In consumer housing disputes, a claim for compensation for shortfall in area or delayed possession requires clear evidence of the breach of terms and can be denied when material documents, such as supplementary agreements, are withheld or not produced, making adjudication on factual disputes impossible.

ORDER

MRIDULA ROY, MEMBER

01) The instant petition of complaint filed by Smt. Maya Agarwal alleging deficiency in providing housing construction service against the Opposite Party B.C.D.K. Associates represented by its partners namely Bidyut Kr. Ghosh, Chandana Ghosh, Kousik Ghosh & Dilip Das.

02) Case of the complaint, in brief, is that, the Complainant being owner of piece of land lying and situated at 12N/1, Block A, New Alipore, Kolkata-700053 entered into a development agreement with the Opposite Party on 03.06.2013 under certain terms and conditions for development of the said piece of land by constructing one G+3 storied building to be constructed by the Developers consisting 12 units of flats out of which 5 flats and 720 sq. Ft. Area at Ground floor would be under the owner`s allocation. Accordingly, a power of attorney was executed by the Complainant in favour of the Developers. Subsequently, after completion of the said building the Developers handed over possession of the Land Owner`s share on 27.01.2019. It is stated by the Complainant that the space provided to the Complainant on the ground floor is 400sq.ft. instead of 720 sq.ft. and accordingly, the value of 320 sq.ft. (short-fall area) as calculated to be Rs.9,60,000/- which, according to the Complainant to be paid by the OPs. It is further stated by the Complainant that the Developer was liable to handover the Owner`s allocation portion within 18 months from the date of execution of agreement but the OP failed to hand-over the same within the stipulated period, rather, handed over the same on 27.01.2019 for which the OPs are liable to pay Rs.18,56,000/- as compensation. Accordingly, the Complainant has prayed for a direction upon the OPs to pay Rs.18,56,000/- to the Complainant for delay in delivery in possession, Rs.9,60,000/- with interest, Rs. 12,00,000/- with interest as to compensation, to appoint one Commissioner so that the CC be delivered to the Complainant by the OPs and to pay Rs. 30,000/- towards cost of litigation.

03) The OP appeared and contested the case by filing written objection stating, inter alia, that after initiation of the work for construction the owner and her husband started demanding other flats by altering the said allocation which was agreed upon earlier. Further, due to physical location of the said plot of land being developed even after the rain water used to get logged for a long period of time the progress of construction was being delayed. Subsequently, as and when the said work of construction was on the verge of completion the Complainant and her husband entered into a supplementary agreement which was executed by the Parties to this case. It is further stated by the OPs that as per terms of the supplementary agreement that the owner`s allocation had been changed and the same was admitted. It is further stated by the OPs that as and when the construction work was over the husband of the Complainant took possession of the said allocation but the Complainant was reluctant to receive the possession letter from the OPs and even tried to restrain the OPs to free ingrace and egrace to the said premises. It is specifically mentioned in the written version that though in the development agreement it was mentioned that the Owner`s allocation would be handed over to the Owners within 18 months from the date of agreement but the Complainant did not mention that a supplementary agreement has been executed by and between the Parties vide terms of which the Owners allocation portion has been altered for which a considerable spell of time was required to hand over the altered owners allocation. Accordingly, the OPs pray for dismissal of the complaint case with exemplary cost.

04) Parties adduced evidence on affidavit.

05) The