Date of filing :22.5.2017

Judgment : Dt.28.3.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of   C.P.Act, 1986 by Mrs. Rehana Khan alleging deficiency in service on the part of the opposite parties namely (1) Trishakti Construction a partnership firm, (2) Sk. Sanjary, (3) Charu Gazi, (4) Shri Dilip Nandy and (5) Sri Koushik Ganguly.

            Case of the Complainant in brief is that the Complainant has entered into an agreement for sale on 17.5.2016 with the OP in respect of a flat being No.7 on the 2^nd floor (North Eastern side) in the building named Gitanjali Apartment in the premises No.22, Kalipur Kancha Road, KMC, Ward No.122, Borough No.XIII Post and P.S.-Haridevpur, Kolkata-700 082, measuring 650 sq.ft. super built up area with undivided proportionate share of land of the premises will all sanitary, electrical, water connections, fittings and fixtures along with common area at a consideration of Rs.15,00,000/-. The Complainant has stated that during the period of enquiry in respect of the title of the said flat it appears that the area of the flat is less than 650 sq.ft. and thereafter having measurement the said flat on 7.4.2017 with help of Mr.Debashish Guha LBS (KMC) of 33/3B, Vidyasagar Colony, Kolkata-700 063, it appears that the area of the flat is of 440 sq.ft. and in addition to 20% of the covered area it becomes 528 sq.ft. as super built up area. The Complainant has stated he has already paid Rs.11,00,000/- to the OP Developer towards consideration of the said flat and in ready to pay the balance amount of consideration for having possession of 650 sq.ft. super built up area of the flat in question as promised by the OPs otherwise she will pay for the actual area of the flat. It is further stated by the Complainant that on 10.4.2017 she requested to OPs to deliver possession of the said flat and register the same to which the OPs did not pay any heed at all and, therefore, she has served an Advocate’s letter dt.12.4.2017 requesting the OPs to deliver possession and execute registration of the said flat in favour of her within 15 days but that too yields no fruitful result. Hence the Complainant has prayed for direction upon the OPs to deliver possession after receiving consideration for the actual flat area and register the same, to pay Rs.1,00,000/- towards damage and to pay cost of the litigation.

            The Complainant has annexed photocopies of Agreement for sale dt.17.5.2016, money receipts dt.17.5.2016, 17.8.2016, 8.12.2016, 20.2.2017, report of the LBS dt.7.4.2017, Advocate’s letter dt.12.4.2017.

            The OP No.1 to 4 contested the case by filing written version denying and disputing all the material allegations made out in the petition of complaint stating inter alia, that they have entered into an agreement for sale with the Complainant in respect of a flat being No.7 on the 2^nd floor (North Eastern side) in the building named Gitanjali Apartment in the premises No.22, Kalipur Kancha Road, KMC, Ward No.122, Borough No.XIII Post and P.S.-Haridevpur, Kolkata-700 082 having an area of 650 sq.ft. at a consideration of Rs.15,00,000/-. It is stated by the contesting OPs  that they have delivered possession of the flat in question to the Complainant in good faith after receiving Rs.2,50,000/- only from her since she was in dire necessity of an accommodation. The contesting OPs have also stated that they have fixed the price on the basis of an unit of accommodation and not on the basis of price of per sq.ft. but on the same of registration they mentioned in the agreement for sale super built up area or 650 sq.ft. It is also stated by the contesting OPs that had they fixed the consideration amount on the basis of price of per sq.ft., the total consideration amount  for 650 sq.ft. would have been as Rs.16,20,000/-. The contesting OPs have further stated that they are ready and willing to execute the registration of deed of conveyance in respect of the property in question in favour of the Complainant after receiving the balance consideration amount as per market price to be assessed by the registering authority Govt. of West Bengal. It is also mentioned that receiving possession of the flat in question she neither paid any occupational charges nor did pay any maintenance charges or corporation tax although as per provision of clause No.12 in page 12 of said agreement she was supposed to have paid the same after receiving possession.

            In course of argument, Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint. Ld. Advocate on behalf of the OP submitted that possession o f the said flat has been handed over to the Complainant in due course of time on as is where is basis. Regarding registration of Deed Ld. Advocate for the OPs submits that the Complainant never sent any Draft Deed of Conveyance to the OP to execute registration of the Deed of Conveyance. Ld. Advocate on behalf of OP relied upon Section 55(1)(d) of Transfer of Property Act.

            Therefore, there is no deficiency in providing service on the part of the OPs.

            Points for determination

1. Whether there is deficiency in service on the part of the OPs as alleged?
2. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Pont Nos.1 & 2

Both the points are taken up together for comprehensive discussion and decision.

Admittedly, the Complainant entered into an agreement for sale on 17.5.2016 with the OPs for purchasing a flat being No.7 on 2^nd floor North Eastern side of a proposed building named Gitanjali Apartment within the premises No.22, Kalipur Kancha Road, KMC, Ward No.122, Borough No.XIII Post and P.S.-Haridevpur, Kolkata-700 082 at a consideration of Rs.15,00,000/-. The Complainant has claimed that by virtue of the said agreement for sale the OPs agreed to deliver a flat having super built up area of 650 sq.ft.

            The Complainant has specifically alleged that having measured the said flat by an LBS namely Debashish Guha she found the actual area of the flat is 440 sq.ft. and adding 20% of the said area, it came to 528 sq.ft. as super built up area. The Complainant has specifically submitted that she is ready to pay the consideration amount on the basis of the actual area of the said flat and accordingly has prayed for direction upon the OPs to deliver possession of the said flat to her and execute the registration of the deed of conveyance in favour of her and also to pay Rs.1,00,000/- towards damages and cost of litigation.

            As regards the area of the said flat the contesting OPs submitted that they have already delivered possession of the said flat on the basis of ‘as is where is’ and the Complainant has received the same but afterwards she raised such issue of shortfall of area.

On perusal of the said agreement, it appears that the parties agreed to transfer a flat having area of 650 sq.ft. on the 2^nd floor North Eastern side of a building to be constructed by the OP Developer.

The contesting OPs in the written version mentioned that they have inserted the said area of the flat as 650 sq.ft. super built up area only for sake of registration of the said flat. However, such contention made by the OPs has not been substantiated in any way. It is evident from the said agreement that the OPs agreed to deliver a flat having super built up area of 650 sq.ft. and, therefore, they cannot resile therefrom.

As regards the issue of delivery of possession, the Complainant in her petition of complaint and evidence on affidavit has stated by swearing affidavit on oath that possession of the said flat in question has not been delivered to her although in reply to question No.6 as put by the OPs towards cross examination she admitted that he has got possession of the said flat, and, further, in reply on the question No.8 as to cross examination she admitted that she has already got electric connection in her name to the said flat. This admission on the part of the Complainant clearly show that the allegation made by the Complainant regarding non-delivery of possession of the flat in question by swearing affidavit is not true at all.

Under such observation, we hold that the Complainant has not come before this Forum with clean hand and, therefore, no relief can be granted to her

However, considering the hefty amount spent by the Complainant for her own accommodation we just give the direction to the OPs to execute and register the deed of conveyance in respect of the flat in question after receiving balance amount of consideration Rs.4,00,000/- from the Complainant within one month from the date of receiving of the balance consideration amount of Rs.4,00,000/-.

Both points are decided accordingly.

            Hence,

ordered

            That CC/284/2017 is allowed in part on contest against OP Nos.1 to 4 without cost..

            The OP Nos.1 to 4 are directed to execute registration of Deed of Conveyance in respect of the said flat in favour of the Complainant within one month after receiving balance consideration amount of Rs.4,00,000/- from the Complainant.