HON’BLE  MR. ASHIS KUMAR BASU, MEMBER 

Order No.35

Date:  24.11.2021

The record is put up for judgement.

1.) The dispute  in the present case arises out of complaint filed by the complainant under section 12 of the  Consumer Protection Act, 1986 ( hereinafter referred to as the Act )  in relation to deficiency in service and unfair trade practice on the part of the promoter for delivering incomplete flat with less area to the complainant without registration of deed of sale and completion certificate taking full amount of consideration money.

BRIEF FACTS

2.) Mrs. Krishna De Chowdhury, W/O Mr. Sri Aloke De Chowdhury, complainant in this case, intended to purchase a flatin her name for residential purpose for her family. Sri Sanjoy Burman, being a promoterand proprietor ofAstha Project at Hill View ( North), Asansol  P.S. Asansol ( South ), PIN-713304 and at AviskarJwellers, Raha Lane, Asansol-703301, opposite party in the instant case has been engaged in various  housing projects. As the opposite party/ promoter intended to sell self contained flat receiving advance/ booking money which was under construction by him in the name Gokuldham Residency at Upper Chelidanga, Burdwan, complainant proposed to book a flat on the third floor of Gokuldham measuring 896 sq.ft@ Rs.2330/- per sq.ft and it was accepted by the OP/developer in the month of September, 2016. Complainant paid to OP/developer Rs.100,000/- on 03.09.2016 as booking money. Complainant / homebuyer  claimed  she has paid Rs.2065000/-   to the OP/promoter as sale price of the booked flat apart from furtherpayment of  Rs. 100,000/- for installation of electricity and providing water supply. Hence the total payment was to the tune of Rs 21,65,000/- towards consideration money for the flat and installation of electricity and water supply. OP/ promoter on 05.03.2017 delivered  possession of the said flat at third floor of the housing project , namely Gokuldham Residency, Upper Chelidanga, Asansol, within Asansol Municipal Corporation, Dist : Paschim Bardhaman. Complainant alleged that she had received the flat with less area  and in incomplete condition without door and light. Complainant prepared two copies of  agreement for sale of the flat duly signed by her and handed over to OP /promoter on 17.04.2017 for execution of the agreement. Complainant alleged that OP did not execute the sale agreement on the plea it was not necessary to execute the agreement  as the flat in question would be conveyed to her name. At the time of booking it was settled that the area of the  said flat  would be 896 Sq.ft. but after receiving possession, it is found that area of the flat is 665.5 Sq.ft.

3) Complainant informed OP that he had delivered the flat in question measuring 665.5 sq.ft instead of 896 Sq.ft though he had received full consideration money for 896 Sq.ft.Complainant requested OP to measure the flat and convey the flat mentioning actual area  and the consideration money should be as per actual area of the said flat. She also claimed that completion certificate be given by the OP before  execution of registration of the flat.But OP/ promoter did not pay heed to her request. Complainant measured her flat with the help of an official of borough No. 5 of Asansol Municipal Corporation which was found to be 665.5 Sq.ft. as the covered area of the roof of the flat. The husband of the complainant wrote a letter to OP through speed post on 02.05.2018 that the area of the flat is 665.5 Sq.ft. instead of 896 sq.ft.  which had been measured by a official of  borough no. 5 of Asansol Municipal Corporation. Complainant also informed OP in the same letter to execute the registration of sale deed of the flat mentioning 665.5 sq.ft area and issue completion certificate along with refund to the tune of Rs. 5,35,900/- in the account of complainant for less area delivered,  otherwise she would take steps against OP as per rules. But the OP refused to accept the said letter. Prior to this letter, complainant’s husband wrote a letter to OP on 01.08.2017 that she had submitted two copies  signed agreement for execution containing the terms and conditions regarding the said flat which had not complied with and forcing her to execute the sale deed without giving completion certificate. In the same letter, it was pointed out that the OP insisting on registration of deed of conveyance mentioning area of the flat as 896 sq.ft. instead of actual area given 665.5 sq.ft without completion certificate which is deficiency of service.  Complainant also informed that due to non-execution of deed of sale she was not getting electric connection  in her name, moreover OP also demanding parking charges which are constructed over the water reservoir  and sanitary chambers at the cost of flat purchasers.  Though OP received the said letter dated 01.08.2017 but he took no steps to remove these irregularities . Husband of the complainant again  wrote two letters to OP on  02.05.2018  and 08.05.2018  but the later refused to accept them.In  the said letters complainant sought explanation why the OP insisting on execution of the deed of conveyance delivering flat no 1 having area 665.5 sq.ftinstead of 896 sq.ft without any completion certificate.

4 ) On 31.05.2018,  Mr. Umadas Mukherjee, Ld. Advocate on behalf of the  complainant, informed OP for deficiency of service regarding delivery of flat no 1 third flor of Gokuldham and demanded Rs. 5,35,900/- along with interest @ 12%  from him as OP realized excess amount  by delivering the  flat having less area thanthat of the area at the time of booking and the dispute is not settled, proper steps would be taken before appropriate forum to redress the grievance. But the said letter could not be served upon the OP as it was returned to the Ld. Advocate  as the OP was not available.Complainant also claimed Rs.4,50,000/- from OP as compensation for negligence, mental agony and harassment suffered by her due to non-execution of  registeredsale deed along with completion certificate. Apart from this she claimed another Rs.50,000/- for electricity and compensation for non- compliance of statutory requirement.

5 ) OP/ PROMOTER stated that the claim of the complainant for booking of the Flat no.1, third floor of Gokuldham  Residency, with area 896 sq.ft @ 2330/- was not true. OP also stated that  there was no  sale agreement for  delivery of flat with 896 sq.ft @ 2330/- per sq.ft and the  consideration money for the said flat had been settled at Rs. 24,00,000/- and complainant shall bear the cost of registration and service tax as per norms. It is also agreed that after selling the flat  and after assessment of Holding Tax by Asansol Municipal Corporation water connection would be provided and complainant had to bear the cost. OP proposed to make a written agreement containing all the  terms and condition regarding delivery of the flat. But Mr. Aloke De Chowdhury, husband of the complainant told that being an advocate  himself he would draft and prepare  the written agreement for specific terms and conditions but he did not prepare the sameon the plea that oral agreement was sufficient for gentlemen agreement. OP also stated that he received Rs. 21,65,000/-from  complainant which included service tax where the consideration money was Rs.2400,000/-. Out of Rs. 2165000/-, OP paid Rs. 97,525/- as service tax  on behalf of complainant. OP also claimed that complainant received the flat in  complete condition on 05.03.2017  and he handed over completion certificate to complainant at the time of giving the delivery of the flat. Possession certificate also was given to complainant before  delivery of the flat. Hence  complainant is not entitled to have  refund of Rs 535,900.  OP claimed  Rs. 3,32,525/-from complainant as the rest portion of consideration money along with G.S.T. and  cost of execution of registration  of sale deed .

Key Points

6 ) If we delve into the matter, it is found that the most striking feature of this case is there is no written agreement between complainant / homebuyer  and OP/ promoter regarding booking/ purchasing a self content flat at Flat No. F-3/1, third floor, Gokuldham Residency, Upper Chelidanga, P.S. Asansol ( South ), Dist: Paschim Bardhaman though the complainant paid Rs. 100,000/-on 03.09.2016 to OP/Promoter as booking money to purchase the above mentioned flat. In absence of any executed written agreement for purchasing the flat both the parties raised their claim on their own way to fulfill their interest, but on several occasions they could not submit bonafide documents in support of their claims. Purchasing of a flat involving huge amount money without any written agreement containing terms and condition and specification is very much unusual. Complainant  made subsequent payments to OP totaling Rs 2065000/- as consideration money for the said flat. As per written argument Complainant also paid OP another Rs. 100,000/- separately for installation of electricity and water tank. Hence total payment made by the complainant is to the tune of Rs. 21,65,000/-. In fact , both the parties agreed that total payment stood at Rs. 21,65,000/-. Complainant stated that the said self contained flat has been allotted to her by OP/ promoter with area 896 sq.ft @ 2330 per sq.ft and Rs. 2065,000/- was the consideration money of the flat in dispute. There is no dispute that after receiving Rs. 21,65,000/- OP delivered the flat to complainant on 05.03.2017.In written argument, complainant stated she prepared two copies of agreement for sale containing stipulated terms and conditions putting her signature and handed over the same to OP on 17.04.2017 for execution. But OP did not execute the agreement on the plea that execution was not needed  as  flat  would be conveyed. On the other hand, OP/ Promoter in his evidence, stated that the consideration money for the said flat was settled at Rs. 24,00,000/- and the claim of complainant that consideration money was 2065000/- for 896 sq.ft @ 2330/- per sq.ft. was not true. OP claimed the balance  amount of the consideration money to the tune of Rs.332,525/- along with G.S.T. But OP could not disclose what was area of the flat in question to be delivered  and what was the rate per  sq.ft.OP also added that out of total payment received of Rs. 21,65,000/-, he paid Rs.97,525/- as service tax on behalf of complainant.  But he could not submit any documents on payment of service tax for Rs. 97,525/-.  Regarding execution of sale agreement, OP stated that he had intended to prepare the said agreement, but  complainant’s husband, being an advocate told him that he would prepare himself the same  but ultimately he did not prepare the agreement. Complainant could not explain why she after getting the possession of the flat on 05.03.2017,  handed over the prepared sale agreement to OP/promoter on 17.04.2017 for execution when she had already got the possession of the flat. Here also complainant could not produce the copy of the said prepared agreement which is not finally executed in support of her claim.

7 ) Apperantly,  after getting the possession, complainant found that the area of the flat is 665.5 sq.ft. in place of stipulated area 896 sq.ft. Complainant could not categorically stated what she actually meant by mentioning flat of 896 sq.ft, is it  super-built area or covered area of the roof or carpet area though she stated that the  flat  in dispute flatwas 665.5 sq.ft covered area of the roof.  Complainant demanded refund of Rs. 5,35,900/-  along with interest @ 12% from OP for delivering less area of the flat. To get refund, the exact less area  received from OP must be ascertained correctly. As per written argument, complainant conducted measurement of the flat  by an official of borough no. 5 of Asansol  Municipal Corporation showing covered area of the roof of the flat as  665.5 sq.ft  and a plan of the said covered  area of the roof has been submitted in support of her claim. But complainant did not disclose the name of the  borough official who made the said measurement and it is also a big question whether that official was competent enough for such type of  measurement and what was his official status. The plan does not contain any official or personal seal to recognize its bonafideness.  Mere a plan of the roof of the flat bearing  a signature which is illegible cannot  be accepted in the instant case as it is not authenticated properly by any competent person. In this connection, OP submitted the photo copy of ‘ reply to information sought u/s 6(1) of R.T.I. Act  2005 through his ld.advocate which is very relevant in the instant case. The declaration given by Addl. District Sub- Register, Asansol, Dist; Paschim Bardhaman, Govt. of West Bengal, dated 10.09.2018  bearing proper official seal and signature is given below,

“ Registration of any self- contained residential flat can be registered without mentioning the super built area in the document to be transferred in favour any buyer, is possible. However in that case, the query generated in the present e-nothikaran system will automatically add 20%  of covered area/ mentioned in the deed, and the same will be reflected in the Major information of the deed after completion of the deed.”

Apperantly complainant tried several times to communicate with OP through letters to ventilate her grievance and OP tried to avoid them but she did not lodge any FIR against OP at local police station regarding this matter. Complainant could measure the flat by a licensed competent person  in presence of OP or through a court of law. On the  other hand OP/ Promoter  stated the consideration money of the flat in question was Rs. 24,00,000/-  not Rs.2065000/- as claimed by complainant and price of the flat @ 2330/- per sq.ft for 896 sq.ft is not correct. OP could not produce any document which can prove that the price of the flat has been settled at 24,00,000/-. Even he could not declare what was the area of the flat to be delivered to complainant. OP  claimed balance amount of the consideration money to the tune of Rs. 3,32,525/- from complainant. In reality, promoters/ developers  give the possession of the flats to homebuyers  after receiving the full consideration money.   OP gives the possession of the flat to complainant on 05.03.2017 by receiving Rs.21,65,000/- and  he claims further Rs.332525/- as balance amount.  From such circumstances, we are of the view that it would be a logical conclusion that OP delivered the flat after receiving full amount of consideration money. Hence OP is not entitled to have further Rs.332525/-from complainant as a balance of consideration money.

8 ) In the brief notes of arguments, complainant contended that OP/ Promoter insisted her on registration of deed of conveyance  without giving completion certificate for which she has been suffering in various ways specially Municipal water connection and installation of electricity. Complainant produced a letter from W.B State Electricity Distribution Company Limited ( WBSEDCL ) dated  17.07.2018, addressed to her husband where WBSEDCL informed that ‘ Land ownership ( purchase deed) documents are needed for effecting New Service Connection.’  Complainant claimed apart from making payment of Rs  2065000/-as consideration money, she paid another Rs. 100000/-to OP for water and installation of electricity.  OP claimed  that out of total amount he received  i.e Rs. 2165000/-he had paid Rs.97525/- as service tax on behalf of Complainant but he could not produce any document of payment of service tax . The above facts and figures proves OP  has never paid service tax  on behalf on behalf of Complainant.OP also claimed that he has handed over  Completion  Certificate to Complainant  at the time of delivering flat which  was denied by complainant. In that case OP might give another copy of completion Certificate to complainant.

9) We have carefully considered the submission made on behalf of  the parties and perused the materials on record.  Complainant claimed refund for Rs.535900/- and  Rs.4,50,000/- for compensation for negligence and mental agony . As complainant affirms claim in support of her  case ,   the doctrine of onus probandi shall lie on  her which is sacrosanct. The expression  ‘ compensation ‘ is a comprehensive term which includes a claimfor the damages. The claim of compensation should be fair and it should be based on  reasonable grounds on the basis of evidence produced on record. By applying the well settled principles, the compensation should be adequate and fair. It is not extended to be a bonanza,largesse or source of profit.If we crystallize out thoughts , we shall find the complainant booked a flat by giving Rs. 100000/-to OP/ Promoter on 03.09.2016 and made subsequent payment but there was no executed written agreement for purchase between the two parties though the husband of complainant is stated to be  an advocate. Complainant got the possession of the flat on 05.03.2017 but proposed to OP on 17.04.2017 for executing the purchase agreement.   No  survey passed  commissioner was appointed at the instance of  either of the parties for assessing  or surveying  actual  area of the schedule flat through this Commission. It becomes increasingly difficult on our part to determine the actual area of the schedule  flat either carpet or covered in absence of any survey report.  Both parties have conflicting claims regarding the area of schedule flat. We have no other option or alternative  to think that the complainant took possession in the schedule  flat as agreed verbally in between  them  and OP received  the full consideration amount in lieu of the schedule flat.Complainant filed a plan of covered area of roof of the flat showing 665.5 sq.ft and demanded refund of Rs.535900/- for delivery of less area .  It has been discussed earlier that the said  plan of area of the covered  roof proved nothing conclusively in support of her claim as plan of the covered area was not drawn in presence of any competent person or through a court of law.Going through all documents and circumstances of the case meticulously, we are of the opinion that complainant completely fails to prove that OP handed over the flat in dispute with area of 665.5 sq.ft instead of 896 sq.ft. as the stipulation for area of 896 sq.ft to be delivered has no basis. Hence there is no deficiency of service and unfair trade practice on the part of OP/ Promoter in this regard. Hence complainant is not entitled to have any refund  from OP.

10 )  Going through facts and figures of the case it is revealed that OP could not prove that he has paid 97925/-as service tax  on behalf of complainant out of total amount received Rs.21,65,000/- . OP handed over the flat to complainant/ home buyer on 05.03.2017  after receiving Rs. 2165000/-  which proves that OP received full amount of consideration money.  Hence OP is not entitled to have Rs. 332525/-from  complainant as balance amount of consideration money.

11. )  It is fact that complainant has not obtained water  and electricity connection as execution of sale deed has not been made and complainant has not received completion certificate from OP. OP admitted  that he had received completion certificate from Asansol Municipal Corporation. Hence he should handover a copy of completion certificate to OP .   As OP got full consideration money including Rs. 100000/- for water and Electric installation, he should make arrangement for execution of Registered deed of conveyance without any delay so that complainant does not have any difficulty for water  and electric connection.

ORDERED

 The instant complaint be and the same is decreed in part on contest without cost.

OP/Promoter is directed to hand over completion certificate to complainant within 90 days from the date of this judgement.

 OP/ Promoter is directed to provide water connection to the complainant within the said stipulated period, apart from litigation cost of Rs. 20,000/- (Twenty thousand  only).

 OP/Promoter is also directed  to execute and  register  deed of sale within 90 days from the date of this judgement in favour of the complainant. Complainant has to bear all the necessary registration charges including stamp duty. If OP fails to execute and register the sale deed of the flat within the stipulated period, in that case the complainant shall be entitled to take recourse to execution  as mandated under section 27 of Consumer Protection Act 1986(Act No.68 of 1986) for satisfaction of the decree through this Commission  and for that purpose the complainant has to bear all costs of service charges, registration charges including execution and registration of Sale Deed and the complainant has also to pay the charges for deputing an officer of this Commission for the purpose of registration of sale deed,  before the registering authority.

We make no order as to cost.

 Let a copy of judgement be supplied to the parties free of cost.