M/s Rajwada Group vs Joyeeta Sarkar

Deepa Sharma, Presiding Member

IA No. 4458 of 2020 ( condonation of delay)

This application has been filed for condoning the delay in filing the present Appeal.   Not opposed.  Application is allowed on payment of cost of Rs.5000/- to the respondent by way of demand draft within 4 weeks.

First Appeal

The present Appeal has been filed against the order dated 16.01.2020 of the State Commission West Bengal.

2.The brief facts of the case are that respondent / complainant ( hereinafter referred to as ‘complainant’) had entered into an agreement to purchase a flat measuring 1015 sq.ft. being flat No. 5-C on the 5th Floor in Block-A together with one open car parking space measuring more or less 120 sq. ft. in G + 12 storied building together with proportionate undivided share of land situated at Municipal holding No.57, Vivekananda Sarani, P.S.Sonarpur, Dist. South 24 Parganas within the local limits of Ward No.26 of Rajpur-Sonarpur Municipality at a total consideration of Rs.41,07,000/- on 27.05.2014. She had stated that she had paid a sum of Rs.40,24,994/- as part consideration. She also obtained a loan from LIC Housing Finance Ltd. and also approached State Bank of India Baruipur Branch for obtaining the loan.  As per the agreement, the possession was to be handed over in October 2015 with grace period of 6 months but no offer was made till filing of complaint.

Aggrieved, she served a legal notice dated 14.08.2018 and, thereafter, she filed a complaint seeking possession of the flat and also seeking compensation and litigation cost.

3.The appellant appeared before the State Commission but did not file any written statement nor contested the matter and was proceeded ex parte.

4.The complainant filed her testimony by way of an affidavit and also filed documents including the occupancy certificate dated 11.06.2018. She also, thereafter, filed amended complaint whereby she sought measurement of flat to be done as she found that flat was not of the same area as was promised by the opposite party and also sought possession  as per the agreement and if the flat is not as per the agreement, sought refund of the money.

5.The State Commission heard the ex parte arguments of the complainant / respondent and held as under :

Clause 3 of the agreement for sale between the parties relates to committed date of delivery of possession, which is set out below:

"The possession of the flat would be handed over in the month of October'15. Further there will be a grace period of 6 months. If the possession is not delivered even within the said grace period the purchaser will be eligible for getting banking interest for the delayed number of days starting after the expiry of the grace period subject to the final payment which has to be made within 15 days from the date of intimation of completion is being served."

From the above, it is quite clear that the OP/developer was under obligation to handover the subject flat to the complainant within October, 2015 and if the grace period of six months is added, the committed date of delivery of possession should have been within month of March, 2016.

Evidently, after completion of construction of the building, developer has obtained Occupancy Certificate from Rajpur-Sonarpur Municipality on 11.06.2018. It signifies that the OP could not deliver the possession within the committed date of delivery of possession which prompted the complainant to lodge the complaint on 05.10.2018. In this regard, all the requests and persuasions including legal notice given by the complainant dated 14.08.2018 turned a deaf ear.

The complainant has specifically alleged that the developer is under obligation to provide her a flat having super built up area  of 1015 sq. ft. In this regard, Mrs. Debjani Mitra, Ld. Advocate of the complainant has invited our attention to the report of Valuer appointed by State Bank of India, Baruipur Branch before granting loan in favour of complainant. After inspection of the flat in question, the Valuer of the Bank has reported that the carpet area of the flat is 569 sq. ft. which not equivalent to 1015 sq. ft. super built up area. In this regard, Clause 12 of the agreement appears to be relevant which reproduces below:

"12. The mode of payment shall depend upon the measurement of the said which shall be calculated as per total covered area plus proportionate stair lobby (plus 30% super built up area) and such 30% super built up area is being calculated as because the Purchasers shall enjoy the common rights of Generator Space, Lift, Gymnasium, Children's park, Swimming Pool, Indoor Games Room, in the said building/ project to be made at the cost of the Developer."

Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the agreement with open eyes after evaluating its pros and cons. Therefore, when either of the parties did not pick up any quarrel with the terms and conditions of the agreement, the terms and conditions  are binding upon both the parties and there is hardly any scope to re-write the agreement.

The evidence given by the complainant remains unchallenged. After entered appearance, when OP did not refute the allegations made by the complainant, there is hardly any reason to disbelieve the statements of  complainant.

Considering the facts and circumstances and having heard the Ld. Advocate for the complainant it becomes quite clear that the complainant being an intending purchaser hired the services of OP on consideration but OP was found negligent or deficient in handing over the subject flat and car parking space as per terms of the agreement dated 27.05.2014 within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Accordingly, the complaint is entitled to some reliefs. In our view, a direction upon the Opposite Parties to hand over the subject flat and the car parking space as per measurement in terms of agreement for sale dated 27.05.2014 on payment of balance consideration amount within 45 days from the date of communication of the order will meet the ends of justice after proper measurement through an Engineer Commissioner subject to payment of compensation in the form of simple interest @ 8% p.a. from the committed date of delivery of possession i.e. from 01.04.2016 till the date of delivery of possession alternatively, applying the principles of law  laid down by the Hon'ble Supreme Court reported in II (2018) CPJ1 (Fortune Infrastructure -vs- Trevor D'Lima), we think, a direction upon the Opposite Party to refund the amount of Rs. 40,24,994/- (already paid by the complainant) along with compensation in the form of simple interest @ 12% p.a. from the date of each payment till its realisation will meet the ends of justice. As the situation compelled the complainant to lodge the complaint, she is also entitled to litigation costs which we quantify at Rs. 25,000/-.

Consequently, the complaint is allowed ex-parte with a direction upon the Opposite Party to hand over the subject flat and car parking space as per agreement for sale dated 17.05.2014 in favour of complainant after proper measurement through an Engineer Commissioner within 45 days from the date of communication of the order on receipt of balance consideration amount of Rs. 83,006/- subject to adjustment of compensation in the form of simple interest @ 8% p.a.  to be paid  by the OP in fron of complainant from the committed date of delivery of possession i.e. from  01.04.2016 till the date of actual delivery of possession and execution of sale deed alternatively, to refund the amount of Rs. 40,24,994/- along with compensation in the form of simple interest @ 12% p.a. from the respective date of payment till the date of realisation together with costs of Rs. 25,000/- to be paid to the complainant within a period of 60 days from the date of receipt of a copy of order.”

6.This order is impugned by the opposite party, who is the appellant  before me on the ground that there was an order dated 01.11.2018 whereby complainant was directed to file an application for appointment of Engineer Commissioner and it is submitted that this direction was not complied by the complainant. It is further submitted that once the offer of possession had been made, the complainant was bound to take the possession.

7.It is argued on behalf of the complainant / respondent that the direction to the complainant to move application for appointment of Engineer Commissioner had been done away with in view of the order dated 07.06.2019 after the measurement of the flat was taken by registered valuer of the State Bank of India and report was submitted.  It is further submitted that even otherwise, the State Commission in the impugned order has clearly ordered that for taking possession, the proper measurement of the area by Engineer Commissioner has to be done and if the area of the flat was as per the agreement, the complainant was bound to take possession.  It is submitted that since order of possession has already been made by the State Commission and the complainant is ready to take the possession as per the agreement, the argument of the counsel for the appellant that complainant is bound to take possession has no merit. It is submitted that order of refund has been made by the State Commission only in case Appellant fails to hand over the flat as per the agreement.

8.I have heard the arguments of learned counsel for the parties and have gone through the record.  It is the admitted that subject flat No. 5-C on 5th Floor in Block No.’A’ admeasuring 1015 sq.ft. together with car parking space of 120 sq.ft. had been booked as per the agreement between the parties dated 27.05.2014. The dispute before the State Commission related to the area of the constructed flat since the complainant found that the area of the constructed flat was not as per the area promised by the Appellant. There is no admission or denial and no contentions on the part of the Appellant before the State Commission whereby area was as per the agreement dated 27.05.2014 or not.  However, since there was a contention on the part of the complainant being mindful of this version and mindful of the fact that there was no counter evidence on the part of the opposite party to show whether the area of the flat which was offered was as per the agreement or not while issuing direction, State Commission had also issued direction  regarding measurement of flat through an Engineer Commissioner before possession was to be handed over.  It is also directed that in case the area of the flat was found by the Engineer Commissioner as per the agreement,  the complainant was to take possession along with compensation as awarded and in case it was not as per the agreement,  the State Commission directed order of refund.  The argument that complainant was bound to take possession and that is an illegality in the impugned order has no merit because order of possession has already been made. The State Commission could not have directed the complainant to take possession of the flat if the flat was not in terms of the agreement between the parties.

9.The present Appeal has no merits. There is no illegality or perversity in the impugned order.   Appeal is dismissed.