The case of the complainant in a nutshell is that the opposite parties being developer constructed a multi storied building at Tarakeswar, Municipal Bus Terminal-I, Tarakeswar, on a land measuring about 42 decimals , Mouza - Bhata, R. S. Plot no. 681, L. R. Plot no.1104 and R. S. Plot no.682, L. R. Plot no.1105. L. R. Khatian no.3678, J. L. no.21, under P. S. Tarakeswar, District – Hooghly. The complainant entered into an Agreement for Sale dated 14.11.2013 with Tarakeswar Municipality and opposite party no.1 to purchase a flat being Flat no.’E’ on the 5th floor having super built up area of 732 sq. ft. at consideration of Rs.19,76,400/- (Rupees nineteen lakh seventy six thousand four hundred) only.
According to the complainant the carpet area of the said flat was 489 sq. ft. out of super built up area 720 sq. ft. The opposite party no.1 deducted 20 % of the super built up area for common area of the building. Therefore, the complainant felt cheated as he has paid consideration for super built up area.
On 06.02.2021 they had a meeting at Tarakeswar Heights and the opposite parties affirmed that they will accept total consideration of the flat a sum of Rs.17,30,700/- (Rupees seventeen lakh thirty thousand seven hundred) only which will include the cost of the super built up area. But at the time of execution of Sale Deed, the opposite parties charged consideration amount of Rs.19,44,000/- (Rupees nineteen lakh forty four thousand) only from the complainant and the complainant paid a sum of Rs.19,76,000/- (Rupees nineteen lakh seventy six thousand) only on instalments and also by way of loan. Therefore, the complainant is entitled to get a refund of his excess payment amounting to Rs.2,45,300/- (Rupees two lakh forty five thousand) only from the opposite parties. It is also alleged that the opposite parties have not delivered the possession of the flat in habitable condition which is clearly deficiency in service. The opposite parties are also claiming service tax 4 % and GST 5 % which is illegal and unjust as the complainant booked the flat in the year 2013 and at relevant point of time the question of GST and service tax was not applicable. The complainant prays for refund of the excessive amount paid by him to the tune of Rs.2,45,300/- (Rupees two lakh forty five thousand three hundred) only with interest, Rs.70,000/- (Rupees seventy thousand) only for deficiency in service due to difference of standard of service, Rs.60,000/- (Rupees sixty thousand) only for incomplete work and unfair trade practice, Rs.60,000/- (Rupees sixty thousand) only for mental agony and Rs.60,000/- (Rupees sixty thousand) only as litigation cost.
It appears from the record that notice was duly served upon both the opposite parties. In spite of service of notice none of the opposite parties appeared in the case. So, the case was fixed ex-pate against both the opposite parties.
The complainant Sagar Molla submitted his evidence on affidavit along with photo copies of documents.
The photo copy of Agreement for Sale dated 14.11.2023 is marked document-1, photo copy of money receipts dated 24.09.2013, 25.09.2013, 28.10.2013, 14.11.2013 and 14.03.2015 are collectively marked document -2 series. The photo copy of Deed of Sale dated 30.07.2019 is marked document-3, photo copy of arrangement letter of State Bank of India for Home Loan is marked document-4 and photo copies of some photographs are marked document-5 series.
It appears from Agreement for Sale (document-1) and Deed of conveyance dated 30.07.2019 (document-3) that Tarakeswar Municipality, Hooghly is the owner of the landed property and opposite parties are the developers. The complainant entered into an Agreement for Sale with Tarakeswar Municipality and opposite parties on 14.11.2013 to purchase a flat being flat no.’E’ on the fifth floor having super built up area of 732 sq. ft. be the same a little more or less consisting of three bed rooms, one kitchen, one dining room, two toilet and one balcony with marble floor and together with proportionate undivided share of land beneath the said building and including all rights of easement and quasi-easement with all amenities and facilities attach thereto at consideration of Rs.19,76,400/- (Rupees nineteen lakh seventy six thousand four hundred) only.
The Deed of Sale dated 30.07.2019 (document-3) reveals that the Tarakeswar Municipality and the opposite party executed the Deed of Conveyance in favour of the complainant in respect of the aforementioned flat and delivered possession of the same to the complainant. In the said Deed of Sale dated 30.07.2019 it is mentioned that the opposite parties on the basis of sanctioned building plan being no.6813682 sanctioned by the Tarakeswar Municipality on 27.07.2012 had constructed a G+9 commercial multi storied building which is known as ‘Tarakeswar Heights’. The purchaser i.e. the complainant being satisfied with the construction of the flat mentioned in ‘A’ schedule property in accordance with the plan and specification agreed to purchase a flat mentioned in ‘B’ schedule for a total consideration of Rs.19,44,000/- (Rupees nineteen lakh forty four thousand) only, and paid the said amount. The details of payment is mentioned in the memo of consideration annexed with the Deed. It is also mentioned that after such payment the complainant has been put into possession of the flat mentioned in the ‘B’ schedule of the Deed of Sale.
From the averment of the Agreement for Sale (document-1) as well as the Deed of Sale (document-3) it appear that the complainant agreed to pay the consideration amount for super built up area of the flat. It has not been alleged by the complainant that he has not received any completion certificate of the building from the opposite parties. We also find that the owner of the land i.e. Tarakeswar Municipality has not been made a party to the case. In view of section 92 of the Evidence Act the allegation of the complainant that the opposite party delivered the flat to the complainant not in habitable condition cannot be accepted as the Deed of Sale (document-3) clearly reveals that after being satisfied regarding the construction of the flat and building, the complainant paid the total consideration amount to the opposite parties.
Having considered the facts mentioned above it is crystal clear that after execution of sale deed and receiving possession of the flat mentioned in the Sale Deed (document-3), the brevity of contract between the parties with regard to Agreement for Sale (document-1) comes to an end. If the complainant has paid any excess amount as consideration of the flat to the opposite parties he can claim return of the same by filing a money suit before appropriate Court having jurisdiction.
The complainant has not been able to proof any Deficiency of Service caused by the opposite parties.
In the light of the made above, we are of the opinion that the complainant miserably failed to proof his case by submitting any cogent, convincing and/or reliable evidence.
Therefore, the complainant is not entitled to get any relief as prayed.
The case fails.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed, ex-parte without cost.
