CC/489/2018
Dt. of filing : 06/08/2018
Dt. of Judgement : 31/03/2021
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sri Gokul Chandra Saha under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (referred as OPs hereafter) namely 1) Sri Binod Chowdhury and 2) Sri Banaswer Kar alleging deficiency in service on their part.
Case of the Complainant in short is that he entered into an agreement dated 26/1/2016 with the Opposite Parties to purchase a self contained flat measuring 614 Sq ft at Kolkata Municipal Corporation premises no.201, New Shibtala Road, Kolkata-700070 at a consideration of Rs.17,20,000/-. Complainant has paid Rs.16,00,000/- on different dates and Opposite Party No.1 the developer has also issued a possession letter dated 1/07/2016 stating about handing over of the possession of flat no.A-1 on the first floor of south west front side measuring super built up area 622 Sq ft i.e. more than the measurement as stated in the agreement dated 23/01/2016. So on being doubtful Complainant requested the Opposite Party No.1 to ascertain the actual measurement of the flat and thereafter complete the registration of the flat on payment of balance amount. But Opposite Party No.1 did not take any step. Opposite Party No.2 is the land owner of the premises. Ultimately Complainant through a Licenced Surveyor ascertained the actual measurement wherefrom it transpires that the carpet area of the flat is 336.21 Sq ft i.e. super built up area should be 403.452 Sq ft after adding 20% of the carpet area. So as per physical measurement the valuation comes to Rs.11,29, 665/-. So the Complainant has paid excess amount of Rs.4,70,334/- which he is entitled to get back. Opposite Party No.1 neither took any initiative for joint measurement of the flat nor took any step to return back the excess money or to execute the Deed of Conveyance inspite of several requests by the Complainant. So the present complaint has been filed praying for directing the Opposite Party No.1 to hold a joint measurement by a Survey passed Commissioner for ascertaining the actual measurement of the flat, on receipt of the Commissioner’s report to determine the actual price, to refund the excess amount, to execute the Deed of Conveyance, to pay compensation and litigation cost.
Complainant has annexed with the complaint, copy of the agreement for sale dated 26/01/2016, development agreement, copy of the General Power of Attorney executed by the owner, possession letter dated 1/07/2016, Money Receipts/Bank Statement, correspondence with Opposite Party No.1 and the sketch map of the Surveyor dated 25/7/2018.
Opposite Party No.1 has contested the case by filing the written version denying and disputing the allegation contending inter alia that inadvertently the area of the flat in dispute has been written in the possession letter as 622 Sq ft instead of actual area of 614 Sq ft as per agreement. Opposite Party the developer number of times requested the Complainant to fix a date for taking actual measurement of the flat in question and to be ready for registration of Deed of Conveyance. But no step was taken by Complainant. The flat in dispute is in occupation and possession of the Complainant since 1/07/2016 and so without co-operation of the Complainant, measurement could not be done. Opposite Party No.1 has denied about handing over the flat measuring less area than what is stated in the agreement. Since the Complainant is in possession of the flat from 1/07/2016, he is liable to pay occupational charge @Rs.8,000/- per month. So Opposite Party No.1 has prayed for dismissal of the case and has also made some counter claim.
Opposite Party No.2 has also contested the case by filing written version contending inter alia that Opposite Party No.2 entered into development agreement on 5/1/2014 with Opposite Party No.1 and also executed the Power of Attorney in favour of Opposite Party No.1. Opposite Party No.2 had no knowledge of the sale of the flat by Opposite Party No.1 to the Complainant. Opposite Party No.2 has neither received any money nor has signed in the agreement. However, he has submitted that he has no objection if there is joint measurement of the Complainant’s flat.
During the course of the trial parties filed their respective evidence followed by filing of questionnaire and reply thereto and ultimately BNA has also been filed by the Complainant and Opposite Party No.1.
So the following points require determination:
- Whether there has been any deficiency in rendering service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion in order to avoid repetitions.
Complainant has claimed that he has been delivered possession of a flat measuring super built up area 403.452 Sq ft instead of 614 Sq ft as per agreement entered into between him and the Opposite Party developer on26/1/2016. He has made excess payment of Rs.4,70,334/- which he is entitled to get back. In support of his claim that the flat which has been delivered to him by the Opposite Party measures super built area of 403.452 Sq ft. Complainant has filed a sketch map prepared by a Surveyor dated 25/7/2018. On the other hand Opposite Party developer has claimed that he has handed over the possession of flat as per agreement. However, due to bonafide mistake area has been mentioned in the possession letter as 622 Sq ft in place of 614 Sq ft. It is further contended by the Opposite Party developer that Kolkata Municipal Corporation has already issued completion certificate and he has filed copy of the said completion certificate along with first floor plan of the said premises no.201, New Shibtala Road prepared by Sri Kush Kundu who is an enlisted L.B.S. of Kolkata Municipal Corporation.
At the very outset it may be pertinent to point out that Complainant in this case did not take any step during the trial, for measurement of the flat to ascertain the actual area by way of appointment of Survey passed Commissioner or by Engineer Commissioner. No petition was filed by the Complainant for measurement of the said flat by appointment of Survey passed Commissioner or Engineer Commissioner. He has only relied on the sketch map by Surveyor namely Pradip Das, who allegedly conducted the measurement and prepared the said sketch map on 25/7/2018. But on a careful perusal of the completion certificate along with the first floor plan of flats filed by Opposite Party No.1, it appears that there does not exist any flat measuring an area as shown by the Surveyor Pradip Das in the sketch map dated 25/7/2018. Complainant has to establish by filing the documents that there existed flat of such an area as alleged by him because if there was any deviation from the sanctioned plan by the developer then the Kolkata Municipal Corporation would not have issued the completion certificate. It is settled principles of law that party seeking the relief has to establish his case. So it is for the Complainant to establish that he has not been handed over the possession of the flat as agreed in the agreement but it is lesser area. It further appears that the possession of the flat was handed over to the Complainant admittedly on 1/07/2016. He did not take any step nearly for one year and it is only on 25/1/2018 the measurement of the flat allegedly was taken by the said Surveyor. It is not clear as to why Complainant remained silent after taking possession of the flat. However it has been contended by the Opposite Party developer that he has been ready and willing to measure the area of the flat. But since the possession of the same was with the Complainant, necessary step in this regard was required to be taken by the Complainant. So as before this Commission barring said Surveyor’s sketch map there is absolutely no document that the flat in question is less in area, claim of the Complainant cannot be accepted especially on consideration of the map of first floor filed by Opposite Party No.1 with completion certificate showing that there does not exist any such flat of area as shown in the sketch map by Surveyor Sri Pradip Das. It will not be out of place to mention here that the Complainant has prayed for directing the Opposite Party developer to hold joint measurement by Survey passed Commissioner and thereafter further direction to refund the excess amount but the said relief as sought for by the Complainant to refund the excess amount cannot be allowed in the absence of any evidence that the area in the flat is less. It is already highlighted above that the Complainant ought to have taken step for joint measurement by appointment of Survey passed Commissioner during the trial of this case and not as a final relief.
However as admittedly Deed of Conveyance has not been executed and registered by the Opposite Parties, Complainant is entitled to the execution and registration of the deed on payment of balance consideration of Rs.1,20,000/-.
Hence,
O R D E R E D
CC/489/2018 is allowed in part on contest against Opposite Parties. Opposite Parties are directed to execute and register the Deed of Conveyance in favour of the Complainant as per agreement dated 26/01/2016 within two months from this date on payment of balance consideration of Rs.1,20,000/- by the Complainant to the Opposite Party No.1. Opposite Parties are further directed to pay litigation cost of Rs.10,000/- to the Complainant within the aforesaid period of two months.
