This complaint is filed by the Complainant u/S 12 of the Consumer protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs did not register the questioned flat measuring of 563 square feet and refund the excess amount as paid by her to the OP-1 for the flat measuring about 650 square feet till filing of this complaint.

The brief fact of the case of the Complainant is that she purchased a flat from the OPs. The OP-1 is the developer of the newly constructed flat who was the Constituted Attorney of the OP-2-land owner. The Complainant being intended to purchase a flat had entered into an agreement for sale with the OP-1 measuring 650 square feet at the ground floor consisting of two bed rooms, one dining, one kitchen and one bath cum privy of a newly constructed building  at a consolidated price of Rs.16,50,000/-. The agreement for sale was executed on 18.07.2015 by and between the Complainant and the OP-1. Pursuant to the said agreement the Complainant paid a sum of Rs.16,50,000/- by issuing two cheques each containing of Rs.9,00,000/- and Rs.7,00,000/- respectively towards the value of the said flat and it was further agreed that the balance sum of Rs.50,000/-shall be paid at the time of delivery of possession of the said flat or registration of the deed of conveyance whichever is earlier within 90 days and the OP-1 shall handover the completion certificate to the Complainant within the said period of time. It is surprising that after receiving the said amount of Rs.16,00,000/- the OP-1 did not turn up and failed to comply with his obligation which denotes that he had failed to keep his commitment to register the said flat, although the keys of the flat was handed over for taking possession without completion of registration.

Thereafter the Complainant took the measurement of the said flat with the assistance of a registered and approved LBS of Baranagar Municipality namely Sri. Prasanta Dutta and on being taken measurement of the said flat, it was surprisingly revealed that the actual measurement of the said flat stood at 563 square feet instead of 650 square feet, for which money was paid.  From the measurement sheet it is cleared that the OPs have delivered the flat measuring about 563 square feet, not 650 square feet. Furthermore the flat is not at all in habitable condition due to full of damp and water has been oozing throughout the wall of the said flat. The OPs were duly communicated about the aforesaid deficiency in service and anomalies in regard to the less measurement of the said flat as also the damp condition of the wall. It was stated by the Complainant that the flat is not fit for residing therein and requested to exchange or alter the said flat with another fresh/ defect free flat measuring 650 Sq.Ft. and to register the same without any further delay. Repeated request was made by the Complainant but the Op 1 did not bother to pay any heed to her request. The Ops have neither register the said flat nor taken any attempt for giving correct measurement of the flat as also removal of the dampness of the wall till filing of this Complaint. The Ops have miserably failed to offer her any fresh defect free flat to her till date which proves clear and gross deficiency in service as well as unfair trade practice on behalf of the Ops. Moreover, the Op 1 had received the entire consideration amount except Rs. 50,000/- for providing her the flat measuring about 650 Sq.Ft. but actually the Op 1 had delivered her the measurement as 563 Sq.Ft. Therefore the Op 1 is under the obligation to return her the excess amount as paid by her towards the consideration amount. It is clear that Op 1 is entitled to get consideration amount for the flat measuring about 563 Sq.Ft. not measuring 650 Sq. Ft. The Complainant being a senior citizen and a hapless widow she has no helping hand to agitate her grievance nor to assist her for chasing the matter after the Ops for removal of her grievance. Under such compelling situation being aggrieved and disgusted with the conduct and action of the Ops the Complainant has to made an alternative arrangement for her immediate shelter at Barisha Ramkrishna Mission, where she is now residing due to latches on the part of the Op 1 and 2 for non-compliance of their commitment. Due to such harassment ill treatment and non-redressal of her grievance the Ops are solely responsible for their misconduct which compelled the Complainant to settle at a different place. At present the Complainant is intending to register the said flat along with refund of the excess money. As the Ops did not take any step for redressal of her grievance, having no other alternative the Complainant is approached before this Ld. Commission by filing this  Complaint praying for direction upon the Ops to register the said flat measuring 563 Sq.Ft. in her favour to refund the excess amount as paid by her for 650 Sq. Ft., compensation to the tune of Rs. 1,70,000/- and litigation cost of Rs. 10,000/- to her.  

          After admission of this Complaint notices were issued upon the Ops through Speed Post with A/D. Date was fixed on 13.03.2020 for S/R and appearance. On 13.03.2020 the Complainant filed the track reports from where it was evident that in respect of Op 1 unserved envelop was returned with the endorsement as address absent and unclaimed. As unclaimed tantamount to good service, hence service was completed in respect of Op 1. On the said date service was not completed in respect of Op 2. Date was fixed on 30.03.2020 for filing w/v by the Op 1 as a last chance as well as taking necessary steps in respect of Op 2 by the Complainant. Be it mentioned that inspite of completion of service of notice in respect of Op 1, the Op 1 did not turn up. On 30.03.2020 file could  not be placed due to Lockdown declared by the Govt. of India as well as Govt. of West Bengal on account of severe outbreaking of Corona Virus. On 19.08.2020 this record was placed before the Ld. Bench for passing necessary order. It was appeared that Op 2 received the intimation about the pendency of this Complaint on 08.07.2020, but remained absent without taking any step. For this reason the Ld. Commission was pleased to pass an order mentioning that the Complaint will run ex parte against the Ops. Date was given for adducing evidence on 23.11.2020. On that day further date was given on 10.12.2020 for adducing evidence by the Complainant. On the said date it was submitted by the Complainant that the Ld. Advocate of the Complainant will advance final argument. On 18.01.2021 Complainant had adduced evidence on affidavit along with Brief Notes of Argument. Therefore it is clear to us that inspite of receipt of the notices the Ops chose not to appear before this Ld. Commission to contest the Complaint either orally or by filing w/v.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vsAman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of notices and their appearance, the OPs chose not to contest the complaint by filing written version. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.

We have carefully perused the petition of Complaint, evidence, BNA and also heard the argument as advanced by the Ld. Counsel for the Complainant. It is evident to us that admittedly the Complainant paid a sum of Rs. 16,00,000/- to the Op 1 for purchasing a flat and for this purpose the Complainant and the Op 1 had entered into an Agreement for Sale on 18.07.2015. The total consideration price of the said flat was fixed at Rs. 16,50,000/-. It  was settled that balance Rs. 50,000/- will be paid by the Complainant either at the time of taking possession or at the time of registration of the flat, whichever is earlier. In pursuance to the Agreement for Sale the Op had handed over the possession of the said flat to the Complainant along with the keys, but no possession letter was issued by the Op 1. Admittedly, the Op 1 had handed over the keys of the concerned flat before execution of the sale deed in her favour. Complainant took measurement of the flat with the help of registered and approved LBS of Baranagar Municipality and it was revealed that the actual measurement came at 563 Sq. Ft. instead of 650 Sq.Ft. In the Agreement for Sale it was mentioned by the Op 1 that the measurement of the flat will be 650 Sq. Ft. and according to the said measurement consideration amount was fixed for Rs. 16,50,000/-. After taking measurement the Complainant informed about the less measurement of the flat to the Op 1. Not only that it is also the case of the Complainant that the walls of the concerned flats were suffering from its dampness due to oozing of water. It was informed by the Complainant to the Op 1 but till filing of this Complaint the Op 1 did not take any step for removal of such defects or to redress the other grievance of the Complainant. As the flat had not yet been registered under compelling situation, the Complainant has been residing at another place. Being dissatisfied with the action of Op 1, this Complaint is initiated by the Complainant praying for certain reliefs as mentioned earlier.

Upon considering the facts and circumstances of the Complaint in our view as the Complainant had paid the entire consideration amount except Rs. 50,000/- the Ops are under the obligation to take immediate positive step for registration of the concerned flat in favour of the Complainant without any further delay. As the pleading of the Complainant has not been challenged by the Ops, hence we are also atone with the view of the Complainant that the Op 1 had handed over the concerned flat measuring 563 Sq. Ft. From the Agreement for Sale it is evident that the Op 1 was under the obligation to provide the flat to the Complainant measuring 650 Sq. Ft. and Complainant paid the consideration amount for 650 Sq. Ft. Therefore as the measurement of the flat has been reduced from 650 Sq. Ft. to 563 Sq. Ft. hence the Op 1 is under the obligation to refund the excess amount to the Complainant as paid by her to the Op 1. Regarding dampness of the wall we are of the view that Op 1 is also under the obligation to deliver or handed over the flat to the purchaser-Complainant in habitable condition as per the Agreement for Sale. In case of any inhabitable condition, the Op 1 shall also take step to remove the cause of inhabitability. As due to inaction of the Op 1 this Complaint is filed by the Complainant and has to incurred some expenditure for this litigation the Complainant is entitled to get some litigation cost as sough for. It is also true that there is deficiency in service on behalf of the Op 1 that inspite of receipt of the major amount from the Complainant the Op 1 did not take any positive step either to register the flat in favour of the Complainant and remove the defects as mentioned by the Complainant till filing of this Complaint. Due to such deficient service the Op 1 is liable to pay compensation to the Complainant.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no. 37/2020 is hereby allowed ex parte with cost.

The shall register the schedule flat in favour of the Complainant within 45 days from the date of passing of this Judgment. The Op 1 shall refund excess amount as paid by the Complainant for 87 Sq. Ft. to the Complainant within 45 days from the date of passing of this Judgment. The Op 1 shall pay compensation to the Complainant to the tune of Rs. 50,000/- and litigation cost of Rs. 10,000/- to the Complainant within 45 days from the date of passing of this Judgment, in default, the Complainant will be at liberty to put the entire decree into execution as per Provision of Law.

Let plain copy be given to the parties free of cost as per CPR.

Dictated and Corrected by

[HON'BLE MRS. Silpi Majumder]
                MEMBER