This is a complaint made by one Smt. Bishakha Bhattacharjee, wife of Sri Girija Pada Bhattacharjee, resident of P1, Rajdanga Goal Park, P.S.- Kasba, Kolkata – 107 against (1)Smt. Anima Karmakar, wife of late Madan Karmakar, resident of 787, Purbachal Road, 2^nd Lane, P.S.- Haltu, Kolkata-78, owner and (2) M/s J. M. Construction & Developer, represented by its proprietor Sk. Mojahid Ali, son of Sk. Anwar Ali, P.S.- Kareya, Kolkata-17, Developer, praying for direction upon the Developer to hand over possession of the flat as per agreement on payment of consideration money and for execution of registered deed of Conveyance in respect of the flat in question and also a direction upon the Developer to compensate for less area of 80 sq.ft. to the Complainant and compensation of Rs.5,00,000/-, alternatively an order for refund of Rs.10,50,000/- with interest @ 18%.

            Facts in brief are that Complainant booked a self contained flat of about 550 sq.ft. which  was to be constructed by the OP No.2. Complainant entered into an agreement on 16.8.2013 for a consideration of Rs.15,50,000/- out of which Complainant paid Rs.10,50,000/-. OP No.2 issued two notices upon the Complainant demanding rest of the consideration money of Rs.5,00,000/- and get the flat registered. In response to the Developer’s notices, Complainant replied asking OP to send Completion Certificate and to get measurement of the flat which is less by 80 sq.ft. Thereafter, Complainant served a legal notice that OP No.2 acted in a negligent manner and is liable for breach of contract. So, Complainant filed this case.

            OP No.2 filed written version and denied all the allegations of the complaint. But, he has admitted that he entered into an agreement with the Complainant for sale of a flat measuring about 550 sq.ft. super built area on a consideration money of Rs.15,50,000/-. The agreement for sale was executed on 16^th August, 2013.

            In paragraph 10, OP No.2 has mentioned that despite repeated notices and reminders the Complainant failed to pay the balance consideration money of Rs.5,00,000/-. OP No.2 delivered possession of owner’s allocation and addressed a notice to the Complainant to get the flat registered in his favour. Complainant, despite several demands, did not pay Rs.5,00,000/-. Further, OP No.2 has stated that deficit in the area in the super built is only 30 sq.ft. Further, OP No.2 has stated that he is ready to pay back the consideration received by him, if the Complainant so desires and he is ready to execute the deed of conveyance on receipt of the balance consideration money. So, OP No.2 has prayed for dismissal of this case.

Decision with reasons:

            Complainant has filed affidavit-in-chief wherein she has reiterated the facts mentioned in the complaint petition. Against to this OP No.2 has filed questionnaire to which Complainant has replied. OP No.1 has also filed questionnaire. OP No.2 has filed affidavit-in-chief wherein he has stated the facts mentioned in the written version. OP No.2 has filed written argument. Complainant has also filed written argument.

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

            On perusal of the written argument, it appears that on behalf of the Complainant the facts mentioned in the complaint has been repeated.

            Similarly, on perusal of the argument on behalf of the OP No.2, it appears that he entered into an agreement for sale with Complainant on 6^th August, 2013 and received Rs.7,50,000/-. Thereafter on 6.8.2013 Complainant paid Rs.3,00,000/-. But, as per agreement for sale, the Complainant failed to get delivery of possession on the plea that the measurement of flat was 470 sq.ft. in stead of 550 sq.ft. and on that ground he refused to pay the balance consideration money. Further, OP No.2 has stated that he is ready to pay back the entire paid up money to the Complainant in the event of cancellation of agreement for sale dated 6^th August, 2013. In the present case there is no report of survey passed commissioner for ascertaining the exact area of the flat to be sold by OP No.2. Complainant has prayed for handing over possession of the flat on payment of balance consideration. In this regard, it appears that there is a dispute over this as Complainant says that the area of flat is short by 80 sq.ft., wherein as OP No.2 contends that it is short by only 30 sq.ft. Further, it is the contention of the Complainant is that he has received the possession of the flat. But, OP No.2  has contended that Complainant had not taken possession of the flat, as he has said that the super built is short by 80 sq.ft.

            In the circumstances, it would be judicious to direct OP No.2 to return the money he has taken from the Complainant with interest.

            Hence,

ordered

            RBT/CC/43/2016 and the same is allowed in part. OP No.2is directed to refund Rs.10,50,000/- with interest of 10% from the date of filing of this case within two months of this order.