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Judgment
C. Viswanath, J
The Revision Petitions are filed by the Petitioners under Section 21(b) of the Consumer Protection Act, 1986 against the Orders passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the "State Commission") in Appeal No. 1106/2014 and Appeal No. 1107/2014 dated 12.07.2018.
In the Complaint Case No. 428 of 2010, it was stated by Respondent No.1/Complainant that an agreement for sale was executed between him and Petitioner/Opposite Party No.1 for purchase of a self-contained Flat No. 5E (previously numbered as 6) in the 5th Floor, measuring about 1357 sq. ft. super built-up area, Flat located at Premises No. 23, Marquis Street, P.S. - New Market, Kolkata-700016, at a consideration of Rs.1,300/- per sq. ft. for the Flat and Rs.75,000/- for a covered garage, measuring about 150 sq. ft. on the Ground Floor totaling to a sum of Rs.20,73,100/-. The Complainant stated that he had paid almost the entire consideration amount, except the balance amount of Rs.71,785/-, Rs.51,785/- for the flat and Rs.20,000/- for covered garage. On 01.08.2005, the developer delivered the possession of the Flat to him. However, after taking the possession, he found that the measurement of the flat was 1050 sq. ft., instead of 1537 sq. ft. super built up area. Time and again he requested the Petitioner to measure the said flat, but in vain. Hence, a Complaint was filed by Respondent No.1 alleging deficiency in service on the part of the Petitioner and other Respondents (i.e. Respondent No. 2 and 3).
The Complaint was contested by the Petitioner in the District Forum stating that the allegations were baseless, as the lift service was provided to the residents of the premises for 24 hours with power backup service, and large numbers of flat owners were enjoying the flat and no one has made any such allegation. He further submitted that the Petitioner invited forming an association to look after the maintenance and had taken all necessary steps for forming the same, but the residents as well as the Respondent No.1 had not responded. He further submitted that no construction work was left incomplete as per the agreement between Respondent No.1 and the Petitioner. For some unfounded reasons, Respondent No.1 does not agree to get the sale deed registered. The valuation of the property has also increased in the meantime. Respondent No.1 has to clear all the fees etc. which have increased since then and the Petitioner was always willing to execute the sale deed in favour of the Respondent No.1. Respondent No.1 is yet to pay Rs.71,785/-, through possession had been taken by Respondent No.1.
The District Forum, vide order dated 13.03.2014, allowed the Complaint on contest against the Petitioner but without any cost and the same was dismissed against Respondent No.2 without any cost. It held "OP No.1 is hereby directed to take all such steps for measuring the said flat by the architect as mentioned in the agreement to sale and measure the flat in presence of the complainant within one month from the date of this order positively and that measurement must be signed by the complainant and the OP and if complainant refuses to sign, in that case complainant shall have to appoint one architect form the panel of the Hon'ble High Court, Calcutta and measure the flat as per agreement and clause of the agreement in presence of the OP or his agent and same shall be signed by the Complainant and OP or OP's agent with seal of the OP No.1 and same shall be completed within one month form the date of this order and after that said report shall be submitted to this Forum. As per report of the architect of both the parties, when submitted before this Forum same shall be considered by this Forum and after that Complainant shall have to deposit the balance amount of Rs.71,785/- to this Forum including interest of Rs.71,785/- i.e. total Rs.1,43,570/- to this Forum within 15 days from the date of receipt of the measurement report of the architect to be filed by the complainant or OP No. 1 and after deposit of the same by the Complainant before this Forum, complainant shall have to report to the OP for registration of the deed. But entire cost shall be borne by the Complainant even wealth tax or any income tax for increase of valuation of the flat as it would be assessed by the registering authority. But OP No. 1 shall not have to pay any amount for registration or payment of registration cost, wealth tax or other cost. Both the parties are directed to take such step as per spirit of this order within 2 months from the date of this order failing which this complaint shall stand dismissed."
Thereafter, being aggrieved by the order of District Forum, the Petitioner filed an Appeal before the State Commission against the Respondents. State Commission, vide order dated 12.07.2018, disposed the said appeal. State Commission passed the following order:
"After giving due consideration to the submission made by the parties I think when the possession was delivered on 01.08.2005 i.e. long thirteen years back the developer themselves should have taken initiative to measure the flat in the presence of the respondent no.1/complainant and after long thirteen years when measurement was taken at the instance of respondent no.1/opposite party, the developer should not have raised any objection and it is palpably clear that the developer had no intention to measure the flat and as such they did not take initiative in accordance with the direction of the Ld. District Forum which simply signifies deficiency in services on the part of the opposite party/developer. Therefore, relying upon the materials on record and additional evidence recorded in this appeal, when it transpires that the super built-up area of the subject flat is 1215 sq. ft. i.e. less than 322 sq. ft. than the agreed measurement, the respondent no.1/complainant is entitled to refund of the amount of Rs.1300/- per sq. ft. x 322 sq. ft. = Rs.4,18,6000/- subject to payment of balance consideration amount of Rs.71,785/- and after deduction of the said amount, the amount payable by the appellant/O.P. No.1 to the respondent no.1/complainant comes to Rs.3,46,815/-. The Ld. District Forum by the impugned order did not pass any order imposing compensation over the said amount. The respondent no.1/complainant did not prefer any appeal being aggrieved against the order. Therefore, the respondent no.1 is only entitled to an order of getting the deed executed in favour of him and the amount of Rs.3,46,815/-.
In view of the above, the impugned judgement/ final order is modified to the extent that the Appellant/Opposite Party No.1 is directed to execute a Deed of Conveyance in favour of the Respondent No.1/Complainant in respect of the subject flat as per terms of Agreement for Sale within thirty (30) days from date and also to refund Rs.3,46,815/- for less area of the subject flat in favour of the Respondent No.1/Complainant within thirty (30) days from date otherwise the amount shall carry interest @9% p.a. from date till its realisation."
Being aggrieved by the order passed by the State Commission, Petitioner preferred the present Revision Petitions.
Heard the Learned Counsel for the Petitioner as well as Respondents. They reiterated the arguments as already stated above.
Respondent No.1 / Complainant entered into an agreement for sale with Petitioner/Opposite Party No. 1 for purchase of a flat measuring 1537 sq. ft. super built-up area in New Market Kolkata at a consideration of Rs.1300/- per sq. ft. for the flat and Rs.75,000/- for a covered garage measuring 150 sq. ft. totalling to Rs.20,73,100/-. The Complainant paid the entire consideration, except the balance amount of Rs.71,785/-. Possession of the flat was delivered to him on 01.08.2005. On taking possession, the Complainant found that the measurement of the flat was 1050 sq. ft. instead of 1537 sq. ft. super built-up area. He requested the Petitioner/OP to measure the said flat, but to no avail. The entire dispute between the two parties revolved around measurement of the flat. The District Forum directed the Petitioner/OP No. 1 to take all steps for measurement of the flat by an architect in the presence of the Complainant within one month and the Respondent No. 1/Complainant to deposit the balance amount of Rs.71,785/- with the District Forum alongwith interest. Aggrieved by this order the Petitioner approached the State Commission and the State Commission appointed an Engineer Commissioner, who on measurement reported that the super built-up area of the flat worked out to 1215 sq. ft. as against 1537 sq. ft. as allegedly sold to the Complainant, less by 322 sq. ft. @1300/- sq. ft. The deficiency being monetarised to Rs.4,18,600/-. The State Commission, therefore, ordered for refund of Rs.3,46,815/- after deducting the unpaid amount of Rs.71,785/-.
Both the District Forum and the State Commission concurred in their findings that there was deficiency in service on the part of the Petitioner. They identified the dispute between both the parties and ordered scientific measurement of the flat. Without complied with the orders of the District Forum, the Petitioner appealed to the State Commission which got the flat scientifically measured by an Engineer Commissioner and after deducting the amount to be paid by Respondent No. 1/Complainant, ordered refund of Rs.3,46,815/- towards the shortfall in the area in the flat alongwith interest @9% p.a. in case of failure to comply with the order.
The facts, issue involved and orders of both the lower fora are similar in both the Revision Petitions, i.e., RP No. 2938 of 2018 and RP no. 2939 of 2018, except difference in figures and amount.
In view of the above, we see no infirmity in the orders passed by the State Commission, which calls for any interference. The orders passed by the State Commission are upheld and the Revision Petitions are dismissed.