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Judgment
V.K. Jain, Presiding Member
The complainant/respondent submitted an application to the appellant for allotment of a residential apartment in a project which the appellant was to develop in district South 24 Parganas of West Bengal. The application for allotment was submitted on 08.05.2010 and an agreement between the parties was executed on 20.05.2010. The sale consideration for the apartment, including one covered car parking, was agreed at Rs. 20,60,000/-. After completion of the construction, the appellant sent an intimation dated 23.02.2012 to the complainant informing him that the flat and car parking was ready for possession. He was requested to visit the flat, satisfy himself regarding its condition extra and take possession. The said letter also contained a demand of Rs. 6,23,218/- as detailed below:-
Amount due on possession Rs. 2,00,000/-
Cost of extra civil works in your flat Rs. 75,000/-
Deposits towards common maintenance, Rs. 5,000/-
House tax etc.
Cost of extra electric job at your flat Rs. 7,950/-
(Bill enclosed).
Price escalation @ Rs. 200/- per sq. ft.
i.e. 1345 sq. ft. X Rs. 200 Rs. 2,69,000/-
Cost of Registration fees. Rs. 30,876/-
Attornment charges @ 2% Rs. 56,138/-
Less: Received earlier Rs. 20,746/- Rs. 35,392/-
TOTAL Rs. 6,23,218/-
On receipt of the said letter, the complainant made payment of Rs. 4,29,218/- to the appellant. The appellant issued receipt dated 19.05.2012 the complainant while receiving the aforesaid payment. The receipt to the extent it is relevant reads as under:-
"Received with thanks from Mr. Sanjay Kr. Bharatiya a sum of Rs. 4,29,218/- (Rs. Four lacs twenty nine thousand two hundred and eighteen only) by pay order No. 704885 dated 18.5.12 for Rs. 4,15,000/- drawn on SBI, New Alipore Br and Rs. 14218/- in cash towards cost of flat being SSHA/5 and garage being No. SSHA/G/2 as remaining dues and other cost as below as per settlement in full and final subject to encashment of the pay order:-
Possession amount of flat Rs. 2,00,000/-
Cost of extra civil work (as settled) Rs. 50,000/-
Deposit after house tax Rs. 5,000/-
Extra electrical job Rs. 7,950/-
Price escalation (as settled) Rs. 1,00,000/-
Registration fee Rs. 30,876/-
Attornment inputs Rs. 35,392/-
Rs. 4,29,218/-
After paying of the above referred Rs. 4,29,218/- the complainant approached the concerned state Commission by way of a consumer complaint alleging therein that:
(1) the appellant had forcibly collected Rs. 1,00,000/- towards escalation of price;
(2) the actual size of the flat was less by 98 square feet and
(3) the area of the car parking was deficient.
The appellant contested the consumer complaint denying recovery of any excess payment from the complainant. The alleged shortage in the area of the flat and the car parking was also denied.
The State Commission vide its impugned order dated 20.11.2017 directed as under:-
"On evaluation of materials on record, I find that the complainant being a 'consumer' as defined in Section 2(1)(d)(ii) of the Act hired the services of OP on payment of money but the OP has shown negligence or deficiency in services towards the complainant in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act and as such the complainant is entitled to reliefs as prayed for. Considering the facts and circumstances, I think a direction upon the opposite party to execute and register the Sale Deed and to handover completion certificate in respect of subject flat and the covered demarcated car parking space, to refund Rs.1,00,000/- received as escalation price of flat Rs. 50,000/- for extra civil work, Rs.1,50,000/- as shortfall of 98 sq. ft. will meet the ends of justice. Besides the same, the complainant is also entitled to compensation for harassment and mental agony which I quantify at Rs.1.00,000/-. As the situation compelled the complainant to come before this Commission, he is also entitled litigation cost which I assess at Rs.10,000/-.
Consequently, the petition of complaint is allowed on contest with cost of Rs.10,000/-.
The Opposite Party is directed to execute and register the Sale Deed and also hand over Completion Certificate in respect of flat and demarcated covered car parking space in favour of the complainant within 30 days from date. The OP is also directed to pay Rs.1,00,000/- received as escalation price + Rs. 50,000/- as extra civil work + Rs.1,50,000/- for less saleable area of 98 sq. ft. + Rs.1,00,000/- as compensation + Rs.10,000/- as litigation cost = Rs.4,10,000/- in favour of the complainant within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from date till its realisation."
Being aggrieved from the order passed by the State Commission appellant is before this Commission by way of this appeal.
As far as the area of the apartment is concerned a Court Commissioner was appointed by this Commission to visit the flat allotted to the complainant and measure its area. In his report the Court Commissioner has inter alia stated that there was no deficit in the area of the flat. Therefore, the grievance of the complainant with respect to area of the flat is not sustainable.
As regards the car parking, no size of the said car parking was given in the application form which the complainant has submitted to the appellant. But in the draft deed of conveyance the area of the car parking given it given as 96 square feet. Since there is no document to show that the appellant had agreed to provide a car parking having area of more than 96 square feet to the complainant it would be difficult to say that the area actually provided to him is less than what had been agreed between the parties. Therefore, the grievance on account of the alleged deficit in the area of the car parking is also not justified.
As regards the demand of Rs. 2,69,000/- on account of price escalation, a perusal of the application form itself would show that at the time of applying for the allotment itself the complainant had agreed that in case any major hike in the prices of construction materials such as cement, steel etc, the selling price maybe commensurately revised with prior intimation to the buyers. The case of the appellant is that there was a substantial increase in the cost of construction and cost of labour but they had asked allottees to share only a part of the increase by asking them to pay at the rate of Rs. 200/- per square feet. This was stated so in the letter dated 23.02.2012 whereby the complainant was required to pay a sum of Rs.6,23,218/- to the appellant. The complainant responded to the above-referred letter dated 23.02.2012 on 19.05.2012, stating therein that he was fully satisfied with the conditions quality etc. of the flat and he agreed to the conditions mentioned in the intimation letter dated 23.02.2012 in toto. Thus, by way of his letter dated 19.05.2012 the complainant accepted the demand on account of price escalation ar the rate of Rs. 200/- per square feet amounting to Rs. 2,69,000/-.
As regards cost of extra civil work, though the details of the alleged extra civil work have not been given in the written version filed by the appellant, the fact remains that the complainant by letter dated 19.05.2012 agreed to pay the said cost of extra civil work when he expressly stated that all the conditions mentioned in the letter dated 23.02.2012 were acceptable to him in toto.
Even after accepting the demand raised vide letter dated 23.02.2012 the complainant negotiated with the appellant and paid only a sum of Rs. 4,29,218/- to the Appellant against the demand of Rs. 6,23,218/-. In the hand-written receipt it has been clearly stated that the payment of Rs. 4,15,000/- by way of pay order and Rs.14218/- in cash was made by the complainant as the remaining dues and other cost as per settlement in full and final, subject to encashment of the pay order. This receipt clearly shows that there had been a settlement between the parties whereby the complainant agreed to pay to the appellant and the appellant agreed to accept a sum of Rs.4,29,218/- against the demand of rupees 6,23,218/- contained in the letter dated 23.02.2012. Therefore, the complainant cannot be allowed to have grievance with respect to the price escalation and the cost of the extra civil work in his flat.
For the reasons stated herein above, the state commission, in my opinion, was not justified in directing appellant to refund Rs. 1,00,000/- received as escalation price, Rs. 50,000/- received for extra civil work and Rs. 1,50,000/- on account of shortfall in the area of the flat. Consequently there would be no justification even for awarding any compensation to the complainant who had received possession of the allotted flat from the appellant before instituting the consumer complaint.
For the reasons stated hereinabove the impugned order cannot be sustained and is set aside. The consumer complaint consequently stands dismissed with no orders as to costs. However, the sale deed unless already executed shall be executed within two weeks from today.