State Consumer Disputes Redressal Commission
M/S. Sukalyani Cil Women Welfare ... vs Mr. Debasish Mandal on 14 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1094/2015 (Arisen out of Order Dated 28/07/2015 in Case No. CC/526/2012 of District Kolkata-I(North)) 1. M/s. Sukalyani CIL Women Welfare Organisation CE - 178, Salt Lake North, P.S - Bidhannagar (North), Kolkata - 700 064. 2. Dr. (Mrs.) Reba Roy, President. CE - 178, Salt Lake North, P.S - Bidhannagar (North), Kolkata - 700 064. 3. Mrs. Bharati Mukherjee, Secretary CE - 178, Salt Lake North, P.S - Bidhannagar (North), Kolkata - 700 064. 4. Mrs. Susmita Sengupta, Treasurer CE - 178, Salt Lake North, P.S - Bidhannagar (North), Kolkata - 700 064. ...........Appellant(s) Versus 1. Mr. Debasish Mandal S/o, Bhupendra Nath Mandal, 2A, Khasmahal Street, P.S - Manicktala, Kolkata - 700 006. 2. The Kolkata Municipal Corporation 5, S.N.Banerjee Road, Kolkata-13 3. The Assistant Assessor-Collector (N) The Kolkata Municipal Corporation ,5, S.N.Banerjee Road,Kolkata-13 ...........Respondent(s) BEFORE: HON'BLE MR. TARAPADA GANGOPADHYAY PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Tapas Chakraborty , Advocate For the Respondent: Mr. Indrajit Bhattacherjee, Mr. Pradip Kumar Saha, Advocate Mr. Anindya Sundar Chatterjee, Advocate Mr. Anindya Sundar Chatterjee, Advocate Dated : 14 Feb 2017 Final Order / Judgement HON'BLE MR. TARAPADA GANGOPADHYAY, PRESIDING MEMBER
This Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP Nos. 1 to 4 assailing the judgment and order dated 28.07.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Unit-I, Kolkata, in Complaint Case No. 526/2012, directing the OP Nos. 1 to 4 to jointly and/or severally execute and register the Deed of Conveyance in favour of the Complainant and also to pay as compensation to the Complainant Rs. 50,000/- for delayed delivery of possession, Rs. 50,000/- for shortage in area of the flat, Rs. 1,00,000/- for harassment and mental agony and Rs. 10,000/- as litigation cost within 30 days from the date of the order, failing which the entire amount shall accrue interest @ 10% per annum for the entire period of default.
The brief facts of the case, as emanating from the materials on records, are that the Respondent No. 1/Complainant was allotted, vide Allotment Letter dated 26.4.2003 on Non-Judicial Stamp Paper of Rs. 10/-, by the Appellant No. 1/OP No. 1 a flat of '1080 sq. ft. super built-up area more or less' on the second floor in a housing complex constructed by the Appellant No. 1/OP No. 1-Organization with condition of handing over possession of the allotted flat after completion of the building concerned. The possession of the flat in question was handed over to the Respondent No. 1/Complainant in the month of December, 2003. After taking possession of the flat in question in 2003 the Respondent No. 1/Complainant in 2005 found out the actual area of the flat as '970 sq. ft.' instead of allotted 1080 sq. ft. super built-up area, as averred in the Petition of Complaint without adducing any documentary evidence in support of 970 sq. ft. area of the flat. After completion of modification of the draft Sale Deed, as sought by some of the allottees of the building concerned, the Appellants/OP Nos. 1 to 4 issued Notices dated 10.3.2006 followed by reminder dated 20.03.2007 to all the allottees requesting them to get their Sale Deeds registered, but the Respondent No. 1/Complainant did not come forward as revealed from the materials on records. The Respondent No. 1/Complainant defaulted in payment of service charge of Rs. 5.346/- as revealed. With this factual matrix the Complainant moved the Complaint Case concerned before the Ld. District Forum which passed the order in the aforesaid manner. The OP Nos. 1 to 4 having been aggrieved by such order moved the instant Appeal before this Commission.
The Ld. Advocate for the Appellants/OP Nos. 1 to 4 submits that the possession of the flat was handed over to the Respondent No. 1/Complainant in the month of December, 2003 when the Respondent No. 1/Complainant did not raise any objection to the area of the flat, but lodged the Complaint regarding shortage of area of the flat on 14.05.2005, i.e. after expiry of almost two years from the date of handing over possession, and hence, such complaint indicates ill-motive of the Respondent No. 1/Complainant.
The Ld. Advocate also submits that for completion of the registration of Deed of Conveyance the Appellants/OP Nos. 1 to 4 issued Notice dated 10.3.2006 to the allottees followed by reminder dated 20.03.2007, but the Respondent No. 1/Complainant did not respond to the said Notice and the Appellants/OP Nos. 1 to 4 could not complete the registration of the Deed of Conveyance for non-response of the Respondent No. 1/Complainant and hence, the Appellants/OP Nos. 1 to 4 are not responsible for pendency of the registration of the Deed of Conveyance.
The Ld. Advocate further submits that in the Allotment Letter the area of the flat was mentioned as '1080 sq. ft. super built-up area more or less', indicating thereby that the area of the concerned flat may be less than 1080 sq. ft. super built-up area.
The Ld. Advocate adds that as the super built-up area generally includes the open common space around the building in which the flat is located, so the super built-up area appears to be higher than that of the built-up area or carpet area which do not include the common open space, and that the area of the flat of the Respondent No. 1/Complainant is 970 sq. ft., as claimed by the Respondent No. 1/Complainant, without mentioning whether the detected area is super built-up area or carpet area and also without adducing any documentary evidence in this respect, and hence, the allegation about shortage of area without reference to the unit of the area is baseless and motivated.
The Ld. Advocate continues that the Respondent No. 1/Complainant is in default of payment of service charge of Rs. 5,346/- payable to the Appellants/OP Nos. 1 to 4 and hence, the Respondent No. 1/Complainant cannot claim benefit of service. In this connection, the Ld. Advocate refers to a decision of the Hon'ble National Commission in Malkiat Singh Vs. Saheed Bhagat Singh Nagar, Housefed Complex, Cooperative Housing Building Society Ltd. Through its President & Ors., reported in 2013 (3) CPR 180 (NC).
The Ld. Advocate adds that the Inspection Report dated 14.1.2009 by the Kolkata Municipal Corporation (KMC) in respect of area of the flat, as relied upon by the Respondent No. 1/Complainant, is not admissible u/s 85 of the Evidence Act as was held by the Hon'ble High Court at Calcutta in its decision in Jitendranath Joarder Vs. Makhan Lal, reported in 61 CWN 175.
The Ld. Advocate also submits that the case suffers from non-joinder of parties being Dulal Mukherjee & Associates that surveyed the area of the building and thus became a necessary party.
The Ld. Advocate finally concludes that the foregoing submissions clearly indicate that there is no deficiency in service on the part of the Appellants/OP Nos. 1 to 4 and hence, the instant Appeal should be allowed and the impugned judgment and order be set aside, being not based on evidence but on presumption and the Complaint be dismissed the same being filed for unlawful gain.
On the other hand, the Ld. Advocate for the Respondent No. 1/Complainant submits without adducing any documentary evidence that after personal verification by the Respondent No. 1/Complainant the area of the flat appears to be '970 sq. ft.' thereby exhibiting shortfall of 110 sq. ft. area when compared to allotted area as evident from the certified copy of the Inspection Book of KMC and hence, the Appellants/OP Nos. 1 to 4 have committed deficiency in service. The Ld. Advocate adds that failure to complete the registration of the Deed of Conveyance till date by the Appellants/OP Nos. 1 to 4 also constitutes deficiency in service on the part of the Appellants/OP Nos. 1 to 4.
The Ld. Advocate further submits that there is no non-joinder of party being Dulal Mukherjee & Associates as alleged by the Appellants/OP Nos. 1 to 4 as the said party having no nexus with the delivery of the flat with area less than the promised one.
The Ld. Advocate finally submits that in view of the aforesaid submission the instant Appeal should be dismissed and the impugned judgment and order be upheld.
The Ld. Advocate for the Respondent Nos. 2 & 3/OP Nos. 5 & 6 submits that no order has been passed by the Ld. District Forum against them so there is nothing to submit on behalf of them excepting the submission that the Inspection Report dated 14.1.2009 by the KMC, as available on records, is genuine.
We have heard both the sides appearing, considered their respective submission and perused the materials on records. The Allotment Letter dated 26.4.2003 issued by the Appellant/OP No. 1, as available on records, exhibits that a flat of '1080 sq. ft. super built-up area' on the first floor of the constructed building concerned was allotted in favour of the Respondent No. 1/Complainant.
Paragraph-VI of the Petition of Complaint reveals without any support of any documentary evidence that the Respondent No. 1/Complainant detected the area of the flat as '970 sq. ft' upon personal verification but without any mention whether the area so detected was super built-up area or not. Built-up area or carpet area as appearing to be the case of the Respondent No. 1/Complainant is always less than super built-up area which includes the open common space around the building, but the built-up or covered area do not as in the case on hand.
Further, the Inspection Report dated 14.1.2009 of the KMC, as relied upon by the Respondent No. 1/Complainant, also has not mentioned whether the area noted therein was super built-up area or built-up area or carpet area. But the narration of the spaces of the flat as described in the said Inspection Report implied that the area detected by the KMC was related to built-up area or carpet area but not super built-up area.
The built-up area or carpet area is generally less than super built-up area which, unlike the built-up area or carpet area, includes the open common space around the building concerned and hence, the Respondent No. 1/Complainant has not been able to prove conclusively that a flat with shortage of super built-up area was delivered to him. This apart, the Respondent No. 1/Complainant appears to have not raised any objection to the shortage of super built-up area of the flat in question at the time of receiving the possession of the same.
As regards the delay in registration of the Deed of Conveyance, it appears from Paragraph No. 14 of the written version, as filed by the Appellants/OP Nos. 1 to 4 before the Ld. District Forum concerned and as available on records, that the Appellant No. 1/OP No. 1 issued Notice only on 10.3.2006 to the Respondent No. 1/Complainant along with other allottees informing its readiness to register the Deed of Conveyance, although the possession of the flat was handed over in the month of December, 2003 and thus committed delay in registration of about 3 years, let alone the years subsequent to 10.3.2006, from the date of handing over the possession and such delay in completion of registration indicates deficiency in service on the part of the Appellants/OP Nos. 1 to 4.
The aforesaid facts, evidence and discussions lead to the conclusion that the impugned judgment and order deserves modification. Accordingly, the impugned judgment and order is modified to the following extent :
The Appellants/OP Nos. 1 to 4 are directed to pay to the Respondent No. 1/Complainant Rs. 1,00,000/- as compensation for harassment and mental agony suffered by the Respondent No. 1/Complainant for keeping the registration of the Deed of Conveyance pending at least for three years.
The Appellants/OP Nos. 1 to 4 are also directed to pay to the Respondent No. 1/Complainant Rs. 10,000/- as litigation cost.
All the above directions shall be complied with by the Appellants/OP Nos. 1 to 4 within 45 days from the date of the order, failing which interest @ 9% per annum shall accrue on the said amount till full realization of the same.
The other directions in the impugned judgment and order are hereby set aside.
Consequently, the instant Appeal is allowed in part and impugned judgment and order is modified to the aforesaid extent. [HON'BLE MR. TARAPADA GANGOPADHYAY] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER