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M/s. Shrachi Leathertex Pvt. Ltd. v/s Sk. Qumru Alam & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    First Appeal No. A/1106/2014

    Decided On, 12 July 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Appellant: Barun Prasad, Subrata Mondal, Sovanlal Bera , Advocates. For the Respondents: Imtiaz Belal, Rama Acharya, Advocates.



Judgment Text

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of opposite party no. 1 M/s. Sharchi Leathertex Pvt. Ltd. to impeach the final order/judgment dated 13th March, 2014 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, ‘Ld. District Forum’) in Consumer Complaint No. 428 of 2010. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent no. 1, SK Qumru Alam under Section 12 of the Act with the direction upon the opposite party no. 1/appellant to take all steps for measuring the flat by an Architect as mentioned in the agreement for sale in presence of complainant with one month from the date of order positively and that measurement must be signed by both the parties and as per report of the architect, and on payment of balance consideration amount the Sale Deed in respect of the flat will be executed.

The respondent no. 1 herein being complainant lodged the complaint before the Ld. District Forum asserting that an agreement for sale was executed between him and opposite party no. 1 to purchase of a self-contained flat measuring about 1357 sq. ft. super built-up area being Flat No. 5E (previously numbered as 6) in the 5th Floor lying and situated 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 totalling a sum of Rs. 20,73,100/-. The complainant has stated that he has paid almost entire consideration price except the balance amount of Rs. 71,785/- including the due amount of Rs. 51,785/- for the flat and Rs. 20,000/- for covered garage. On 01.08.2005 the developer delivered the possession to him. However, after taking possession he found that the measurement of the flat is 1050 sq. ft. instead of 1537 sq. ft. super built-up area. Time and again he requested opposite party no. 1 to measure the said flat but it went in vain. Hence, the respondent no. 1 approached the Ld. District Forum with prayer for several reliefs including – (a) a direction upon the opposite parties to take steps to register the Deed of Conveyance on actual measurement of flat; (b) to pay Rs. 1,00,000/- as compensation for harassment and mental agony and (c) litigation cost etc.

The appellant being opposite party no. 1 by filing a written version resisted the claim made by the complainant and it has been stated that it is not possible to come to a definite conclusion regarding the question of shortcoming of the measurement in the flat and the same is required to be measured by a survey passed engineer.

After assessing the materials on record, Ld. District Forum by the impugned order allowed the complaint against appellant/opposite party no. 1 and dismissed against others directing the opposite party no. 1/appellant to take up steps for measuring the flat by an Architect as mentioned in the agreement. Challenging the said order, the opposite party no. 1 has come up in this Commission with the present appeal.

Undisputedly, an agreement for sale was entered into by and between the appellant and respondent no. 1 in respect of purchase of a flat measuring about 1537 sq. ft. super built-up area being Flat No. 5E (previously numbered as Flat No. 6) on the 5th Floor and a garage measuring about 150 sq. ft. on the Ground Floor lying and situated 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 aggregating a sum of Rs. 20,73,100/-. It also remains undisputed that the respondent no. 1/complainant has paid almost the entire consideration amount and an amount of Rs. 51,785/- for flat and Rs. 20,000/- for the garage totalling an amount of Rs. 71,785/- is due and payable by respondent no. 1. Admittedly, the appellant delivered the possession of the subject flat to respondent no. 1 on 01.08.2015.

The whole dispute centres around regarding the measurement of the subject flat. The respondent no. 1 has alleged that the area of the flat is 1050 sq. ft. instead of 1537 sq. ft. super built-up area which he noticed after getting possession of the same. In the written version, the appellant/developer has also stated that unless a measurement is taken place it is difficult to say about the allegation levelled by the respondent no. 1 with regard to measurement of the flat.

Therefore, the measurement of the flat in question can only resolve the dispute between the parties because it is the respondent no. 1 who has specifically alleged that instead of 1537 sq. ft. super built-up area, he has been provided with a flat measuring about 1044 sq. ft. super built-up area. Since the rate of flat is Rs. 1,300/- per sq. ft., such a huge difference cannot be resolved without appointing an Engineer Commissioner.

In this regard, it would be pertinent to reproduce the Clause 12.5 of the Agreement by and between the parties-

'12.5 In case upon completion of construction for the said unit and Housing Complex the super built-up area in respect of the said unit exceeds the area specified therein the purchaser shall have to make payment of additional amount to the developer and if the area becomes less than the area allotted to the said purchaser the developer shall refund the amount proportionately to the differential area to the said purchaser and in this regard the certificate of the Architect as regards the super built-up area of the said complex shall be final and conclusive and none of the parties shall be entitled to raise any dispute with regard thereto'.

The Ld. District Forum by the impugned judgment/final order directed the opposite party no. 1/appellant to take all steps to measure the flat by an Architect as mentioned in the agreement for sale. However, without complying with the said order, the opposite party no. 1 has come up in this Commission with the present appeal. In accordance with Clause 12.5 the developer on his own should have measured the flat in presence of complainant/respondent no. 1. Therefore, by order dated 29.09.2015 this Commission while entertaining the appeal did not remand the case to the Ld. District Forum and proposed to dispose of the appeal by treating the evidence to be forthcoming with regard to appointment of Engineer Commissioner as an additional evidence.

Accordingly, Mr. S.K.Moniramka, Architect was asked to carry out the measurement of the flat but the said architect refused to accept the writ simply on the ground of want of staff. Subsequently, on the prayer of respondent no. 1, an Engineer Commissioner named Dr. Sujoy Kumar Biswas was appointed from the panel of the Commission. After inspection of the premises, the Engineer Commissioner submitted his report which speaks that the measurement of the carpet area of the flat is 972 sq. ft., covered area works out to be 1091 sq. ft. and the super built-up area works out to be 1215 sq. ft. In the report, Ld. Engineer Commissioner has recorded that as per standard market practice, super built-up area was considered at 25% or 1.25 times of the carpet area. Under special circumstances, for proper adjudication, the additional evidence of Engineer Commissioner was recorded to avoid further delay of deposal of the dispute pending for long eight years.

Mr. Barun Prasad, Ld. Advocate for the appellant has submitted that the report does not contain any filed note and as such no evidentiary value can be attributed to the same. He has also submitted that the Ld. Engineer Commissioner in his report submitted regarding covered area and subsequently super built-area and as such there is anomaly in submitting the report for which the said report cannot be relied upon.

Mr. Imtiaz Belal, Ld. Advocate for respondent no. 1 vehemently opposed the submission of Ld. Advocate for the appellant and has contended that his client is only interested to ascertain actual measurement of the flat as per agreement and to get the property registered in his favour in accordance with the said measurement and the same should have been done by the appellant in accordance with Clause 12.5 of the agreement and now, when the Engineer Commissioner has specifically mentioned the measurement of the carpet area is 972 sq. ft. and the super built-up area is 1215 sq. ft. after considering additional 25% of the carpet area there is hardly any scope to raise any dispute.

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 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. 4,18,600/- subject to payment of balance consideration amount of Rs. 71,785/- and after deduction of the said amount, the amount payable by 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 pas

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s 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 judgment/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 Respondent No. 1/Complainant within thirty (30) days from date otherwise the amount shall carry interest @ 9% p.a. from the date till its realisation. With the above observations and directions, the instant appeal stands disposed of. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
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