Judgment : Dt.10.10.2017
Shri S. K. Verma, President.
This is a complaint made by one Smt. Sonali Basu, wife of Ashok Kumar Basu of 13/D, Bikramgarh, P.O. & P.S.-Jadavpur, Kolkata-700 032 against Sri Bapi Saha, s/o Late Nibhas Chandra Saha, 36/D, Bikramgarh Colony, PO.& PS-Jadavpur, Kolkata-700 032 praying for a direction to pay the extra unfair money which OP received and which is to the tune of Rs.1,67,400/- with current bank interest since 30.1.2016 and further direction to pay compensation of Rs.2,50,000/- for mental torture and agony suffered by the Complainant due to faulty acts and unfair trade practice of the developer and litigation cost.
Facts in brief are that agreement for sale dt.17.2.2015 was made with OP developer and Complainant for a flat on the 2nd floor, front side, measuring about 400 sq.ft. at a consideration of Rs.2,700/- per sq.ft. Complainant made an advance payment of Rs.3,00,000/- to the OP by cheque on 5.1.2015 and OP gave a money receipt @ Rs.2,700/- per sq.ft. Complainant made another part payment of Rs.6,00,000/- and Rs.1,50,000/- in cash and cheque. Complainant made another payment on 30.1.2016 of Rs.2,46,000/- to the OP vide cheque No.224075, drawn on UBI. On 19.7.2016 OP handed over the possession of the suit flat and on the same day one deed of conveyance was registered and in the schedule B it was written 450 sq.ft. super built up area. OP received total consideration price of Rs.12,96,000/- in place of Rs.11,28,600/- @ Rs.2,700/- per sq.ft. So, OP received Rs.1,67,400/- extra unfair money which he should have refunded. Further, giving possession of the flat, Complainant inspected that the measurement of flat which is written in deed of conveyance as 450 sq.ft. is much bigger than the actual position. Complainant appointed one building surveyor, namely Subhasis Mondal and he submitted one site plan which states that the covered built up area of the flat is 349 sq.ft. and taking into account the common area it comes under 418.8 sq.ft. OP has mentioned the measurement of the flat being 400 sq.ft. in the agreement for sale and measurement of the flat is 450 sq.ft. in the deed of conveyance. Firstly he agreed to sale the flat at Rs.2,700/- per sq.ft. Finally, he received Rs.3,105/- per sq.ft. It is, therefore, developer received 1,64,700/- extra using unfair trade practice. Complainant requested the OP to refund the money. But of no use. So, Complainant filed this case.
OP filed written version and contested the case by denying all the allegations of the complaint. Further, on perusal of the written version filed by the OP, it appears that OP has denied the allegations which has been made in the complaint petition. OP has also stated that there is no cause of action and complaint is required to be dismissed.
OP has stated that the dispute of measurement of the flat is nothing but an excuse for filing this complaint for compensation and litigation cost. So, OP has prayed for dismissal of the case.
Decision with reasons
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint petition, it appears that Complainant has prayed for a direction upon the OP to refund of Rs.1,67,400/- as extra money which OP received.
In this regard, it appears, on perusal of the original deed in favour of the Complainant that one flat of 450 sq.ft. super built up area consisting of one dining cum kitchen, one bedroom and one bathroom, was sold to the Complainant by the OP after receiving the total consideration money as per the agreement for sale dt.nil. The agreement for sale has not been signed by either of the parties up to page 13 only on page 14 the signature of Sonali Bose appears as owner and developer Bapi Saha. Further, it appears that Complainant did not make any application for determining the area of the flat. The sale deed was executed on 19.7.2016. The dispute which Complainant has raised can only be resolved by appointing Ld. Commissioner, which has not been done in the present case. Accordingly, we do not find that Complainant proved the allegations of the complaint.
Hence,
ordered
CC/606/2016 and the same is dismissed on contest.
