State Consumer Disputes Redressal Commission
Sri Jyoti Prakash Ganguly vs Sri Samrat Ghosh & Ors. on 25 October, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1020/2018 ( Date of Filing : 31 Dec 2018 ) (Arisen out of Order Dated 03/12/2018 in Case No. Complaint Case No. CC/402/2014 of District South 24 Parganas) 1. Sri Jyoti Prakash Ganguly S/o Kalidas Ganguly, 148A, Parnasree Pally Road, 1st Floor, Kolkata - 60, P.S. Parnasree, Dist. South 24 Pgs. ...........Appellant(s) Versus 1. Sri Samrat Ghosh & Ors. S/o Lt. Sukesh Ranjan Ghosh, 148A, Parnasree Pally Road, 1st Floor, Kolkata - 60, P.S. Parnasree, Dist. South 24 Pgs. 2. Samudra Ghosh S/o Lt. Sukesh Ranjan Ghosh, 148A, Parnasree Pally Road, 1st Floor, Kolkata - 60, P.S. Parnasree, Dist. South 24 Pgs. 3. Smt. Shila Ghosh W/o Lt. Sukesh Ranjan Ghosh, 148A, Parnasree Pally Road, 1st Floor, Kolkata - 60, P.S. Parnasree, Dist. South 24 Pgs. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Appellant: Mr. Avijit Gope, Ms. Mary Rani Das, Ms. Paramita Adhikary, Advocate For the Respondent: Ms. Pallabi Dutta, Advocate Ms. Pallabi Dutta, Advocate Ms. Pallabi Dutta, Advocate Dated : 25 Oct 2019 Final Order / Judgement MRS. SAMIKSHA BHATTACHARYA, MEMBER
This Appeal has been filed by the Complainants against the sole Respondent / OP against the judgment /final order dated 03.12.2018 passed by Ld. DCDRF. Baruipur, South 24 Parganas, in CC Case No. 402 of 2018. Initially the Instant Case was decreed on 31.07.2015 in favour of the Complainant and the OP preferred an Appeal being No. A/965 of 2015 before this Commission and this Commission has been pleased to set aside the decree passed by the Ld. Forum by its order dated 26.09.2006 with a direction to give opportunity to the Complainant to apply for appointment of Ld. Engineer Commissioner to prove the shortfall in the area of the flat and thereafter to dispose of the case in accordance with law.
The facts of the case in brief are that the OP / Respondent is the absolute owner in respect of the land measuring about 6 cottahs at and being premises No. 148 A, Parnashree Pally Road, P.S. Behala ( Now Parnashree) , Kolkata -700060 within KMC Ward No. 131, District South 24 Parganas and OP mutated his name in the assessment of role of the Kolkata Municipal Corporation in respect of the said land having assessee No. 411311606418 . The OP decided to develop the said land by way of constructing a multi storied building with several self contained residential apartments / units and accordingly applied for sanctioning of building plan for construction of multi storied building of the said land. The OP obtained a sanctioned building plan duly sanctioned by the KMC for construction of partly 3 and partly G+ 3 building on the said land. During the work of construction OP declared to sell self contained residential flats of the multistoried building at the said premises and invited booking from intending purchasers. Knowing the fact, the Complainant approached the OP to purchase a self contained residential flat measuring about 1000 sqft super built up area on the first floor ( Flat No. B) of the building at the said premises at a total consideration of Rs. 7,00,000/- . The Complainants verified and examined the sanctioned building plan and tax payment receipts of KMC and the title deed of the property through their Advocate. Being satisfied with those documents Complainants proceeded to purchase the said flat. Accordingly, the Complainants entered into an development agreement with the OP on 01.02.2004 to purchase the said flat at a total consideration of Rs. 700000/- . The terms and conditions contained in the agreement are as :
I. Total consideration of the flat Rs. 700000/-
II. The physical measurement if found less and excess, it will be adjusted at the rate of Rs. 700/- only per sqft.
III. Possession of the flat to be delivered within 18 months from the date of execution of the agreement for sale.
IV. If the OP fails and neglects to the register the deed of conveyance of the said flat in favour of the Complainant after payment of consideration in that event the Complainants are at liberty to take shelter of the appropriate court of law.
The Complainant already paid of Rs. 6,70,000/- out of consideration of Rs. 7,00,000/- . The OP asked the Complainants to take the possession of the flat as the same is in habitable condition but before taking the possession of the said flat the Complainants engaged one LBS of KMC namely Ganesh Chandra Santra as advised by the SBI Parnashree Branch with a view to measure the super built up area of the flat under the agreement. It is to be mentioned here that Complainants took financial assistance from the SBI , Parnashree Branch. Though the Complainants asked the OP to be present on the date of measurement of the said flat but OP did not present on that date . After measurement, the said LBS issued a certificate on 24.06.2004 wherefrom it was observed that the super built up area of the flat was 988 sqft which is 12 sqft less from the 1000 sqft as per agreement. OP issued the possession letter on 30.10.2005 in favour of the Complainants but OP did not come forward to execute and register the deed of conveyance of the flat in question. Though Complainant requested several times to execute and register the deed of conveyance OP did not do so. The OP sent a letter dated 14.02.2006 through his advocate to the Complainant (with a copy to the SBI, Parnashree Branch ) with a request to pay the amount of Rs. 30,000/- but did not say anything about the execution and registration the deed of conveyance. Complainant sent a reply dated 20.02.2006 informing the OP that the flat was 12 sqft less than the specified area. The Complainants already mutated their names in the assessment role of the KMC. Complainants admitted that they paid Rs. 6,70,000/- out of Rs. 7,00,000/- . Complainant sent a legal notice dated 01.08.2014 to OP to execute and register the deed of conveyance of the flat in question. Complainant already prepared the draft deed of conveyance but OP refused to accept the same. Hence, Complainant alleged that OP is guilty for deficiency in service and Complainants are suffering mental harassment since 2005. Hence, the petition for complaint was filed prayed for an order upon OP to execute and register the deed of conveyance in respect of the said flat along with compensation of Rs. 2,50,000/- and litigation cost of Rs. 10,000/-.
OP filed his W.V. before the Ld. District Forum denying all material allegations interalia stated that the OP conceded to request of the Complainants and agreed to transfer a flat at a total consideration of Rs. 7,00,000/- and entered to an agreement on 01.02.2004. OP mentioned in his W.V. that Complainants have acknowledged the letter of possession dated 30.10.2005 with full satisfaction though physical possession was delivered on 10.08.2005 and as such the shortage of 12 sqft is a myth and OP does not admit of such shortage. The Complainants did not want registration withholding payment of balance consideration of Rs. 30,000/.Therefore, there is no deficiency in service on the part of the OP. It was not in the knowledge of the OP that there was any term between the Complainant and the Bank such that appointment of LBS is necessary. So no question of adjustment of money arises due to shortage of 12 sqft against the due consideration of Rs. 30,000/- . Hence, OP prayed for dismissal of the Complaint with cost.
Ld. District Forum allowed the complaint case on contest against the OP with cost of Rs. 10,000/- . OP was also directed to register the deed of conveyance in favour of the Complainants in respect to the subject flat within a month, in default, Complainants are at liberty to get the deed registered through the process of the Forum. OP is also directed to pay a sum of Rs. 100000/- as compensation to the Complainants for loss suffered by them within a month after having deducted the amount Rs. 13,200/- which OP is entitled to get from the Complainants. If the cost and compensation is not paid within stipulated time the amount will bear interest @ 6% p.a. till full realization.
Once the decree has been passed on 31.07.2015 and appeal was preferred by the OP being No. 965 of 2015 and this Commission passed an order on 26.09.2006 with a direction for appointment of an Engineer Commissioner to prove the shortfall of the area of the flat. The case has been remanded back and the measurement of the flat has been taken. The report has also been filed by the survey passed Commissioner namely, Sri Swapan Sarkar. One objection was filed against the said report of the OP being application no. MA No. 330 of 2017. The MA has been rejected and the report of the surveyor has been accepted. As per report of the surveyor appointed by the Ld. Forum it was observed that there is a deficit 24 sqft in the flat of the Complainants. The Ld. Forum has calculated that as per agreement the value of 24 sqft. would be 16,800/- and OP is entitled to get balance consideration of Rs. 30,000/- . Therefore, Ld. Forum has calculated that OP is entitled to get Rs. 30,000/- minus 16,800/- = Rs. 13,200/- .
Being aggrieved by and dissatisfied with the said order the sole OP preferred an appeal before this Commission. The Appellant preferred this Appeal since Ld. Forum ought to have consider the fact that there is no negligence and deficiency in service on the part of the OP. Hence, OP/ Appellant prayed for dismissal of complaint and order dated 03.12.2018 in connection with CC 402 of 2014.
We have gone through the memo of appeal, brief notes of appeal filed by the Respondents, final order of the DCDRF and documents in particular. It is admitted that that originally there were two Complainants who were husband and wife. During the pendency of the case, the husband died and his legal heirs had been substituted for him.
It is admitted fact that OP who is developer cum land owner entered into an agreement for sale on 01.02.2004 for a self contained flat measuring about 1000 sqft. described in the scheduled to the Complaint for a total consideration of Rs. 7 lakh. It was agreed to deliver the possession of the flat within 18 months from the date of execution of the said agreement. It is also admitted that the Complainants paid Rs. 6,70,000/- on different dates. Complainants annexed one document that they have appointed an LBS from which report it was mentioned that the flat was measuring 988 sqft. instead of 1000 sqft. Thereafter, the Complainant took the possession of the flat and OP issued the possession letter to that effect. It is admitted that Rs. 30,000/- was due as balance consideration payable by the Complainants. Complainants have alleged that OP did not pay any heed to execution and registration of conveyance for the flat in question but all documents speak that Complainant have alleged that the flat is of less area of 12 sqft and Complainants also did not take any initiative to execute and register the deed of conveyance of the flat. OP sent a legal notice demanding Rs. 30,000/- as balance consideration which was due to him from the Complainants. It was clearly written in the agreement if there is any short fall or excess of area in measuring the flat then @ Rs. 700 per sqft. would be adjusted for the same . Complainants ought to have given proposal that they would give the balance consideration of Rs. 30,000/- minus Rs. 700 X 12 sqft. ie. Rs. 8400/- but complainant never approached for the same. Complainant engaged the LBS firstly in their choice. When the case has been remanded by this commission for appointment of Engineer Commissioner, Ld. Forum has appointed an Engineer Commissioner following the order of this Commission and from that report it is evident there is a short fall of 24 sqft of the flat in question. Therefore, as per agreement the price of the short fall of the area would be Rs. 700 x 24 = Rs. 16,080/- whereas OP is entitled to get Rs. 30,000/- as balance consideration. Therefore, at this juncture the OP is entitled to get Rs. 30,000/- minus 16800/- i.e, Rs. 13200/- from the Complainants. OP gave the possession to the Complainant in the year 2005 and Complainants are enjoying the flat since then. Since 2005 Complainant take no initiative to execute and register the deed of conveyance of the flat and holding the balance consideration of Rs. 30,000/- upon one and only plea that the flat is of less area of 12 sqft. as per their LBS report. It is the obligatory duty of both parties to execute and register deed of conveyance of the flat in question. Complainants are enjoying the flat withholding the balance consideration amount and when the OP demanded the balance consideration they took the plea of shortfall of the flat. No documents show that complainants requested for execution and registration of their flat before 2014, which was sent to OP just before filing the complaint case before the Ld. District Forum. Therefore, we find no latches on the part of the OP for which he would be penalized with huge compensation payable to the complainants. Ld. Forum has observed that OP has dragged the matter about 13 years since 10. 08.2005 i.e, that the date of delivery of the possession. By this time the cost of stamp duty and registration fees have gone much higher and for that reason Complainants are entitled to be compensated by the OP. We are in the view that both the parties dragged the matter for about 13 years, so, OP is not liable to compensate the Complainants. As a result, appeal is allowed in part.
The OP is directed to execute and register the deed of conveyance in favour of the Complainants in respect of the flat within a month from this order and Complainants are directed to pay Rs. 16,800/- to the OP on the date of execution and registration of the flat. There is no order as to costs.
The Appeal is disposed of in aforesaid manner. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER