Date of filing : 06.06.2017
Judgment : Dt.14.01.2019
Mrs. Balaka Chatterjee, Member.
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. sikha Roy alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely Sri Partha Chcowdhury.
Facts in brief, are that the Complainant being desirous of purchasing a flat approached the OP, owner cum builder of the premises upon which a building consisting of several flats to be constructed and visited the construction site o f the OP and being satisfied booked a flat being No.10 measuring about 575 sq.ft. on the 2nd floor, South West side of the building to be constructed at a consideration of Rs.7,00,000/- out of which paid Rs.4,00,000/- by cheque towards booking money but no Agreement for Sale was executed between the parties although the OP had promised to execute the same. The Complainant has stated that subsequently the OP started avoiding her and observing such behavior of the OP, the Complainant lodged several complaints before SARSUNA P.S. and on intervention of the said P.S. an Agreement for Sale was executed under caption “Undertaking” on 8.2.2016, wherein it was mentioned that measurement of the flat in question is 575 sq.ft. and entire consideration amount was Rs.7,00,000/- out of which an amount of Rs.6,30,000/- had been paid and balance amount of Rs.70,000/- was paid on 8.2.2016 and the OP handed over the physical possession of the said flat on the same date but, thereafter, again took dilatory tactics to execute and register the Deed of Conveyance and on 24.9.2016 handed over the copy of plan and asked the Complainant to pay Rs.1,20,000/- towards Registration charges including Lawyer’s Fee which was paid by the Complainant by four cheques being Nos.633034 dt.7.5.2016, 606210 dt.17.5.2016, 606217 dt.8.6.2016 and 606218 dt.22.7.2016 drawn on Canara Bank and finally Deed of Conveyance had been registered in favour of the Complainant on 10.3.2017. The Complainant has further stated that on the date of Registration she was not allowed to verify the copy of Deed of Conveyance and on obtaining copy of Deed of Conveyance she found that measurement of the flat mentioned therein is 460 sq.ft. super built up area instead of 575 sq.ft. super built up area although it was mentioned as 575 sq.ft. super built up area on the undertaking dt.8.2.2016 and e-assessment slip dt.21.9.2016 but in the e-assessment slip dt.8.3.2017 it is mentioned that stamp duty payable by the Complainant was Rs.72,056/- and Rs.12,020/- as registration fee which is lesser than e-assessment dt.21.9.2016. It is further stated by the Complainant that the OP did not refund excess amount paid by the Complainant for registration and, moreover, committed unfair trade practice by transferring the flat which is lesser by 115 sq.ft. area and finding no other alternative the Complainant by filing the instant consumer complaint prayed for direction upon the OP to refund price of 115 sq.ft. less area at the present market value, to refund excess amount received by the OP for registration of Deed of Conveyance and to deliver Completion Certificate, to pay Rs.2,50,000/- towards compensation and Rs.5,000/- towards cost of litigation.
The Complainant annexed undertaking dt.22.2.2016, Deed of Conveyance dt.10.3.2017 e-assessment slip dt.8.3.2017, e-assessment slip dt.15.9.2015, site plan, e-assessment slip dt.21.9.2016, Advocate’s letter, complaint dt.15.2.2017 addressing Joint Commissioner of Police and letter dt.26.8.2016 issued by the Complainant addressing the Officer-in-Charge, Sarsuna P.S.
The OP contested the case by filing written version stating inter alia that Ld. Advocate for the Complainant taking opportunity of ignorance of the Complainant drafted the petition in an unjustified manner, which is contrary to the provision of Advocates Act and statement made there in as baseless and accordingly prayed for dismissal of the case.
The Complainant adduced evidence to which the OP files questionnaire and the Complainant files reply.
The OP by adducing evidence has stated that no Agreement for Sale was executed between the parties in respect of the flat in question and, therefore, exact measurement of the flat was not clear. The OP has further stated that he was agreeable to execute Deed of Conveyance of a flat measuring an area of 575 sq.ft. super built up area and, therefore, available carpet area may be 460 sq.ft. and the Complainant being fully aware of the fact put her signature on the Deed of Conveyance. It is further stated by the OP that he was ready and willing to have an impartial commission for proper survey so that misunderstanding between the Complainant and the OP might be removed.
The Complainant filed questionnaire against evidence of OP to which the OP filed reply.
In course of argument, Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint.
Ld. Advocate for OP submitted that the Complainant had admitted the fact in the letter dt.26.8.2016 issued by her addressing the Officer-in-Charge, Sarsuna P.S. that she was handed over the flat measuring 575 sq.ft. and due to dearth of fund registration Deed of Conveyance could not be done. It is also submitted by the OP that on instruction of the Complainant measurement of the flat has been mentioned as 460 sq.ft.
Points for determination
- Whether there is deficiency in providing service?
- Whether the Complainant is entitled for the relief as prayed for?
Decision with reasons
The Complainant claimed to have booked a flat having No.10 at a proposed building to be constructed by the OP.
On scrutiny of documents on record it appears that the OP undertook to handover possession of the said flat having area of 575 sq.ft. It appears from the documents o n record that the OP handed over possession of the said flat on 8.2.2016. It also appears from the record that the Deed of Conveyance in respect of the said flat has been registered on 10.3.2017 in favour of the Complainant, wherein area of the said flat has been mentioned as 460 sq.ft. The specific allegation of the Complainant is that the OP provided less area in comparison with that he undertook to provide. The OP defended the allegation stating that the Complainant herself had admitted in the letter addressed to the Officer-in-Charge of Sarsuna P.S. that she got a flat having area of 575 sq.ft. In course of argument, Ld. Advocate for the OP has submitted that in the Deed of Conveyance the flat area has been mentioned as 460 sq.ft. super built up area owing to request as well as instruction on part of the Complainant since she had dearth of fund for registration o f the said flat. Ld. Advocate for the OP has reiterated that the OP had provided promised area of the flat to the Complainant.
To substantiate such contention, the OP prayed for appointment of an Engineer Commissioner to measure the said flat to determine the flat area so that it would be evident whether there was anomaly regarding the area undertook to be delivered and the area actually delivered. On 1.8.2018 the Engineer Commissioner submitted his report which was accepted on 17.8.2018. On perusal of the said report it appears that no contrary view has been prevailed. Since Ld. Engineer Commissioner has submitted report stating that “….the perception about the justified possible definition of “Super built up area” may be revealed as covered area of one single unit a percentage of (Open space + Common Area) proportionately calculated on the basis of area of corresponding single unit.
Here carpet area is 412.73 sq.ft. and covered area is 468.26 sq.ft. The proportionate percentage of open space and common area to be added for arriving at the quantum of super built up area…………….”.
Ld. Engineer Commissioner also opined that super built up area might be calculated by adding 15% to 25% of covered area to that.
Therefore, adding 25% of the covered area we found that the OP delivered promised area to the Complainant. However, the OP claimed to have delivered the promised area to the Complainant and prayed for appointment of an Engineer Commissioner through this Forum to prove the same. Moreover, the Complainant did not prove anything contrary to that report. Relying upon the report of the Engineer Commissioner we found there is no anomaly between the promised area and the actual delivered area.
As regards excess payment it appears that no document has been filed so that it could have been evident therefrom that the Complainant made excess payment to the OP towards charges for registration of Deed of Conveyance and fees for Lawyer. As such, the prayer for refund of excess amount is not allowed.
In such view of the matter, we are of opinion that the Complainant has failed to substantiate her allegation.
In the result, the Consumer Complainant does not succeed.
Hence ordered, that CC/300/2017 is dismissed on contest.
