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2007 DIGILAW 333 (CAL)

PRITHWISH CHANDRA BHATTACHARYA v. RUBI MUKHERJEE

2007-05-04

BHASKAR BHATTACHARYA, PRAVENDU NARAYAN SINHA

body2007
BHATTACHARYA, J. ( 1 ) THIS first appeal is at the instance a defendant in a suit principally for recovery of money and is directed against the judgment and decree dated April 18, 2000 passed by the learned Civil Judge, Senior division, 9th Court, Alipore, District South 24 Parganas in Title Suit No. 76 of 1995 thereby passing a money decree in respect of Rs. 2,62,499/- with further direction to pay compensation to the plaintiff for giving lesser amount of 384 square feet of car parking space at the rate at which the plaintiff transferred similar car parking space to one Dr. S. K. Biswas. The learned trial Judge further directed the defendant to pay interest at the rate of 15% per annum on the total decretal sum from the date of institution of the suit till actual payment. ( 2 ) BEING dissatisfied, the defendant has come up with the present appeal. ( 3 ) THE plaintiff filed the previously mentioned Title Suit No. 76 of 1995 thereby basically claiming recovery of money amounting to Rs. 13,29,662/- with further prayer of permanent injunction restraining the defendant and his men and agents from interfering with or disturbing the possession of the plaintiff in the suit roof fully described in schedule "b" annexed to the plaint. ( 4 ) THE case made out by the plaintiff may be epitomised thus : (a) The mother of the plaintiff was the owner of premises No. 196a, Sarat Bose Road, Calcutta 29 (hereinafter referred to as the suit premises ). The defendant was known to the mother of the plaintiff, since deceased, and due to such acquaintance, he requested the mother of the plaintiff to permit him to demolish the old building and to raise a new building thereon through him. It was also represented by him that he had made a mark in the field of development and had constructed various properties and the mother of the plaintiff was influenced by the representation of the defendant. (b) Pursuant to such representation and after much discussion, the mother of the plaintiff finally agreed to develop the property and the arrangement was recorded in writing by an agreement dated August 6, 1989 According to the said agreement, the defendant was under the obligation to demolish the old structure and to raise a four-storeyed building thereon according to the sanctioned plan. The proposed building would have seven of flats and such construction should be for residential purpose only. According to the agreement, the owner was to be allotted 45% of the total super-built area whereas the balance 55' % would vest in the developer. It was, further stipulated that the roof would be exclusively enjoyed by the owner. (c) After the completion of the new building, the mother of the plaintiff was allotted flat No. 5 on the third floor, flat No. 7 and flat No. 8 on the forth floor of the said building constructed in the premises and thus, the total super-built area of those three flats came to 3746 square feet. According to the plaintiff, her mother was entitled to a total constructed area of 4492. 8 square feet in terms of her 45% share. She was also entitled to 45% of the parking space, i. e. 912 square feet. (d) The plaintiff claimed that she was entitled to a further area of 748. 8 square feet and the car parking space of 497 square feet on the ground floccr of the building. According to the plaintiff, in case, the plaintiff was given lesser amount of area, the same should be compensated in terms of money at the rate of Rs. 1,200/- per square feet for residential area and rs. 685/- per square feet for the car parking space. (e) According to the plaintiff, she got a total amount of Rs. 3 lakh and therefore, a sum of Rs. 9,29,562/- was still due and payable from the defendant. In spite of repeated demands, the defendant having failed to pay the said amount, the plaintiff was entitled to get the said amount with interest at the rate of 15% per annum. ( 5 ) THE suit was contested by the defendant by filing written statement thereby denying the material allegations contained in the plaint and the defence of the defendant may be summed up thus : (a) The defendant specifically denied that the total area of the three flats allotted to the mother of the plaintiff was 3746 square feet as alleged and the measurement of those flats were much more and the plaintiff had deliberately shown less area to have more gain. (b) The 45% share of the order had already been settled and those could not be reopened after providing and accepting delivery of possession and that without challenging the same, the owner transferred other flat No. 5 on the third floor to a third party without the knowledge of the defendant. There was no allotment or condition that difference should be compensated or that Rs,. 1,200/- per square feet or Rs. 685/-per square feet for car parking space as falsely alleged. (c) The roofs could not be anybody's personal property in view of the existing law governing multi-storeyed building according to which it should remain as common for all the flat-owners and should be made for fixation of overhead reservoir, water tank, fittings, fixtures, or for affixing T. V. Antenna and for holding common functions. (d) According to the defendant, to cover up the lesser amount of the area, the plaintiff was entitled to the price of 640 square feet as costs of construction and as the owner she had already in addition to three flats received Rs. 3 lakh in cash as admitted by the plaintiff therefore, the defendant was entitled to get refund of the excess amount of about 640 square feet at the rate of Rs. 300/- per square feet for which a counter-claim was lodged by the defendant. ( 6 ) THE learned Trial Judge, on consideration of the materials on record came to the conclusion that the plaintiff was entitled to get a decree for Rs. 2,62,499/- for the lesser amount of 749 square feet of constructed area at the rate of Rs. 751/- per square feet on the basis of admission of the defendant as appearing from Exhibit 3. The said amount came to Rs. 5,62,499/- on calculation. The plaintiff having already received a sunn of rs. 3 lakh, she was entitled to the balance amount of Rs. 2,62,499/- with interest at the rate of 15% per annum as written in the agreement, the learned Trial Judge further held that in addition to the previously mentioned amount, for supplying lesser amount of car parking space of 384 square feet, the defendant was liable to pay a further sum at the rate to be calculated on the basis of deed on conveyances by which the plaintiff had transferred the car parking space to Dr. S. K. Biswas. S. K. Biswas. The amount of interest at the rate of 15% per annum was payable from the date of filing of the suit till that date of recovery. ( 7 ) BEING dissatisfied, the delendant has preferred the present first appeal. ( 8 ) AFTER hearing Mr. Chatterjee, the learned Senior Advocate appearing on behalf of the appellamt and Mr. Basu the learned Advocate appearing on behalf of the respondent and after going through the materials on record, we find that so far the amount calculated by the learned Trial judge for giving lesser amount of the constructed space, the Court has relied upon the admission of the defendant appearing from exhibit-3, exhibit-3 is a document written by the defendant himself showing the calculation of the total amount payable by the defendant to the plaintiff for giving lesser amount of constructed area. Jt appears from the said document that the area has been mentioned as 749 square feet and the amount has been calculated at the rate of Rs. 751/- per square feet. The said document was marked exhibit at the instance of the plaintiff and in cross-examination, specific suggestion was given to her that the said document was not written by the defendant at all. The plaintiff, however, denied such suggestion. Curiously enough, the defendant, in his examination-in-chief, did not utter a single word about the said exhibit-3 and in cross-examination, was constrained to admit that the said document was written by him. He, however, did not give any explanation as regards the calculation indicated in exhibit-3. In such a situation, in our view, the I earned Trial Judge was quite justified in relying upon the said exhibit for the purpose of calculation of the amount payable by the defendant to the plaint iff for giving delivery of smaller amount of constructed area than the one mentioned in the agreement. We, therefore, find no reason to interfere with the finding recorded by the learned Trial judge on that question. ( 9 ) AS regards the amount of car parking space calculated by the learned Trial Judge, we are, however, unable to accept the same. It is apparent from the evidence on record that there are eight car parking spaces, out of which the plaintiff got three and the defendant retained the balance five. Admittedly, each car parking space consists of 134. It is apparent from the evidence on record that there are eight car parking spaces, out of which the plaintiff got three and the defendant retained the balance five. Admittedly, each car parking space consists of 134. 5 spare feet and for 8 car parking spaces, the total area comes to 1076. 46 square feet 45% of the aforesaid area comes to 605 square feet whereas the plaintiff has received three car parking spaces and the total area of those spaces comes to 403. 5 square feet. Therefore, the plaintiff has received less amount of area of 201. 5 square feet. ( 10 ) THE next question is what should be the price of the car parking space. Since the car parking space does not con'tain any structure, the land value of the building should be the price of the car parking space. It appears from the agreement betweerr the parties that the total area of the land covered by the premises was 4 ccottah 13 chittaks and 29 square feet which is equivalent to 3494 square feet. 1/8th share of the said amount of land was sold at the price of Rs. 1,46,000/- and thus, the total price of the land was Rs. 1,46,000/- x 8 = Rs. 11,68,000/ -. If we divide Rs. 11,68,000/-by 3494, the price of the land per square feet comes to Rs. 334. 28p. If we multiply 201. 5 square feet by Rs. 334. 28p. , it comes to Rs. 67,357. 42p. ( 11 ) THEREFORE, for the car parking space, the plaintiff is entitled to a further amount of Rs. 67. 357. 42p. We have already pointed out that the learned Trial Judge did not calculate the amount but directed that the compensation for giving lesser amount of car parking space should be calculated at the rate, the plaintiff sold the similar car parking space to Dr. S. K. Biswas. We are informed by the learned Counsel for the parties that the plaintiff sold 275 square feet of the car parking space to Dr. Biswas at the price of Rs. 1,20,000/- and the rate comes to Rs. 436. 36p. per square feet. S. K. Biswas. We are informed by the learned Counsel for the parties that the plaintiff sold 275 square feet of the car parking space to Dr. Biswas at the price of Rs. 1,20,000/- and the rate comes to Rs. 436. 36p. per square feet. ( 12 ) WE, however, do not approve the aforesaid approach of the learned Trial Judge as the land value is available from the agreement between the parties itself and the Court could not rely upon a document of the plaintiff with a third party when such document had not been even exhibited in this case. ( 13 ) WE, accordingly, dispose of this appeal by approving the calculation of the learned Trial Judge as regards the lesser amount of the constructed area and by directing that the lesser area of car parking space given to the plaintiff is 201. 5 square feet and should be compensated by paying a sum of Rs. 67,357. 42p. ( 14 ) SO far the first part of the decree is concerned, the appellant has already deposited the amount immediately after filing of this appeal in terms of the order passed by a Division Bench of this Court by which the said Bench directed the executing Court to invest the amount in a short-term deposit in any nationalised bank. The plaintiff will be entitled to withdraw the said amount with the accrued interest thereon. ( 15 ) AS regards the amount of Rs. 67,357. 42p. for the car parking space, we direct the defendant to pay the said amount to the plaintiff within one month from today with interest at the rate of 15% per annum from the date of the institution of the suit tilldecember 31, 1999 and at the rate of 10% per annum from January 1, 2000, till the date of payment. ( 16 ) THE appeal is, thus, allowed in part. The judgment and decree passed by the learned Trial Judge is modified to the extent indicated above. There will be, however, no order as to costs.