DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24-PARGANAS, JUDGES’ COURT,
ALIPORE, KOLKATA-700 027
>> C.C. CASE NO.: 220 OF 2008 <<
DATE OF FILING: 5.9.2008
DATE OF PASSING JUDGEMENT: 25.06.2009
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Present : President : Dipak Shyam Roy
Member(s) : Amitabha Roy Chowdhury & Sharmi Basu
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COMPLAINANT : 1. Smt. Sarmistha (Mitra)Sengupta,d/o late S.L. Mitra
and Late Mira Mitra of Pritha Apartment,
Mahamayapur, Garia, Tentultala, P.S. Sonarpur, Kolkata – 84
2. Sri Jayanta Kumar Mitra,s/o late S.L. Mitra of Sayak Complex,
Garia Main Road, Tentultala, P.S. Sonarpur,Kol-84
3. Smt. Swapna Mitra ,d/o late S.L. Mitra of Sayak Complex,
Garia Main Road, Tentultala, P.S. Sonarpur,Kol-84
- >> : versus : << -
O. P. / O. PS : 1. Sri Shymal Majumdar,s/o late H.S. M. Majumdar,
Ramkrishna Nagar, Garia, P.S. Sonarpur,Kolkata – 84.
2. Smt. Kanan Mondal,w/o late Subol Mondal
3. Amarendra Mondal
4. Purnendu Mondal
5. Niranjan Mondal,
all (3), (4), (5) are sons of late Subol Mondal
6. Smt. Uma Naskar
8. Smt. Nilima Mondal,
9. Smt. Pratima Mondal,
all are daughters of late Subol Mondal
all (2) to (9) are residing at Mondal Para, Mahamayapur,
Garia, P.S. Sonarpur,Kolkata – 84.
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>> J U D G E M E N T <<
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The complainant filed this petition under section 12 of the C.P Act alleging deficiency in service of the O.P’s. They stated therein that one Subol Mondal ,now deceased, had entered into an agreement with the O.P-1 for development of his land and construction of a multistoried building thereupon. He had also given a power of attorney to the O.P-1 for such construction and sale of flats to the intending purchasers. The development agreement was signed on 7.9.1992 and the power of attorney given on 2.2.1993. Later, Swati Mitra ,now deceased, sister of the complainants, had entered into an agreement for sale of one flat with the O.P-1 , the developer on 20.5.1998. The flat was to be of 700 sq.ft and the consideration amount was fixed at Rs. 378000/- @Rs.540/- per sq.ft . Swati Mitra had paid the entire consideration amount to the O.P-1, before she died in 2002. She got possession of the flat on 27.7.1998 and had resided there till her death. However, the O.Ps are not coming up to register the sale deed of the flat. After death of Swati Mitra, the present complainants became the owners of the flat, being her legal heirs (after death of their mother Mira Mitra in November, 2007) . On 12.12.2003 Smt. Mira Mitra had measured the flat by a Registered Valuer Sri Amit Kr. MOndal . It was found that the super built up area of the flat was only 601 sq.ft instead of 700 sq.ft for which the payment was made to the O>P-1. The excess amount paid to the O.P-1/developer is therefore to be refunded by the O.P-1 to the complainants. Besides O.Ps have to register the sale deed and also furnish the completion certificate. The complainants have written to the O.Ps i.e. the developer (O.P-1) and the land owners ( O.P -2 to 9 , who are the successors of Subal Mitra, since deceased) to make good their deficiencies as above, but they are not responding. Hence this complaint.
The complainants prayed to this Forum for a direction upon the O.P’s for registration of the deed of conveyance, for refund of the excess amount paid as consideration money and compensation. The O.P’s did not appear inspite of notices being duly served on them. Hence the case was heard exparte against the O.Ps. The complainants filed their evidence on affidavit.
Decision of the Forum : We have seen the documents filed in this case and also heard the ld. advocates for the complainants. The O.P’s did not contest the case. We have seen that the present complainants are the legal heirs of Swati Mitra who was the original purchaser of the flat through an agreement for sale dated 20.5.1998 . The complainants claimed that Swati Mitra had paid entire consideration amount of Rs. 378000/- to the O.P-1/developer for the flat of 700 sq.ft being measurement of its super built up area. Swati Mitra also got possession of the flat on 27.7.1998 and had resided there till her death in the year 2002. Subol Mitra was the original owner of the plot of land where the building was constructed by the developer the strength of a development agreement and a power of attorney given by the land owner. After Subol Mitra had expired , the O.P-2 to 9 became the owners as his legal heirs. The O.P-1/developer stated in the possession deed of the flat that he had delivered possession of the flat after he received Rs. 3,37,000/- from the purchaser in installments and had exonerated the purchaser from paying any further instalment or any money whatsoever towards price of the flat .Hence full payment had been received by the O.P-1 for the flat. It was therefore an obligation of the O.P’s to execute and register the sale deed of the flat in favour of the purchaser. It is a deficiency on the part of the O.P’s not to have completed that obligation in terms of agreement for sale.
Now two more issues have been brought to our notice by the complainants.
a) The registration of the flat is to be made now in favour of the complainant no.1 and 2 only. Complainant no.3 Smt. Swapna Mitra has submitted an affidavit dt. 5.11.2008 praying therein for such registration in favour of Smt. Sarmistha (Mitra) Sengupta and Jayanta Kr. Mitra i.e. complainant nos. 1 and 2 respectively. We may accept this prayer and order accordingly.
b) The complainants stated that the flat had been measured by one registered valuer on 12.12.2003. it was found after measurement that the super built up area of the flat was 601 sq.ft only and not 700 sq.ft for which the payment was made by the purchaser. The complainants prayed for refund of the excess amount paid to the developer of the flat. But we found from the agreement for sale that the total measurement of the flat (700 sq.ft) consisted of 600 sqft as built up area and 100 sq.ft as common space and common passage. These common spaces/passages ,we know, in cases of a multistoried building refer to the area where all the flat owners have common access. The measurement of the civil consultant dt. 12.12.2003 shows no mention of the common space/passage though it allows 10% to plinth area). Moreover the purchaser had paid actually Rs. 3,37,000/- and not Rs. 3,78,000/- as claimed by the complainants, as price of the flat. Under these circumstances we cannot accept the contention of the complainants that payment was made in excess by the purchaser of the flat and that any amount is due to be refunded to them by the O.Ps. The petition of the complainants is therefore to be allowed in part along with compensation and costs.
Hence Ordered
That the petition under Section 12 of the C.P Act is allowed in part exparte with costs. The O.Ps are directed to execute and register the deed of conveyance of the flat in favour of the complainants nos. 1 and 2 within a month from this date of order in terms of the agreement for sale dt. 20.5.1998, failing which the O.P-1 shall pay Rs.50/- per day and O.Ps nos. 2 to 9 shall together pay Rs.50/- per day to the complainants nos. 1 and 2 till the date of registration. The O.P-1/developer shall also pay Rs.5000/- as compensation for harassment and another Rs.2000/- as cost of litigation to the complainant nos. 1 and 2 within a month from the date of order.
Let a copy of this order be served upon the parties free of cost.
Member Member President
Dictated and corrected by me
Member