For M/s Rathore Builders : Mr. Birendra Kumar Mishra, Advocate Ms. Poonam Atey, Advocate For Hansa H. Agarwal : Mrs. K. Radha, Advocate HON’BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainant who is the respondent in FA/680/2013 and appellant in FA/722/2013, entered into an agreement with the appellant in FA/680/2013 who is the respondent in FA/722/2013 for purchase of a residential flat admeasuring 850 sq. ft. of built-up area (inclusive of the balcony area). The possession, as per the agreement executed between the parties on 11.11.1995, was to be delivered to the complainant by December 1995. The possession however, was not delivered by December 1995 whereupon a police complaint was lodged by the complainant against the builder. The parties then executed a supplementary agreement dated 02.01.1997 whereby the builder agreed to deliver possession by 30.06.1997 and also agreed to reimburse rent with effect from 01.01.1997. The possession of the flat was delivered to the complainant on 27.11.1997. The case of the complainant is that the actual built-up area of the flat, on measurement, was found out only 704 sq. ft. and thus, the area actually provided was less by 146 sq. ft. The complainant also alleged that the builder had not provided municipal water nor had he provided adequate sewerage facilities as a result of which, he was incurring expenditure of Rs.150/- per month on obtaining potable water from outside and the flat buyers had to incur expenditure of Rs.5,00,000/- for overhauling sewerage system and for getting the water connection which resulted in every flat owner contributing Rs.20,000/- for this purpose. The complainant therefore, approached the concerned District Forum by way of a Consumer Complaint claiming (i) the compensation for the short area delivered to him (ii) compensation for the delay in delivery of possession as well as the compensation for not providing potable water and adequate sewerage. 2. The complaint was resisted by the builder which denied any shortage in the built-up area of the flat delivered to the complainant. It was also stated that as per the supplementary agreement, the possession was to be delivered by 30.06.1997 and since possession could not be delivered by that date, alternative accommodation was duly provided to the complainant. As regards sewerage facility, it was stated in the written version filed by the builder that since unauthorized construction was carried out by the flat owners, the builder could not get the requisite Occupancy Certificate as well as regular water and sewerage connection. 3. The State Commission partly allowed the Consumer Complaint and directed as under: Opponent/Builder is hereby directed to pay to the Complainant an amount of 1,67,900/- together with interest thereon @ 18% p.a. with effect from 27th November, 1999 till its realization. Rest of the claims of the Complainant stands dismissed. Opponent/Builder shall bear its own costs and pay costs of 25,000/- to the Complainant. 4. Being aggrieved from the order passed by the State Commission, both the parties are before this Commission by way of these cross-appeals. 5. As regards the delay in delivery of possession, it is not in dispute that as per the original agreement executed between the parties on 11.11.1995, possession was to be delivered by December 1995. It is also not in dispute that the possession was not delivered by December 1995 and therefore, a supplementary agreement was executed whereby the complainants agreed to grant extension till 30.06.1997. A perusal of clause 4 of the supplementary agreement would show that on the request of the builder, the complainant agreed to the extension of time on the condition that the builder would reimburse her rent for the period from 01.01.1997 until the date of delivery of possession. Thus, the complainant, while granting extension till 30.06.1997, did not insist upon any compensation for the period from January 1996 to December 1996 and agreed to grant such extension if rent for the period from January 1997 till the date of delivery of possession was paid to him. The learned counsel for the complainant submits that the complainant had no option but to agree to the aforesaid term since the possession was not being delivered to him by the builder. However, I find no such averment in the Consumer Complaint. In para 2(g) of the complaint, it was specifically stated that a representative of the builder was summoned to the Police Station where he agreed to deliver possession on or before 30.06.1997. It is thus evident that the time till 30.06.1997 for delivery of the possession was given in a Police Station where the builder was not in a position to exert any kind of pressure upon the complainant. In any case, there is no averment in the Consumer Complaint that the complainant was coerced into signing the supplementary agreement or that the possession having been delayed, he was left with no option but to agree to the terms dictated by the builder. Therefore, it would be difficult to say that the supplementary agreement was executed under any kind of pressure or coercion. The complainant therefore, was entitled to rent only for the period from January 1997 as per the supplementary agreement executed between the parties. I have no hesitation in holding that the complainant had given up his right to claim compensation for the delay in delivery of possession for the period from January 1996 to December 1996 and had agreed to take such compensation or an alternative accommodation from the builder only for the period from 01.01.1997. 6. As far as shortfall in the area is concerned, a perusal of the report of the Consultant would show that the Consultant, on measurement, found that the built-up area of the flat was only 704 sq. ft. No evidence in rebuttal having been led, I see no ground to disbelief or reject the report of the Consultant and accordingly, hold that the built-up area of the flat delivered to the complainant was only 704 sq. ft. The learned counsel for the builder submits that the built-up area measured by the Consultant does not include balcony area whereas, as per the agreement between the parties, the built-up area was to include the balcony area. My attention has been drawn to the Certificate of Area dated February 28, 2000. It is not possible to verify from this Certificate as to whether the built-up area reported by the Consultant namely Best Mulyankan Consultants Ltd. included the balcony area or not though the learned counsel for the builder submits that the lay-out plan prepared by the Consultant would itself show that the balcony area was not included in the built-up area. It is not possible for this Commission to go into this detail in the absence of the Consultant. Therefore, this is a matter which, in my opinion, needs to be dealt with by the State Commission in execution proceedings. If the State Commission, on examining the Consultant and considering his report after such examination, finds that the balcony area is not included in the built-up area reported by the Consultant, the balcony area will be ascertained and added to the built-up area reported by the Consultant. If there is no shortfall in the built-up area so arrived at by the State Commission, the complainant will be entitled to proportionate refund of the price of the flat paid by him to the builder alongwith interest on that amount @ 9% per annum from the date of institution of the Consumer Complaint till the date on which the payment in terms of the calculation made by the State Commission is actually made. 7. As far as the sewerage and potable water supply are concerned, it is evident from the written version filed by the builder that neither the sewerage nor potable water was provided. There is no evidence of any unauthorized construction having been made by the flat owners or such unauthorized construction having prevented the concerned authorities from issuing the requisite sewerage and water connection for the complex constructed by the builder. Therefore, the complainant, in my opinion, is entitled to the amount of Rs.20,000/- which he has claimed to be his share in the expenditure incurred on augmenting the water and sewerage facilities. 8. For the reasons stated hereinabove, the appeals are disposed of with the following directions: (i) The complainant shall not be entitled to any compensation for the delay in delivery of possession. (ii) The complainant shall be entitled to refund of the proportionate price of the flat if the State Commission, after examining the Consultant in terms of this order, comes to a conclusion that the actual built-up area of the flat delivered to the complainant inclusive of balcony area, is less than 850 sq. ft. (iii) The complainant shall be entitled to compensation quantified at Rs.20,000/- towards reimbursement of the expenditure incurred by him in augmenting the sewerage and water facilities. (iv) The complainant shall also be entitled to interest on the amount found payable to him @ 9% per annum from the institution of the Consumer Complaint till the date of payment. No order as to costs. |
