State Consumer Disputes Redressal Commission
Sri Prasanta Kumar Pahari vs Sri Gautam Ghosh on 13 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/945/2016 (Arisen out of Order Dated 30/08/2016 in Case No. Complaint Case No. CC/182/2012 of District Kolkata-II(Central)) 1. Sri Prasanta Kumar Pahari S/o Lt. Jogneswar Pahari, 3, Canal Street, Flat no.4B, Lokenath Apartment, South Block, Kolkata-700 014. ...........Appellant(s) Versus 1. Sri Gautam Ghosh Flat no. 2-A-1, 2nd Floor, Block-A, 24B/1A, Dr. Suresh Sarkar Road, P.O. & P.S.- Entally, Kolkata- 700 014. 2. Durga Rani Das 140B, Harish Mukherjee Road, Kolkata -700 025. 3. Gopasre Das 140B, Harish Mukherjee Road, Kolkata -700 025. 4. Deb Sankar Das 140B, Harish Mukherjee Road, Kolkata -700 025. 5. Chandra Shekhar Das 140B, Harish Mukherjee Road, Kolkata -700 025. 6. Swetasree Das 140B, Harish Mukherjee Road, Kolkata -700 025. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Prasanta Banerjee, Advocate For the Respondent: Mr. Udayan Roy, Advocate Mr. Bibhas C. Ray, Advocate Mr. Bibhas C. Ray, Advocate Mr. Bibhas C. Ray, Advocate Mr. Bibhas C. Ray, Advocate Mr. Bibhas C. Ray, Advocate Dated : 13 Feb 2018 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This appeal has been directed against the judgment and order dated 30-08-2016 passed by Ld. DCDRF, Kolkata, Unit-II in CC/182/2012 where Ld. Forum concerned while disposing of the complaint case allowed the same on contest against the OP no. 1 directed him to refund the amount of Rs. 1,11,650/- (Rupees one lakh eleven thousand six hundred fifty) to the complainant for providing lesser super built up area measuring 77 sq. ft. for violation of the agreement for sale dated 14-03-2007, to pay a sum of Rs. 3,00,000/- (Rupees three lakh) towards compensation and Rs. 20,000/- (Rupees twenty thousand) towards litigation cost along with other consequential reliefs with default clause.
Being aggrieved by and dissatisfied with the said judgment and order dated 30-08-2016, the present appeal has been preferred by the OP no. 1.
Briefly stated, the case of the complainant of CC/182/2012 was that the complainant being in urgent need of purchasing a flat in Central Kolkata for the purpose of residence of the members of his family approached the OP no. 1/developer who was constructing a 3 storied building (G + 2) at the municipal premises no. 24B/1A, Dr. Suresh Sarkar Road, Entallly, Kolkata - 700014 measuring 13 cottahs 3 chitaks and 25 sq. ft. under the terms and conditions of a Development Agreement made between the landlord of the said plot of land and the OP no. 1/developer. One Gour Kishore Das, the OP no. 2 was the sole owner and occupier of the said plot of land and he entered into the aforesaid Development Agreement with the developer/OP no. 1 with a view to developing the said plot by way of constructing 2 and 3 storied building (G + 2) divided in Block-'A' and Block-'B' respectively and as per the Development Agreement the developer was entitled to 65% of the flat and garage space as Developer's Allocation and the said developer was entitled to sale his allocation in favour of the intending purchasers together with right to the common areas and common facilities thereto. The landlord also executed a general Power of Attorney in favour of the said developer empowering him to do all the acts necessary for the completion of the said development work. The complainant entered into a tripartite agreement for sale with the developer and the landlord intended to purchase a flat with super built up area of 900 sq. ft. in the 2nd floor of Block-'A' in the eastern side of the proposed building described in schedule 'B' along with undivided proportionate share and interest in the common areas, common facilities and amenities thereto for a consideration of Rs. 13,05,000/- (Rupees thirteen lakh five thousand) and on or before the date of execution of the said agreement for sale, he paid a sum of Rs. 9,05,000/- (Rupees nine lakh five thousand) in advance, Rs. 8,95,000/- (Rupees eight lakh ninety five thousand) by five cheques and Rs. 10,000/- (Rupees ten thousand) in cash. The developer on receipt of the said amount acknowledged it by signing the memo of consideration annexed with the said agreement for sale. Thereafter the remaining part of the consideration i. e. Rs. 4,00,000/- (Rupees four lakh) was to be paid to the developer at the time of delivery of possession on completion of the construction work within 31st March, 2007. There were further agreement that the sale deed and other relevant papers and documents would be prepared by the lawyer of the developer and the purchaser would bear all the costs, charges and legal expenses including stamp duty for registration of the deed of sale of the said flat. The complainant alleged that he took delivery of possession of the flat after registration of the deed of conveyance in the year 2010 and after taking such possession the complainant noticed that the construction of the flat was done with sub standard materials and the development work was not proper to the full satisfaction of the complainant, the area of the flat was 77 sq. ft. less. The developer though agreed to settle the final measurement of the flat in question and undertook to repair necessary for the said flat but ultimately did not take proper action either by refunding the amount of consideration for less area of the flat to the tune of Rs. 1,11,650/- (Rupees one lakh eleven thousand six hundred fifty) and left no alternative before the complainant but to take recourse of the DCDRF concerned.
A written version was filed on behalf of the OP where it was contended that the complaint case was not maintainable. Denying the cause of action as averred in the body of the petition of complaint, the OP no. 1 stated that the complainant being one of the intending purchasers of the flat measuring about 700 sq. ft. and the proposed flat was to be sold with super built up area adding 30% of the built up area (i.e. 900 sq.ft.) for a consideration of 13,05,000/- (Rupees thirteen lakh five thousand) out of Rs. 9,05,000/- (Rupees nine lakh five thousand) was to be paid at the time of execution of the agreement for sale and the balance of Rs. 4,00,000/- (Rupees four lakh) would be paid at the time of execution and registration of the deed of conveyance but actually on request of the complainant it was agreed that the additional area of 20% instead of 30% of built up area would be added with the actual built up area and upon measurement at the time of preparation of the site plan it was found 686 sq. ft. + 20% of the same came to 823 sq. ft. which was considered as lesser area of 77 sq. ft. and the price of Rs. 13,05,000/- (Rupees thirteen lakh five thousand) reduced to Rs. 9,00,000/- (Rupees nine lakh). The OP no. 1 further alleged that the complainant demanded marble floor in the flat by removal of mosaic floor at the OP's cost and threatened him with dire consequences in default of it. Denying and disputing all other material averments and allegations, the OP no. 1 ultimately prayed for dismissal of the complaint case.
Ld. Trial Forum upon consideration of the facts and circumstances of the case passed the order directing the OP no. 1 to refund a part of consideration for less area of the flat in question coupled with other consequential reliefs.
Initially the instant complaint case (being CC/182/2012) was dismissed on contest on 07-01-2015. Being aggrieved by such order of dismissal, first appeal being A/187/2015 was preferred before this State Commission and the same was allowed on 29-06-2016. The judgment dated 07-01-2015 passed by Ld. DCDRF was set aside and the complaint case was remitted to Ld. Trial Forum for fresh decision of the case, with certain observations and directions given in the said judgment.
Now the point for consideration is - whether Ld. Trial Forum was justified in allowing the complaint case by the judgment dated 30-08-2016 (i.e. the judgment impugned). Ld. Counsel appearing for the respondent in course of argument drew our attention to a declaration given by the appellant/OP which are quoted below for the just decision of the case -
"(1) That some damage has been occurred at Flat no. 20A/1, A/2B and 1A/1 of Block A of the said premises due to running heavy machines in the ground floor by one Engineering Factory along with lathe machines during my construction work at the said premises.
(2) That in such circumstances I agree to shift the flat owners/occupiers as stated above to any nearly similar flats for a temporary period to repair/reconstruct/complete Appeal the damaged/incomplete construction work of the flat owners/occupiers by executing 'a shifting agreement' with the said flat owners/occupiers and all the shifting expenses will be borne by me.
(6) That I promise/assure to settle the final measurement to the flat owners/occupiers of flat no. 2A/1, A/2B and 1A/1 as per the final and actual deviations/additions/alterations made in my construction project as I considered and applied the service area/super built up area according to the preliminary sanctioned plan and I also agree to refund the amount to the said flat owners/occupant for excess service area/super built up area which is already charged by me".
The above undertakings of the appellant clearly indicate that the appellant/Developer was lacking in giving proper service to the purchasers of the flat and he undertook to make good the loss of deficiency in service undertook to provide to the intending purchasers, the respondent/complainant being one of them.
The petition of complaint of CC/182/2012 clearly revealed that the complainant/respondent intended to purchase the flat measuring 900 sq. ft. for a consideration of Rs. 13,05,000/- (Rupees thirteen lakh five thousand) but in the deed of conveyance it was mentioned on Rs. 9,00,000/- (Rupees nine lakh) which was according to the complainant a mysterious one and the declaration given by the appellant (which is at pages 97 and 98 of the file) gave declaration for providing service to cause repair/reconstruct of the damaged/incomplete construction work of the flat owners at his own cost. Such declaration for repair, compensation etc. cannot be equated with shortfall of the flat measuring 77 sq. ft. in respect of which the flat owner gave proper consideration for purchasing the same, since the acknowledgement attached to the Agreement for Sale (page 58 of the file) clearly revealed that a sum of Rs. 9, 05,000/- (Rupees nine lakh five thousand) were received by the appellant herein on 14-03-2017. Ld. Trial Forum in the impugned judgment dated 30-08-2016 clearly discussed that the complainant/respondent herein was entitled to proper and adequate service by way of providing the actual covered area i.e. 900 sq. ft. and the shortfall of which would be 'deficiency in service' and in the back ground he directed the OP/appellant herein to refund the amount of Rs. 1,11,650/- (Rupees one lakh eleven thousand six hundred fifty) for the shortfall of 77 sq. ft. which was in clear violation of the terms of agreement dated 14-03-2007 though the OP/appellant was duty bound to do render his service by providing such a total area of 900 sq. ft. Hence, we are of firm opinion that he complainant/respondent was entitled to the relief in terms of the refund of consideration for the shortfall of the area measuring 77 sq. ft.
So far as the direction with regard to compensation and expenses incurred by the complainant for repair work, his mental pain and agony, coupled with litigation costs are concerned, we set aside that the part of the order and impose a consolidated amount of Rs. 25,000/- (Rupees twenty five thousand) in respect of all the heads referred to in the concluding part of the impugned judgment. Thus the appeal stands allowed in part. The first part of the order of Ld. Trial Forum in the impugned judgment dated 30-08-2016 stands affirmed but the later part is reduced to Rs. 25,000/- (Rupees twenty five thousand) as indicated herein above. Parties do bear their respective costs of appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER