Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This is an appeal filed by org. opponent against the judgement and award passed by District Consumer Forum, Thane in consumer complaint No.369/1999 decided on 17/11/2006. By the said judgement, District Consumer Forum directed to refund amount of `40,000/- for the complainants for giving lesser area of the flat (100 sq.ft.) than agreed by the parties in written agreement. District Consumer Forum also awarded `25,000/- as compensation to the complainants and directed that on default, amount of `40,000/- and `25,000/- shall carry interest @ 24% p.a., if not paid within one month. Hence, org. opponent has filed this appeal.
We are finding that the grievance of the complainants in the District Consumer Forum was simply in respect of lesser area of the flat than agreed in the agreement. Agreement of sale executed between the parties on record clearly stipulated that complainants/purchasers had agreed to purchase from the promoter and promoter had agreed to sell flat No.19 admeasuring 570 sq.ft. built-up area on the 3rd floor for the amount of `1,88,000/-. So, as per the agreement, it was the duty of the opponent/appellant herein to provide flat No.19 having built-up area of 570 sq.ft. However, it has been found that the area in possession of the complainants was 451 sq.ft. Two experts were examined. Complainants had filed affidavit of Shri P.V. Bhole and another affidavit of Shri Ashok Govind Nimak. Shri Bhole had been given interrogatory, but before he could give reply he expired. So, another affidavit of Shri Ashok Nimak was placed on record by the complainants to whom no interrogatories were served and he was not subjected to cross. From the affidavit of Shri Nimak, it is clear that the flat was having area of 451.98 sq.ft. in place of 570 sq.ft. Shri Bhole found that built-up area of the flat was 451.20 sq.ft. Whereas, Shri Nimak found that carpet area of the said flat was 376.65 and built-up area was 451.98 sq.ft. Relying on these two affidavits, District Consumer Forum came to the conclusion that appellant was guilty of deficiency in service and unfair trade practice so far as flat of the complainants/respondents herein was concerned. His flat was not having 570 sq.ft. built-up area as per agreement and therefore, for lesser area of 100 sq.ft. District Consumer Forum thought it fit to grant compensation of `40,000/- besides compensation of `25,000/- for mental harassment. In the totality of the circumstances, we are finding that the order passed by the District Consumer Forum is just, proper and it does not call for any interference in the order passed by the District Consumer Forum.
However, Advocate Mr.Patwardhan submits that in clause 3 of the agreement, it has been clearly mentioned that complainant/purchaser should not have any grudge if there was any deficient area of the flat than mentioned above because flat was being sold for lump sum amount. However, in para 2 of the agreement, it has been clearly mentioned that flat No.19 would be having 570 sq.ft. built-up area and it would be on the 3rd floor and it was being sold for price of `1,88,000/- . So, the price charged is for 570 sq.ft. built-up area flat, whether it is lump sum or otherwise. The flat was purchased by the flat purchaser for `1,88,000/- having 570 sq.ft. built-up area. This was averred and part of statement made by the builder/promoter in the written agreement and it is binding on him. The very fact that in clause no.3 he has incorporated certain conditions in his favour could not save him from the deficient service patently rendered by the appellant while giving possession of the flat to the respondent. Said clause would not come to the rescue of the appellant to get quashed the said order rightly passed by the District Consumer Forum. In the circumstances, we are finding that there is no merit in the appeal. As such, appeal will have to be dismissed. Hence, we pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
