HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIENT

            This judgment governs both the appeal being A/956/2018 and A/957/2018. Both the appeals arose out of CC/126/2015 and CC Execution case no. 53 of 2016, arose out of the decree passed in CC/126/2015 disposed of by DCDRC, Hooghly by order dated 02-09-2016. The parties involved in both the appeals are identical. The appellant in both the appeals i.e. Tarama Construction was the Developer who was entrusted to develop a plot of land, referred to in schedule ‘A’ of the petition of complaint of CC/126/2015 and it was decided as per agreement between the parties that the land owners i.e. the respondents of both the appeals would get 30% of the constructed area of the ’A’ schedule property and rest 70% would be allotted to the Developer. The complainant of CC/126/2015 and the proforma/OPs no. 2 and 3 viz. Chandan Banerjee, Snehalata Banerjee and Bithi Banerjee are the land owners. The complainant i.e. Chandan Banerjee filed the complaint case claiming proportionate share of the building allotted to him as per agreement and he claimed such relief in the proceeding being CC/126/2015 which was allowed exparte and the appellant herein i.e. Tarama Construction represented by proprietor Sunita Mukherjee was directed to hand over the flat measuring 673.6 sq. ft. covered area in the same building or to compensate by payment of Rs. 4,91,000/- (Rupees four lakh ninety one thousand) for the shortfall of the area which the complainant was entitled to. The appellant was directed to pay a sum of Rs. 5,000/- (Rupees five thousand) towards compensation, for harassment and mental agony and Rs. 5,000/- (Rupees five thousand) towards other cost to be paid with one month with default clause.

      Being aggrieved by such direction the OP/Tarama Construction represented by its sole proprietor Sunita Mukherjee preferred this appeal and prayed for setting aside the order impugned, passed by Ld. DCDRF, Hooghly in CC/126/2015.

      Heard Ld. Counsel for the parties at length and from a bare perusal of the Development Agreement dated 14-03-2013 it appears that the complainant and his other co-owners of the plot in question would be entitled of 30% of the total area of the building measuring more or less 1554 sq. ft. but the complainant/respondent no. 1 got only 450 sq. ft. and he is claiming proportionate value of rest 70 sq. ft. from the total area (i.e. 520 sq. ft. – 450 sq. ft.) or valuation of the property @ Rs. 2000/- per sq. ft.

      Ld. Counsel for the appellant fairly conceded that his client was always intending to pay the value of the area shortfall and filed a document in course of hearing to establish that he paid such amount of Rs. 1,50,000/- (Rupees one lakh fifty thousand) in the mean time. Such claim of the appellant was clearly denied by the respondent no. 1 rather he admitted with all fairness that the payment of Rs. 1,50,000/- (Rupees one lakh fifty thousand) by the appellant to the respondent no. 1 was for some other purpose but not in lieu of valuation of the shortfall of 70 sq. ft. On perusal of the said document it further appears that the respondent no. 1 received the amount of Rs. 1,50,000/- (Rupees one lakh fifty thousand) for monthly house rent and rent for rest of his plot in front of the proposed building used during construction. On perusal of the said document filed on 15-02-2022 before this Commission we are of the opinion that the appellant never paid such amount of claim of the respondent no. 1 towards valuation of the shortfall area i.e. 70 sq. ft. @ Rs. 2,000/- per sq. ft. and the document produced on behalf of the appellant with regard to earlier payment as per letter do not justify that he paid that amount in lieu of the valuation of the shortfall of 70 sq. ft. Hence we dispose of the appeal by modifying the order dated 02-09-2016 passed the exparte against the appellant in CC/126/2015 and direct the appellant/Tarama Construction, represented by its sole proprietor, Sunita Mukherjee to compensate the respondent no. 1 by paying a sum of Rs. 1,40,000/- (Rs. 2,000/- X 70 sq. ft.) and a further sum of Rs. 10,000/- (Rupees ten thousand) towards compensation and litigation cost (consolidated). The other part of the order including punitive damages are hereby set aside.

      So far as the A/957/2018 under section 27A of the Consumer Protection Act is concerned, the appellant challenged the order of the DCDRF passed in CC Execution case no. 53 of 2016 being order no. 3 dated 10-10-2018 with regard to issuance of Warrant of Arrest against the appellant. Now upon disposal of A/956/2018 in the aforesaid manner, the order passed in execution proceeding become infructuous and accordingly we dispose of the appeal (A/957/2018) by setting aside the order (i.e. order no. 3 dated 10-10-2018) and direct the judgment debtor to pay the decretal amount of Rs. 1,40,000/- (Rupees one lakh forty thousand) + Rs. 10,000/- (Rupees ten thousand), as stated above within one month from the date of the order and on payment of such amount to the respondent no. 1/decree holder, the appellant of A/956/2018 would be entitled to realise the deposited amount and accrued interest deposited by her in connection with the A/956/2018 as per order dated 16-12-2019. In default of payment as per above order to the decree holder/respondent no. 1 the office of the SCDRC would be at liberty to refund the above noted deposited amount after deducting the decretal amount of Rs. 1,40,000/- + Rs. 10,000/- and paying it to the decree holder/respondent no. 1. The above appeals are disposed of in the above manner for finality of litigation. Parties do bear their respective costs of Appeal.