 has since lapsed in the meantime.   The same may be returned to the OP No. 1 by the complainant. It is, therefore, ordered that the OP No. 1 shall accordingly issue a fresh Demand Draft in favour of the complainant as awarded by this judgement and order within a period of 30 (thirty) days from the date of communication of this order.    The impugned judgement and order is accordingly modified.  The Appeal is thus disposed of.