State Consumer Disputes Redressal Commission
M/S. Shrachi Leathertex Pvt. Ltd. vs Sk. Qumru Alam on 29 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1106/2014 (Arisen out of Order Dated 13/03/2014 in Case No. CC/428/2010 of District Kolkata-II) 1. M/s. Shrachi Leathertex Pvt. Ltd. Todi Mansion, P-15, India Exchange Place Extension, Kolkata-700 073 & also at Shrachi Tower, 686, Anandapur, E.M. Bye Pass, P.S. Anandapur, Kolkata-700 107. ...........Appellant(s) Versus 1. Sk. Qumru Alam S/o Late Md. Sirajuddin, Flat no.5E, 5th Floor, 23, Marquis Street, P.S. New Market, Kolkata -700 016. 2. East India Charitable Trust 51, Chowringhee Road, Kolkata. 3. Kolkata Municipal Corporation 5, S.N. Banerjee Road, P.S. Taltola, Kolkata - 700 013. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Barun Prasad Mr. Subrata Mondal Mr. Sovanlal Bera , Advocate For the Respondent: Mr. Imtiaz Belal, Advocate Ms. Rama Acharya, Advocate ORDER Date of Hearing: 15th Day of September, 2015 Date of Judgment: Tuesday, 29th September, 2015 JUDGMENT
The instant appeal u/s. 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') is at the instance of Opposite Party No.1, M/s. Shrachi Leathertechs Pvt. Ltd. to impeach Judgment/Final Order dated 13.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (In short, 'DCDRF') in Consumer Complaint No.428/2010.
The Respondent No.1 herein being Complainant initiated the consumer complaint u/s. 12 of the Act with an allegation that an agreement was arrived at in between him and Opposite Party No.1 (Developer) to purchase a flat being No.5E (Previously numbered as '6') in the 5th Floor lying and situated at premises No.23, Marquis Street, P.S. New Market, Kolkata-700016 measuring about super-built area of 1537 sq. ft. at a consideration amount of Rs.1300/- per sq. ft and Rs.75,000/- for a covered garage measuring about 150 sq. ft. on the ground floor totaling an amount being Rs.20,73,100/-. In accordance with the said agreement the Complainant had paid almost the entire amount of consideration price had been paid by cheque save and except the balance due amount of Rs.71,785/- including the due amount of Rs.51,785/- for flat and Rs.20,000/- for covered garage. On 01.08.2005 Opposite Party No.1 had delivered the possession to the Petitioner. However, after taking possession Complainant noticed scanty water supply and at times no water supply in the said building and also found with random various occasion merry making is allowed happened in roof of the building by outsiders in connivance of the security guards. However, a serious allegation has been made with regard to the measurement of the flat and it has been alleged that the flat is measuring of an area of 1050 sq. ft. instead of 1537 sq. ft. super-built area and as such entitled to get refund from the Opposite Parties after actual measurement of the same by survey passed Engineer. Hence, the complaint was initiated with the following prayers, viz. - (a) Opposite Parties be directed to take steps to register conveyance on the actual measurement of the flat; (b) Opposite Parties be directed to refund or adjust the amount of Rs.2,00,000/- as complained by the Petitioner in repairing roof leakage; (c) Opposite Parties be directed to pay Rs.1,00,000/- as costs of mental agony, pain and harassment along with 12 per cent interest; (d) litigation costs, etc. The Opposite Party No.1 by filing written version has disputed the claim. It has been specifically stated on behalf of the contesting Opposite Party that they have complied with the terms and conditions agreed between the parties and provided all the facilities to the Complainants as well as residents of the said premises.
Having heard the Ld. Advocate for the respective parties and on the basis of materials on record the Ld. DCDRF by the impugned Judgment/Final Order allowed the complaint on contest against Opposite Party No.1 and dismissed against Opposite Party No.2 without any costs directing Opposite Party No.1 to take up the steps for measuring the flat by an Architect as mentioned in the agreement for sale and in this regard both the parties were directed to take steps within two months from the date of the order which prompted the Opposite Party No.1 to prefer this appeal.
The point arises for consideration in this appeal as to whether or not the Ld. DCDRF was justified in passing the order impugned.
On a close scrutiny of the materials on record and upon hearing Ld. Advocates appearing for respective parties it emerges that an agreement was entered into by and between the Complainant and Opposite Party No.1 (Developer) in respect of purchase of a flat being 5E (Previously, numbered as flat No.6) in the 5th floor measuring about super built-up area of 1537 sq. ft. and a garage measuring about 150 sq. ft. on the ground floor lying and situated at premises No.23, Marquis Street, P.S. New Market, Kolkata-700016. It was agreed that the consideration amount would be Rs.1300/- per sq. ft. for the flat and Rs.75,000/- for a covered garage totaling an amount of Rs.20,73,100/-. It remains undisputed Complainant has paid almost the entire amount and an amount of Rs.51,785/- for flat and Rs.20,000/- for the garage aggregating an amount of Rs.71,785/- is due and payable by the Complainant. It also remains undisputed that the Complainant was delivered the possession of the said flat on 01.08.2005.
Now, the Complainant has alleged about the deficiency of service on the part of the Opposite Parties like supply of scanty water or no water supply and visitors from outside including the area creating a nuisance in the roof of the building. However, the most serious allegation has been levelled by the Complainant with regard to measurement of the flat. According to Complainant the area of the flat is 1050 sq. ft. instead of 1537 sq. ft. super built-up area. It is also specifically alleges by the Complainant that the said flat is required to be measured by a survey passed Engineer and if this being done Complainant would get refund money from the Opposite Parties as he paid Rs.1300/- per sq. ft. as per terms of the agreement. In the written version the Opposite Party No.1 has categorically denied the same.
In this regard, clause 12.5 of the agreement arrived at by and between the parties is very important. In the said clause it has been provided - 'in case upon completion of construction of the said unit and the Housing Complex the super built-up area in respect of the said unit exceeds the area specified therein the purchaser shall have to make payment of additional amount to the developer and if the area becomes less than the area allotted to the said purchaser the developer shall refund the amount proportionately and differential area to the said purchaser and in this regard the certificate of the Architect as regards super built-up area of the complex shall be final and conclusive and none of the parties shall be entitled to raise any dispute with regard thereto.' The facts and circumstances of the case clearly indicate that the measurement of the flat in question can only resolve the dispute between the parties because it is the Complainant who has specifically alleged that instead of 1537 sq. ft. super built-up area he has been provided with 1044 sq. ft. super built-up area. Since the rate of flat is Rs.1300/- per sq. ft. such a huge difference cannot be resolved without appointing of an Engineer Commissioner. The Complainant in the petition of complaint has prayed for a relief for actual measurement of the area of the flat which in turn indicates that unless Engineer Commissioner is appointed there is hardly any scope to resolve the dispute between the parties. What we have noticed that the Ld. DCDRF in an interlocutory order has allowed the prayer for measurement of the flat in question by appointing an Architect, M/s. A. Chatterjee and Associate as Commissioner for the purpose of, - (1) taking measurement of the flat of the Complainant wall to wall; (2) taking measurement of common spaces; (3) reporting covered area as super built-up area as per standard of Kolkata Municipal Corporation and (4) note and reporting such other facts as may be appointed by the parties. However, at the time of delivery of Judgment the Ld. DCDRF did not consider that aspect of the matter and passed the order which appears to be self-contradictory. We fell that Ld. DCDRF should not observe - 'after complying judicial mind and conscience and also the entire consideration we have gathered that all other allegations has made by the Complainant are false and fabricated.' Ld. DCDRF also proceeded to observe the act of the Complainant is an act of dishonest consumer appears to us totally unacceptable. We cannot restrain our temptation to observe that judicial restraint is a virtue. In this regard, observation of Mr. Justice Cardozo of U.S. Supreme Court is very much pertinent and relevant - 'The Judge not to innovate at pleasure. He is not knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw inspiration from settled principles. He is not to yield to spasmodic sentiment, to vague an unregulated benevolence. He is to exercise discretion informed by tradition, methodised by analogy, disciplined by system and subordinated to promotional necessity of the order in social life.' Herein our case, it can evident that there was a clear agreement by and between parties that in case of any disputes with regard to measurement of the flat and if it is found that the purchaser has been allotted an area less than the area as agreed upon the developer shall refund the amount proportionately for the said differential area, the claim of the Complainant as a consumer against service provider should not be taken in a casual manner.
The materials on record reveals that after the impugned order the Complainant has made several communications through his Advocate and ultimately the Appellant has agreed to appoint one Mr. S. K. Moniramka, Architect, C/o, Moniramka Associates to carry out the measurement of the flat in question. Accordingly, appeal has become otiose in as much as the Appellant in compliance with the order was going to appoint an Architect for measurement of the flat in question and Ld. Advocate for the Respondent has agreed to the same.
On evaluation of the materials on record and after due consideration to submissions advanced by the Ld. Advocates appearing for the parties we are of the view that the impugned Judgment suffers from uncertainty and it is not executable in the eye of law and as such we are constrained to interfere with the order impugned.
For the reasons aforesaid, the instant appeal is allowed on contest against Respondent No.1 and ex-parte against Respondent Nos. 2&3 but without any order as to costs.
The Judgment/Final Order passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in consumer complaint No.428/2010 is hereby set aside.
However, since the instant consumer complaint is pending for about long 5 years, we do not like to remand back the case to the Ld. DCDRF and propose to dispose of the appeal by treating evidence to be forthcoming with regard to appointment of Engineer Commissioner as an additional evidence.
Mr. S. K. Moniramka, Architect, C/0, Moniramka Associates of 74B, A.J.C. Bose Road, Kolkata - 700016 is appointed as Architect to carry out the measurement of the flat No.5E (Previously, numbered as flat No.6) in the 5th floor lying and situated at premises No.23, Marquis Street, P.S. New Market, Kolkata - 700016 and to submit a report within 60 days from the date of receipt of writ. The Complainant shall make payment of costs of Rs.2,500/- in favour of architect by hand or pay order and to show receipt to that effect within 7 (seven) days before the registry of this Commission. On showing such receipt writ shall be issued accordingly.
To 04.01.2016 for awaiting report of the Engineer Commissioner and further order. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER