LAW POINT
Pocket Witness –Commission cannot take a decision upon the pocket witness submitted by the Complainant himself.

JUDGMENT

Samiksha Bhattacharya, Presiding Member.—The instant complaint case has been filed under section 17(1)(a)(i) of the Consumer Protection Act 1986 alleging deficiency in services against the OPs.

2. Facts of the case, in brief, are that the Complainant purchased a separate self-contained flat mentioned in the schedule “A” of the petition of complaint by virtue of execution and registration of the Deed of Conveyance by the OPs upon receipt of entire consideration on 31.03.2008. The possession of the flat has been provided to the Complainant as per contractual agreement executed by the parties along with completion of building in connection with the section 403 of the KMC Act. After getting the possession of the flat in question as well as car parking space, the Complainant has discovered that the area mentioned in the Deed of Conveyance are not in accordance with the actual measurement of the flat and in such circumstances to find the authenticity of the measurement the Complainant engaged an empanelled Valuer of Calcutta High Court, namely Shri Manojit Dey who upon physical verification of measurement of the flat and the car parking space found out the anomaly in the measurement and it is apparent in the report given by the Valuer and marked as Annexure “A” with the petition of complaint. The Complainant has also alleged that even after obtaining the completion certificate in respect of construction as per sanctioned plan the OPs started construction of rooms to be used as servant quarters at the back of the premises. The OPs also converted the service store area into a commercial space and thereby causing serious harm to the peaceful residential atmosphere of the premises. At the time of registration of the said flat the OPs assured verbally that they would compensate the delay caused to the Complainant in getting the delivery of the flat at a belated stage long after the contractual time limit but till date the OPs have not done anything or have not paid any amount to compensate such inordinate delay in handing over the possession for which the Complainant had suffered huge loss. At the time of inspection of the Empanelled Valuer it was also detected that the workmanship of the construction of the flat at the premises are much below the standard quality and it nothing but an unfair trade practice for which the Complainant is entitled to adequate compensation. Hence, the petition of complaint praying for direction upon the OPs for appropriate allocation/demarcation of car parking space at the ground floor of the said premises so that the cars of the different flats can be parked easily without disturbing the other allottees, to set at right the construction of the flats by patch work so that the sub-standard workmanship can be rectified, to keep open space of the premises as per sanctioned plan, not to use any space for commercial purposes. Complainant has also prayed for compensation to the tune of Rs.55,00,000/- for delay in delivery of the possession of the flat, for providing lesser area of the flat and car parking space along with refund of the amount by the OPs so taken by them for sinking fund along with litigation cost of Rs. 14,000/-.

3. OP NO. 1 did not file any written version. So the matter was heard ex parte.

4. The OP No. 2 appeared before this Commission and contested the case by filing their written version. In their written version OP No. 2 denied all material allegations, inter alia, stated that the dispute arose out of purchase of an immovable property/flat. The immovable property / flat is not a goods within the meaning of section 2(7) of the Sale of Goods Act 1930 and as such the flat cannot be the subject matter of complaint before the Commission under Consumer Protection Act, 1986. The Complainant arbitrarily valued the complaint at Rs. 55,14,000/- without any break up of such valuation. The pecuniary jurisdiction of the State Commission cannot be invoked by making absurd valuation without an iot