Mrityunjaya Chakravorty vs Sukanta Das

SH . Mrityunjoya Chakraborty, the complainant entered into an agreement for purchase of a flat on 27.01.2011 with Sh. Sukanta Das - OP. In the agreement it was stipulated that the flat on the ground floor measuring 340 sq. ft. @ Rs. 1,000/ - per sq. ft. total being Rs. 3,40,000/ - would be sold to the complainant. The entire consideration was paid and the conveyance deed was registered and executed on 18.11.2011.

IT transpired that the flat measured 327 sq. ft. which was less by 13 sq. ft. The petitioner entered into the flat after 4 months and found that the flat was not constructed properly. It was damped due to soaking of water and the inside wall of the flat stood cracked due to use of poor quality building materials for construction. The request made by the complainant to rectify the defects fell on the deaf ears.

THE complainant filed the complaint before the District Forum. The Opposite Party denied all the allegations. The District Forum allowed the complaint. The respondent was asked to pay Rs. 13,000/ - and repair the defects. Costs of Rs. 5,000/ - as compensation and costs of litigation to the tune of Rs. 2,000/ - were also imposed. It was directed that the defects should be rectified within one month otherwise the OP was further directed to pay a sum of Rs. 100/ - per day as interest from the date of the order passed by the District Forum on 09.10.2012 till its realization, out of the said amount, 50% will go to the complainant and 50% will go to the State Consumer welfare Fund. Aggrieved by that order, the Opposite Party filed an appeal before the State Commission. The State Commission accepted the appeal partly. The State Commission directed that petitioner is entitled to Rs. 13,000/ - and compensation in the sum of Rs. 5,000/ - within one month from the date of order dated 14.06.2013. The State Commission found that no cogent evidence was adduced to show that the construction of the flat was defective. The OP had claimed Rs. 60,000/ - which according to him was spent on extra work done by him at the instance of the complainant. There was no mention regarding the extra work in the agreement, therefore, request of the OP was also denied.

WE have heard the complainant in person. The respondent did not appear despite service. Dasti notice served upon him shows that he was served on 12.09.2014.

WE have heard the petitioner/complainant in person. There appears to be no conflictions about the fact that the petitioner got 13 sq. ft. less than the agreed area. Both the Fora below have decided in tandem that the petitioner is entitled to have Rs. 13,000/ - from the OP. However, we find that no interest was granted by both the Fora. We modify the orders and direct the OP to pay Rs. 13,000/ - with interest @ 9% from the date of payment of the said amount i.e. from 27.01.2011 till its realization.

THE petitioner has invited our attention towards the Engineer''s report. Sh. Pradip Kumar Roy gave the following report: - "ABSTRACT ESTIMATE FOR REPAIRING THE LEAKAGE OF EFFECTED AREA FROM 1ST FLOOR and OTHER MINOR PATCH PLASTERING WORK AT GROUND FLOOR OF SHRI MRITYUNJOY CHAKRABORTY AT PREMISES NO. -4, KCC MITRA STREET, BELGHORIA, KOLKATA -56 OF DAG NO -1141, KHATIAN NO -734, MOUZA -BELGHORIA, JL NO -3, TOUZI NO. -178, RS NO -17 UNDER KAMARHATI MUNICIPALITY, WARD NO -26, HOLDING NO -422, PO and PS - BILGHORIA, DT -24 PARGANAS(N).

A) Total effected leakage area: 5 ''3 ''''+3 ''6 ''''=8 ''9 ''''by 3 ''5 ''''+4 ''6 ''''=8 ''11 ''''say 9 '' -0 ''''= 81 sft.

(1) Shifting of 1st floor owner for 7 -days LS Rs. 7000.00

(2) Labor charges for dismantling of 1st floor and disposed of rubbish LS Rs. 2500.00

(3) Waterproofing of total areas 81+15% extra For skirting=94sft.@Rs.25/ - Rs. 2350.00

(4) Tiles fixing with materials and labor approx91sft @Rs.80/ - Rs. 7280.00

(5) Ground floor roof damaged area plastering i/c old one Removing , rubbish shifting and painting approximately 100 sft @ Rs.50/ - Rs. 5000.00

(6) Total patch work of ground floor damp walls at Balcony and rooms LS Rs. 3000.00

Total Amount for the rectification: Rs.27,130.00 ''''

THE said report is not reliable. The date on the report is conspicuously missing. There is no exhibit. There is no mention of this report in the complaint or the orders passed by the Fora below. It appears that this is a new evidence for which we would not take any notice.

WE have thoroughly perused the judgment of the District Forum. The findings given by the District Forum are vague and evasive. The relevant para is reproduced here as follows: - "Regarding the defect in the construction of the said flat, i.e. the cracks showed in the walls and roof of the said flat, the O.P. totally denied the said matter. According to him, the flat of the complainant situated in the ground floor, so when the other flat owners of the 1st floor never alleged any complain regarding the construction then how can it be possible that only the flat on the ground floor suffered from cracks in the roof and the wall inside the said flat. But it is not the logical defence. So, if there is any defect in the roof and in the inside wall of the said flat, the O.P. is liable to repair the same."

Consequently, we are unable to place much reliance on this document, which appears to have been produced before us at the eleventh hour.

FURTHERMORE the case of the petitioner is contradictory. The verbatim prayer made by the petitioner runs as follows: - "That I want compensation from Promoter Rs. 90,000/ - (Rupees Ninety thousand) only for solve the problem I pray to Hon''ble Forum please be relief me by your Judgment or may deem fit or proper.

However, Mr. Pradip Kumar Roy reports that the total amount for rectification of the defects is Rs. 27,130/ - . The petitioner is not entitled for any amount for rectification of the defects.

WITH above modification i.e. respondent/OP is directed to pay Rs. 13,000/ - with interest at the rate of 9% p.a. from the date of its receipt from 27.01.2011 till realization. The compensation awarded by the State Commission in the sum of Rs. 5,000/ - is upheld. The said amount be paid within 45 days from the receipt of the copy of this order otherwise the entire amount including compensation will carry interest at the rate of 12% after the expiry of the said 45 days till realization.