Hon’ble Mr. Ajeya Matilal, Presiding Member
This is a case u/s 17 of the C.P. Act, 1986 filed by the complainant with a prayer for direction upon the OP / developers and landowners for execution and registration of a deed of conveyance in respect of the aforesaid flat mentioned in the agreement for sale compensation of Rs. 2,00,000/- and litigation cost of Rs. 25,000/-.
The fact of the case is in short like that the complainants approached the OPs for purchasing a self contained residential flat in a proposed building for residential purpose against the payment of consideration money. The OP no. 1(a) and 1(b) were carrying on business of promotion and development under partnership under the name and style Patranjali Construction having their office at 116 Old Calcutta Road, P.O. Talpukur P.S. Titagarh, Kolkata 700019 (24 Pgs North).
The OP no. 1(a) and 1(b) entered into a development agreement with the OP no. 2 being the landowner in the year 2014 vide deed no. 00084 registered in the office of A.D.S.R Sodepur and a Power of Attorney of development was also registered in the office of A.D.S.R Sodepur in this regard. Thereafter the complainant entered into an agreement for sale with the OPs for purchasing one self contained flat measuring about 1000 sq. ft. super built up area at the 1st floor being flat no. 1A of the G+3 storied building lying at Mouza Khardah J.L. no. 2 R.S. plot no. 3151/3710 under Khatian No. 1310 within the limits of Titagarh Municipality, Ward No.17, Holding No. 32 Natun Pally P.S. Khardah, Dist, North 24 Pgs. The total consideration amount was Rs. 22,00,000/- @ 2200 per sq. ft. The aforesaid agreement for sale was registered on 30.09.2015 in the office of the A.D.S.R Sodepur vide deed no. 05181 for the year 2015. Out of the said consideration money the complainants paid 21,50,000/-. The complainants also received the possession of the said flat in the month of January 2016.
The developer/ OP no. 1 issued a letter dt. 21.09.2016 calling upon the complainant to get the said flat registered upon payment of Rs. 6,88,882/- claiming on extra area of the flat because they found that the area of same was 1191.38 sq. ft. The complainants denied the measurement of the said flat by their reply dt. 06.10.2016. Subsequently, the developers by their letter dt. 02.11.2016 asked the complainant to pay the additional amount as claimed by them earlier. So, the complainants filed the instant case.
All the OPs contested the case by filing a W.V denying the material allegations of the claim petition along with some technical pleas.
According to OPs, the complainants are liable to pay the amount of Rs. 6,88,882/- and they also stated that in the event of making such payment they would execute and register the sale deed.
The complainants and OPs adduced their evidence on affidavit. They were cross examined in the form of putting questionnaire to them and both parties gave replies to the questionnaire.
Now, the points for consideration is that
- Whether the complainants are consumers?
- Whether there is any deficiency in service on the part of the OPs?
- Whether the complainants are entitled to relief as prayed for?
For the sake of convenience all the points are taken together for discussion.
We found the copy of development agreement dt. 10.02.2014 on record. The agreement for sale dt. 30.09.2015 is enclosed in annexure P2. The Power of Attorney mentioned earlier is in annexure P1. It appears from the memo of consideration enclosed with the agreement for sale that the complainants paid Rs. 20,00,000/- which was duly received by the OPs. Subsequently, the complainants paid Rs. 1,50,000/- to the OP / developers.
But as there was some disputes between the parties regarding the measurement of areas of flat so at the prayer of the complainant an Engineer Commissioner was appointed and he submitted a report dt. 25.05.2018. It appears from the report that the covered area of the flat is approx 794 sq. ft. and super built up area worked out to 993 sq. ft. The said report was never challenged by either of the parties. In the mean time the OP no. 1(a) expired on 24.09.2018. So, his name was expunged from the complaint as per order no. 10 dt. 28.01.2019. The Ld. Advocate for the OP submitted that as per direction of the complainant they performed some extra work and the cost of the same is Rs. 1,22,703/-. It was arguably disputed by the Ld. Advocate for the complainants. In this context, the Ld. Advocate for the OPs drawn our attention to the declaration made by the complainant dt. 09.03.2016. It is an admitted position that the complainants were put into possession of the flat January, 2016. According to the Ld. Advocate for the complainant after payment of the aforesaid amount of Rs. 21,50,000/- he is still required to pay Rs. 34,600/- being the balance consideration amount. The complainants also have to pay service tax as applicable.
In view of above discussion all the points are decided in favour of the complainants answering in affirmative.
So the case succeeds.
Accordingly, the complaint case no. 73/2017 is allowed on contest against the OPs with litigation cost of Rs. 20,000/-. All the OPs are directed to execute and register a deed of conveyance in respect of the flat measuring 993 sq. ft.super built up area at 1st floor being flat no. 1A of the G+3 storied building lying at Mouza Khardah J.L. no. 2 R.S. plot no. 3151/3710 under Khatian No. 1310 within the limits of Titagarh Municipality Ward No.17, Holding No. 32 Natun Pally P.S. Khardah, Dist, North 24 Pgs within 90 days from the date of this order on payment of Rs. 1,57,303/- by the complainants to the OP no. 1(b) being the developer subject to payment of service tax as applicable by the complainants and the OP no. 1 (b) will pay compensation of Rs. 1,20,000/- to the complainants within the stipulated period, failing which, it shall carry interest @ 8% p.a. from this date till the date of realisation. The complainants will be at liberty to put the award into execution after expiry of the stipulated period.
