MRS. FIROZA KHATOON, PRESIDENT
The facts of the case are the opposite parties being developers entered into an agreement with the land owner/Tarakeswar Municipality to construct a multi-storeyed building. Therefore, the complainant no.1 on 14.11.2013 entered into an agreement for sale with the opposite parties and Tarakeswar Municipality to purchase one self contained flat on the 4th floor, bearing Flat no.F, having super built up area 462 square feet together with proportionate individual impartiable share of land beneath the said building mentioned in the First Schedule of the agreement including all rights of easement and quasi-easements with all amenities and facilities attached thereto or to be provided along with liabilities as stated in the Third Schedule of the agreement at a consideration of Rs.12,47,400/- (Rupees twelve lakh forty seven thousand four hundred) only.
Thereafter, the complainant paid the consideration amount on instalments and a deed of conveyance was executed and registered on 26.08.2020 in favour of complainant no.2 Sri Adrish Kumar Das, the son of complainant no.1 by the opposite parties.
According to the complainants as per agreement for sale for the year 2013 they agreed to purchase a flat measuring about 462 square feet @ Rs.2,700/- per square feet i.e. total price of Rs.12,47,400/- (Rupees twelve lakh forty seven thousand four hundred) only. But later, the complainants came to know that actual carpet area of the flat is 353 square feet with added additional common area 20% and therefore super built up area 520 square feet @ 2,400/- per square feet amounting to total price Rs.12,48,000/- (Rupees twelve lakh forty eight thousand) only.
However on 06.12.2021, the opposite parties finally agreed to impose only 31% which includes common and super built up area on the carpet area of 353 square feet totalling 463 square feet @ Rs.2,400/- per square feet. Therefore, the total price of the flat is Rs.11,11,200/- (Rupees eleven lakh eleven thousand two hundred) only whereas as per Deed of Conveyance dated 26.08.2020 the complainants paid excess of Rs.1,36,800/- (Rupees one lakh thirty six thousand eight hundred) only to the opposite parties.
It is alleged by the complainants that plumbing work, sanitation work, electric connection, lift installation, fire extinguisher are yet to be done by the opposite parties. The opposite parties have not yet delivered the possession of the flat neither granted any occupancy certificate. The complainants filed this case on the following prayers :-
- The extra/excessive amount to the tune of Rs.1,36,800/- (Rupees one lakh thirty six thousand eight hundred) only shall be refunded immediately with interest for delay in handing over the flat @ 12% per annum from the date of booking.
- Due to difference of standard of service which tantamount to deficiency of service is Rs.1,00,000/- (Rupees one lakh) only.
- For the incomplete works/deficiency in service and unfair trade practice the complainant has to incur a sum of Rs.50,000/- (Rupees fifty thousand) only towards the actual costs.
- For mental agony, the complainants have suffered a loss of Rs.50,000/- (Rupees fifty thousand) only.
- For legal and incidental expenses the complainant has to suffer Rs.15,000/- (Rupees fifteen thousand) only.
In spite of service of notices, both the opposite parties did not appear or contest the case.
In order to prove the case, complainant no.1 submitted evidence in the form of affidavit in chief and the documents submitted are marked Document No.1:- Agreement for sale dated 14.11.2013; Document No.2 :– Deed of conveyance dated 26.08.2020.
The complainant no.1 submitted evidence on oath for himself and on behalf of his son complainant no.2. In evidence he reiterated the fact narrated in the complaint application.
Complainant no.1 categorically alleged that the work of construction has not been fully completed yet and possession of the flat has not been delivered by the opposite parties.
Whereas, the contents of Document No.-2 clearly suggests that the opposite parties as developers, on the basis of the sanctioned building plan being No.681368 sanctioned by the Tarakeswar Municipality on 27.07.2012, has completed the construction of (G+9) multi-storeyed building known as “Tarakeswar Heights” and handed over the exclusive possession of specified allocated portion of the said building in favour of the ‘Tarakeswar Municipality’/ landowner by executing a Deed of Delivery of possession dated 13.03.2020. The purchaser i.e. complainant no.2 being satisfied with the construction of the flat in accordance with the plan, on payment of Rs.12,48,000/- (Rupees twelve lakh forty eight thousand) only purchased the flat mentioned in schedule ‘B’ of the Deed with entitlement of possession in khas etc. It is crystal clear from Document No.2 that at the time of execution of Deed of Conveyance dated 26.08.2020 the complainant no.2 received possession of fully constructed purchased flat and for such reason no prayer has been made by the complainants for delivery of possession of the flat or for completion certificate. Moreover, we find that the complainant no.2 as purchaser and complainant no.1 as witness signed in the Deed of Conveyance dated 26.08.2020.
Therefore, in view of section 91 of the Indian Evidence Act, the statement made by the complainants in their pleading and evidence shall be excluded by documentary evidence i.e. Document No.2.
Moreover, on execution of Deed of Conveyance dated 26.08.2020 between the complainant No.2 and opposite parties, the privity of contract with regard to the service ‘Housing Construction’ comes to an end.
Having considered the elaborate discussion made above we are of the opinion that the complainants are not consumers in terms of section 2(7) of the Consumer Protection Act, 2019 as such the case is not maintainable in the eye of law.
Therefore, no relief can be granted in favour of the complainants.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed ex-parte without cost.
Dictated and corrected by me
….............................
President
