This Consumer Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the Opposite Parties, and seeking possession of the Flat, refund of the excess deposited amount along with ancillary reliefs.

2.  The factual background, in brief, is that in August 2005, the Opposite Party/DLF launched the "Magnolias" project, which comprised 19 residential towers. On May 24, 2006, the Complainant applied for, and was allotted Apartment No. 2005, located on the 5th Floor of Tower No.20. The total sale consideration for the Apartment was Rs.4,52,62,500/- for a super area of approximately 545 sq.mtrs. (5875 sq.ft.) and built up area of approximately 480.30 sq.mtrs. (5170 sq.ft). The Complainant paid an Earnest Money deposit of Rs. 25,00,000/-based on DLF's assurance that possession of the Apartment would be handed over by May, 2009. On May 30, 2006, DLF sent the Apartment Buyer's Agreement (ABA) to the Complainant. The terms of the ABA were largely non-negotiable and heavily one-sided in favour of DLF. DLF retained the discretion to forfeit the Earnest Money if the Complainant failed to sign the ABA as presented. Under threat of cancellation of the allotment and forfeiture of the entire Earnest Money, the Complainant had no option but to sign the ABA. It is crucial to highlight that the Opposite Party applied for the Project sanction nine months after launching the Project, only on 29th June, 2006, and 13th October, 2006. The approval for the original plans was received much later, on February 27, 2007.  In keeping with the commitment that possession of the Apartment would be handed over by May 23, 2009, the Complainant paid 95% of the total consideration, amounting to Rs. 4.30 crores, by August 2008. However, one month before the committed date of delivery, the Opposite Party applied for an increase in the number of floors from 17 to 22/26 in different towers, and received approval for the same on 22nd September, 2009. This delay caused by DLF's expansion plans deferred the possession of the Complainant's Apartment. On April 20, 2012, DLF communicated a fit-out date to the Complainant.  Ultimately, possession was offered on November 28, 2012, with a gross delay of three and a half years. This communication was conditional, compelling the Complainant to accept possession under the condition of not disputing an increase in the super area, which was approximately 9% more than the original area. The super area of the Apartment increased by 528 sq.ft., making it 6403 sq.ft. from the original 5875 sq.ft. DLF demanded an additional amount of Rs. 39,60,000/- for the increased super area without providing any supporting details. The Complainant, having lost all faith in DLF, engaged a registered architect to measure the area, which turned out to be only 459 sq.mtrs. (4927 sq.ft.) compared to the allotted 480 sq.mtrs. (5170 sq.ft). Therefore, there was no justification for the DLF's demand of Rs. 39,60,000/-, and it has overcharged an amount of Rs. 18,22,500/-. Aggrieved with DLF's deficient service and unfair trade practices, the Complainant filed the present complaint.

3. In view of the aforesaid facts, the Complainants have prayed as follows - 

“a. Direct the OP to withdraw the letter dated 28.11.2012 vide which it has raised an additional demand towards the so called increase in 'super area' upon the Complainant;

 

b. Direct the OP to refund the amount for the plinth/built up area of 243 sq ft @ Rs.7500 per sq ft i.e. Rs.1822500/-, the built up/plinth area which does not exist, along with interest @ 18% per annum w.e.f. the date of payment till the date of realization of the said amount;

 

c. Direct the amount of Rs.4846875/-, illegally collected by OP DLF on account of 'Super area', along with interest @18% per annum w.e.f. the date of payment till the date of realization of the said amount;

 

d. Direct the OP to refund the cost of Parking i.e. Rs.1200000/- which has been illegally charged from the Complainant in absolute violation of the Haryana Apartment Ownership Act, along with interest @ 18% per annum w.e.f. the date of payment till the date of realization of the said amount;

 

e. Direct DLF to pay interest at the rate of Rs.18% p.a. on the total, amount paid by Complainant i.e. Rs. 4,29,99,375/- with effect from the date on which the stipulated period to hand over possession expired i.e. from May 2009 which is an amount of Rs.32041014/- till the date of filling of this complaint and further direct to pay @ 18% р.а. on the said amount of Rs.42999375/-till possession is handed over.

 

f. Direct DLF to hand over the possession of the apartment to the Complainant;

 

g. Direct DLF to remove the restriction of transferring/selling the property only to DLF and allow the Complainant to sell her apartment freely in the open market;

 

h. Direct DLF to pay a sum of Rs.29,37,500/- which is due to the Complainant as Timely payment rebate reflected in the Statement of account dated 24.08.2012 along with interest @ 18% w.e.f. 24.08.2011 till the date of realization of amount.

 

i. Direct the Opposite Party to pay a sum of Rs. 1,00,000,00/-towards mental agony and harassment caused to the Complainant;”

 

4. The Opposite Party filed its Reply and resisted the Complaint by contending, inter alia, that the complaint was filed on July 15, 2013. As per Section 24A of the Consumer Protection Act, 1986, a complaint must be filed within two years from when the cause of action arose. In this case, all the allegations in the complaint pertain to events that occurred more than two years prior to the filing date, making the complaint time-barred. The complaint does not allege any cause of action within the two years preceding the complaint's filing. Instead, it claims a "continuous" cause of action, which the defendant argues is not applicable to the allegations made; That the Complainant invested in the Apartment in "The Magnolias" for better returns and value appreciation, which constitutes a commercial purpose. Hence, the Complainant does not qualify as a ‘Consumer’ under the Consumer Protection Act. The Complainant attempted to sell the Apartment at a higher price in January, 2009 and again when offered a buyback scheme in July 2011, indicating the intent for commercial profit. The investment of Rs. 4.50 crores for potential profit further supports the Complainants’ non-consumer status; That the Complainant has not disclosed the ownership status of her current residence, her financial position, income tax returns, or details of other property investments. The complaint omits the involvement of her husband, Vikas Gupta, who was also an Allottee and co-complainant in a previous case, likely to give a misleading impression of the Complainant's consumer status; That all allegations in the complaint pertain to specific clauses in the Apartment Buyers Agreement dated June 14, 2006. The issues raised are contractual, requiring detailed evidence and interpretation of Agreement clauses, which is beyond the Consumer Commission's jurisdiction and should be dealt with by a Civil Court. Clause 30, which restricts the transfer of the Apartment without the Builder's permission, has been upheld by the Supreme Court as a contractual matter, not subject to consumer law; That the apartments in "The Magnolias" were allotted to a select group to ensure a congenial neighbourhood and avoid speculative investments. The restriction on transfers before executing the sale deed is common practice and was intended to prevent speculative transactions. The Complainant is free to sell the Apartment post-execution of the Conveyance Deed. Various legal precedents support the Builder's discretion to grant transfer permissions and the enforceability of contractual terms; That the construction of the Apartment does not constitute a service under Section 2(1)(o) of the Consumer Protection Act. The Agreement to sell the Apartment is not a service but a contractual transaction. Claims of unfair or restrictive trade practices related to the buyback offer or clause 30 are unfounded as these terms were more beneficial to the Complainant compared to standard refund provisions. The reliefs claimed in the complaint are in the nature of specific performance, which falls outside the Consumer Commissions jurisdiction, as laid down by the Hon’ble Supreme Court in various cases; That Clause 9.1 of the Agreement stipulates that no claims can be made after the issuance of the Occupation Certificate, which was granted on December 27, 2011. Hence, the complaint filed on July 15, 2013, is barred; That the claim for Rs. 1 crore in compensation for mental agony and harassment is unsupported by any material evidence and is deemed exorbitant and unreasonable.

5. Evidence by way of Affidavit has been filed by Complainant Mrs. Alka Gupta; Evidence by way of Affidavit has been filed on behalf of Opposite Party by Mrs. Poonam Madan, Authorised Signatory of DLF Universal Ltd.

6. Ld. Counsel for Complainant has argued that DLF applied for sanction nine months after launching the project, receiving approvals for the original plans only by February 27, 2007. Despite DLF’s commitment to deliver possession by May 23, 2009, the Complainant had made 95% of the total consideration, amounting to Rs. 4.30 crores, by August 2008. However, DLF applied for an increase in the number of floors from 17 to 22/26 in different towers in April 2009, just one month before the committed date of delivery, and received approval on September 22, 2009. This increase in floors delayed the completion of the Complainant’s Apartment, and the date for fit-out was only conveyed on April 20, 2012, with final possession offered on November 28, 2012-three and a half years late. Moreover, this offer of possession was conditional, compelling the Complainant to accept an increased super area of nearly 9% (an additional 528 sq. ft.) without proper justification, demanding an additional amount of Rs. 39,60,000/-. Upon independent measurement by a registered architect, the Complainant found the actual area to be 4927 sq. ft. instead of the allotted 5170 sq. ft., indicating an overcharge of Rs. 18,22,500/-. This led to the Complainant filing the present complaint on July 15, 2013, citing deficient service and unfair trade practices by DLF; That DLF’s arbitrary and unilateral decision to increase the number of floors significantly contributed to the delay in project completion. Clause 11.4 of the ABA and DLF’s Red Herring Prospectus, issued on May 7, 2007, had both committed to completing the project by fiscal 2009 with 402 residential units in five buildings of 19 floors. The decision to change the project concept was only communicated to the Complainant on July 16, 2009, two months after the committed delivery date. Launching the project without required approvals and later changing the project concept by increasing floors after collecting 95% of the sale consideration constitutes an extreme case of unfair and restrictive trade practices; That on September 10, 2009, the DLF communicated that possession for fit-out would start from January to August 2010, further proving that the delay was for DLF’s own monetary gain; That the demand of Rs. 12 lakhs for parking is illegal as per the Supreme Court's decision in "Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Cooperative Housing Society Ltd. (2010) 9 SCC 536", and similar unfair practices have been condemned by the Competition Commission of India (CCI), which imposed a penalty of Rs. 630 crores on DLF on August 12, 2011; That this Commission’s Orders in "Satish Kumar Pandey Vs. M/s. Unitech Ltd. (CC No. 427 2014)" and "Jivitesh Nayal Vs. Emaar MGF Ltd. (CC No. 34 of 2015)", are against the unfair/arbitrary and one-sided clauses that are skewed in favour of the builders, wherein the builders compel the buyers to agree for paltry amounts of delay compensation.  This Commission has held these forms of agreements to be unfair. 

7. Ld. Counsel for Opposite Party argued that that in accordance with Clause 10.2 of the Agreement for Buyer’s Allotment (ABA), the Opposite Party (OP) was required to complete construction within 36 months from the date of the Agreement, by June 14, 2009.  Clause 10.3 stipulates that possession would be offered once the Occupancy Certificate was obtained, with the Allottee expected to take possession within 30 days of such offer, following payment of any outstanding amounts and completion of possession formalities; That Clause 11.4 provided for compensation of Rs. 5 per sq.ft. per month for delays in possession. Due to construction delays, the OP agreed to increase the compensation to Rs. 10 per sq.ft. per month from November 2011 onwards and introduced a Timely Payment Rebate (TPR) of Rs. 500 per sq.ft., contingent upon timely payments. The Basic Sale Price (BSP) of Rs. 7,500 per sq.ft. made the TPR equivalent to 6.6% of the BSP; That the construction was completed, and the Occupancy Certificate was obtained on December 27, 2011. Possession was offered to the complainant on November 28, 2012, resulting in a delay of 3½ years beyond the stipulated completion period. Since the OP did not cite Force Majeure for this delay, the reasons for the delay, whether due to increased floors or other factors, are considered irrelevant; That the Complainant was awarded a total compensation of Rs. 40,13,112/-, which includes Rs. 8,12,612/- for delay and Rs. 32,01,500/- for the TPR. Given recent judgments from the Hon'ble Supreme Court and this Commission typically limiting delay compensation to an interest rate of 6% per annum, and considering the substantial compensation already provided, no further delay compensation is deemed necessary; That upon receiving the Offer of Possession on November 28, 2012, the Complainant was presented with three options: (i) take possession by making the required payments, including adjusted charges for any increase in area; (ii) resell the property to the OP at Rs. 16,500/- per sq.ft., a significant increase from the booking price of Rs. 7,500/- per sq.ft.; or (iii) receive a refund at 9% per annum on the deposited amount. Additionally, the complainant was informed of upgraded features, including a new club facility. The Complainant, however, responded on December 14, 2012, stating that ongoing MRTP proceedings rendered the offer irrelevant. The MRTP case concerned Clause 30 of the ABA, which restricted the transfer of allotment without the OP's permission, suggesting the Complainant's intent to exit the allotment. The Complainant’s refusal to engage with the offer or select any option indicates a deliberate delay. The Complainant withdrew from the MRTP proceedings on March 1, 2013, and filed the current complaint on July 15, 2013, seeking possession and other reliefs. Notably, the Complainant did not seek an interim order for possession, a common practice in such disputes. Other Allottees in similar situations have typically accepted possession by paying the required amounts without prejudice to their claims. The Complainant's avoidance of possession and payment obligations, along with the potential for resale profits given the substantial appreciation in property value, suggests a possible misuse of process; That given that the Apartment was to be delivered as 'semi-finished' with interior work to be completed by the Allottee, the Complainant’s delay in starting the interior work, citing ongoing legal disputes, further indicates a tactical delay rather than a genuine intent to occupy the property. The current resale value of the Apartment significantly exceeds both the original booking price and the re-purchase rate offered by the OP, reinforcing the Complainant’s potential motive for delay. Therefore, extending delay compensation beyond the offer of possession, especially with the substantial compensation already provided, is not warranted; That the issue regarding the Super Area was clearly addressed in the Agreements. The Booking Application dated May 24, 2006, and the ABA dated May 30, 2006, defined the Super Area as provisional and subject to adjustment after the final computation, which would occur upon receiving the Occupancy Certificate. Any changes in the Super Area beyond 5% of the tentative figure allowed the Allottee to either accept the new Super Area or opt for a refund of the deposit with 9% interest. This provision is detailed in Clause 4(a) and Clause 10(ii) of the Booking Application and Clause 1.5 and Clause 9.2 of the ABA; That upon receiving the Occupancy Certificate on December 27, 2011, the final Super Area was computed based on the final 'as-built drawings.' The offer of possession dated November 28, 2012, indicated an increase in the Super Area by 528 square feet, approximately 9%. The Complainant was notified of this increase and given the option to accept it or exit the Allotment with a refund including 9% interest. Additionally, the Complainant was offered to resell the Apartment to the OP at a rate of Rs. 16,500/- per sq.ft., potentially yielding significant financial benefits. Based on this repurchase rate, the Complainant would receive Rs. 10.05 crores compared to the Rs. 4.29 crores paid originally. The offer of possession letter indicated an additional price of Rs. 39,60,000/- for the Super Area increase, calculated at the booking rate of Rs. 7,500/- per sq.ft.  A special rebate of 20% was applied, reducing the payable amount for the increased area to Rs. 29,04,000/- effectively lowering the rate to Rs. 5,500/- per sq.ft.; That despite these options, the Complainant did not choose any and responded on December 14, 2012, citing the MRTP proceedings as the reason for inaction. The MRTP complaint was related to the allotment transfer clause, and no grievances about the Super Area increase were mentioned. The Complainant only began challenging the Super Area concept in the complaint filed on July 15, 2013, over seven years after agreeing to it. The term 'Super Area' is defined contractually and includes 'Apartment Area' plus a share of 'common areas.' Annexure IV of the ABA outlines the Super Area computation. The Architect's report relied upon by the Complainant, which does not address Super Area but only Carpet Area, Plinth Area, and Rentable Area, lacks relevance. The Super Area definition and calculation method were further clarified through Affidavits and supporting documents filed by the OP, including a report from M/s. Garg A. Associates. The Complainant did not provide a counter-Affidavit or dispute these findings; That the Complainant's reliance on the Order of this Commission in "Pawan Gupta v. Experion Developers Pvt. Ltd., CC/285/2018" and of the Hon’ble Apex Court in "Experion Developers Ltd. v. Pawan Gupta, CA 3703 of 2020" is misplaced as these cases support the OP’s stance. The OP has provided comprehensive affidavits, third-party verification, and layout plans to justify the Super Area increase, which the Complainant has not refuted; That the judgments affirming the legality of separately disclosed parking charges support the OP’s position. The parking charges were clearly disclosed and separate from the Super Area charges. This practice has been upheld by the Hon'ble Supreme Court.

 8. This Commission has heard both the Ld. Counsel for Complainant and the Opposite Party, and perused the material available on record.

9. The proceedings in this Complaint overall have followed an unusual trajectory.  It may be mentioned that initially the maintainability of the Complaint itself was challenged by contending that the same was liable to be dismissed on account of non-joinder of a necessary party namely Mr. Vikas Gupta husband of the original Complainant- Mrs. Alka Gupta, who was a Co-allottee in respect of the concerned Apartment.  It was the contention of the Opposite Party that the said Co-allottee was engaged in the business of buying and selling of properties for commercial purposes on account of which he had been intentionally not joined as Complainant since he had earlier approached the Monopolies and Restrictive Trade Practices Commission challenging the terms of allotment which restrained the buyers from transferring their purchased Units.  IA No. 6581 of 2022 was then filed on behalf of the Complainant for accepting the Affidavit of her husband in which he had stated that he had no objection to pursuance of the present Complaint by Mrs. Alka Gupta as the sole Complainant inspite of her being Co-allottee.  The aforesaid application was allowed by the Division Bench hearing the matter on 2.8.2022 and in the relevant Order, it was observed that non-impleadment of the husband in itself was not a ground to dismiss the Complaint.  The said Order was then challenged on behalf of the Opposite Party in the Hon’ble High Court of Delhi by way of CM (M) 1130 of 2022 which was disposed off by the Hon’ble Court with liberty to the Opposite Party to again raise its challenge to maintainability of the Complaint at an appropriate stage on the ground of non-joinder of necessary party.  After that the Complainant’s side agreed to implead Mr. Vikas Gupta husband of the original Complainant, and accordingly filed amended Memo of Parties under IA No. 0167 of 2023, which was accepted.  The Opposite Party from its side thereafter filed certain interrogatories under IA No. 1160 of 2024 to question the added Complainant No. 2 mainly about his business and occupation.  But at a later stage, did not press upon the same.

10. However, on 6.2.2023, it was submitted on behalf of the Complainants that they wanted possession and delay compensation in respect of their Apartment, and Ld. Sr. Counsel for the Opposite Party on instructions submitted thereafter that his client was willing to hand over the possession provided that the “payment is made and interior work is done as per time stipulated in the Builders Buyers Agreement.”  

11. Subsequently, however on 11.1.2024, it was submitted by Mr. M.L. Lahoty, Ld. Sr. Counsel for the Complainants that the amounts claimed by the Opposite Party were grossly exaggerated on account of which his client would not press for interim possession, but would seek disposal of the Complaint finally on merits. Subsequently, during the course of final hearing, Ld. Sr. Counsel submitted that he did not press for the relief claimed under Clauses (g) & (h) of the prayers made in the Complaint, which have already been re-produced in Para 3 earlier. Consequently, only prayer Nos. (a), (b), (c ), (d), (e), (f) and (i) now remain to be considered.  As has already been seen, prayer Nos. (a), (b) and ( c ) pertain to the controversy regarding the super area which was claimed by the Opposite Party to have increased by about 9% from the original Plan of the concerned Apartment and the payments/charges liable to be incurred by the Complainants/Allottees for the same.  Prayer (d) is restricted to the controversy regarding the parking charges claimed by the Opposite Party, which according to the Complainants are not justified.  By way of prayer (f), the Complainants seek possession of their Apartment, and prayers (e) and (i) essentially pertain to the compensation claimed by them on account of delay, mental agony and harassment.   

12. Consequently, we have to now determine only three controversies being firstly, the correctness of the rival parties’ contentions about the alleged increase in the super area of the Apartment, secondly, the correctness of the parking charges claimed by the Opposite Party and lastly the compensation, if any, admissible to the Complainants.  Our observations on these questions follow in the succeeding paragraphs.

Increase in super area

13.     It had been provided in the Original Apartment Buyers Agreement that the Company would have to intimate the Allottee in case of any major alteration/modifications resulting in a + 5% change in the super area of the concerned Apartment, or of any material, any substantial change, in which case the Allottee would be liable to make payment for any increased area, and that in case the Allottee is not agreeable, then the Company would refund the entire received money from him/her with interest @ 9% per annum. Now contention of the Complainants is that there was no actual increase in the super area of the Apartment, and the demand made in this regard by the Opposite Party was fictitious. To substantiate this contention, the Complainants have relied upon the report of one A.S.M.H.A. Laskar regarding the measurement of the area and drawing of Flat No.2005 in Tower 20 in the Project Mangolia, the entire text of communication dated 18.5.2013 sent to Complainant Vikas Gupta issued by the said A.S.M.H.A. Laskar is set out as below –

“Subject: Measurement of Areas & Submission of drawings of Flat No. 2005 in Tower 20 of the Project Magnolia.

1. Method of Measurement of Plinth, Carpet & Rentable areas of Buildings- IS 3861:1975 (Annexure A)

2. The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 and the Haryana Apartment Ownership Act, 1983 (Relevant extract enclosed as Annexure-B)

Dear Mr. Gupta,

While we have not been able to calculate the “Super Area” or Apartment Area” of your apartment, as requested (given that they are not defined in any statute or relevant guidelines), but we have used aforesaid reference as relevant guidelines.

 

Post our actual measurement of the aforesaid apartment here re our findings:

(a) The Carpet area is 341 SMT (3671 SFT)- the drawings are enclosed as Annexure 1.

(b) The Plinth area is 458 SMT (4927 SFT) – the drawings are enclosed as Annexure 2.

(c) The Rentable area is 449 SMT (4827 SFT) – the drawings are enclosed as Annexure 3.

We also find that as the measurement of Built-up area of Independent Unit (as per reference 2 – extract enclosed Annexure B) is same as Plinth area as per IS (Indian Standard) – 3861 mentioned above.”

(Emphasis added)

 

14.      It is thus seen that the Expert concerned had himself mentioned that he was not able to calculate the ‘super area or apartment area’ of the concerned Apartment as these terms are not defined in any Statute or relevant guidelines, but he had used the relevant guidelines referred in his letter for the purpose of giving his findings.

15.  In this regard, attention has been drawn to the fact that Annexure II of the Brochure itself containing the definition of “Super Area”. The relevant extracts from the said definition are set out below –

“Whereas the Apartment area of the said Apartment shall mean entire area enclosed by its periphery walls including area under walls, columns, balconies, deck, cupboards and lofts etc. and half the area of common walls with other premises/ apartments which form integral part of said Apartment and Common areas shall mean all such parts/areas in the Magnolias which the allottee shall use by sharing with other occupants of the Magnolias including entrance lobby, lift lobbies, lift shafts, electrical shafts, fire shafts, plumbing shafts and service ledges on all floors, driver’s/ common toilet at ground floor, common corridors and passages, staircases, mumties, lift machine room, overhead water tank, cooling towers, mail room, maintenance offices/ stores, security/ fire control rooms, architectural features, if provided the Club including its services areas and Services Area provided I basements including but not limited to Electric Sub-station, D.G. set room, U.G. water and other storage tanks, pump room, AC plant room, if any, Laundromat, fan rooms and circulation area etc. etc.

 

Super Area of the Apartment provided with exclusive open terrace(s) shall also include area of such terrace (s), Apartment allottee however, shall not be permitted to cover such terrace(s) and shall use the same as open terrace only and in no other manner whatsoever.”

 

16.       From its side, the Opposite Party has relied upon the relevant extracts from the detailed report of the Independent Agency “M/s Garg A. Associates”, covering each and every Apartment of the Project in the various Towers, in relation to the disputed Apartment No. 2005 located on 5th floor of building Block 20, the Independent Agency has given the dimensions of the Flat as under -

          “Apartment area is equal to 426.261 Sq. Meters, 

  Balcony area is equal to 52.909 Sq. Meters, 

  Total apartment area is equal to 489.190 Sq.Meters, Super area is equal to 584.831 Sq. Meters 

 and the 

Salable area is equal to 594.831 Sq. Meters     

corresponding to 6403 Sq. Feet.”

 

17.      In certain other proceedings involving the same Opposite Party (CC No.351 of 2015 and other connected complaints, decided on 3.1.2020), this Commission had accepted the reports of the same independent Agency M/s. Garg A. Associates vis a vis the controversy pertaining to the Super Area of the disputed Apartments with the following observations –

“SUPER AREA 

20. In terms of Annexure-II of the Agreements executed between the developer and the allottees, the price of the apartments was to be calculated on the basis of its super area. It was also noted in the above referred clause that the super area mentioned in clause 1.1 was only tentative and could change. The allottees had agreed not to object to the change of the super area. However, if the super area was to increase/decrease by more than 15% on account of any alteration/modification/change, the allottees were required to be intimated in writing before carrying out the proposed change and had an option to take refund of the payment which they had made to the developer alongwith interest. 

21.  The super area in terms of Annexure-II of the Agreements was to consist of the apartment area, pro-rata share of the common areas of the building and pro-rata share of other common areas outside the building, as defined therein. 

22.  In the project subject matter of these complaints, the developer has not sought additional payment for increase in the super area beyond 15%. Therefore, no prior notice to the allottees was required before increasing the super area and to the extent there has been actual increase in the super area, as defined in Annexure-II of the Agreements, the allottees are required to pay for such an increase. The allottees had also agreed that not only the super area but even the percentage of the apartment area to the super area could change and they would have no objection to change of the said ratio, though the case of the OP is that the ratio has not changed and the same continues to be 78.5% of the super area. The developer has filed the affidavit of its Additional Chief Architect Mr. Mukul Gupta who has stated on oath that the final super area based on the approved completion drawings which includes floor plans, unit area plans, elevation and sections of the building was verified and quantified by external experts M/s. GAA Advisory, who also determined the common area and pro-rata share of the apartment in the common areas. The detailed report of GAA Advisory in respect of all the three phases has been filed with the Convenience Compilation filed by the developer. It is stated in the affidavit that the super area so determined by GAA Advisory was rechecked and verified by the School of Planning and Architecture, Delhi and the reports of the said School have been filed with the Convenience Compilation. 

23. Though, the affidavits of the experts from GAA Advisory and the School of Planning and Architect have not been filed, I see no reason to disbelieve their respective report supported by an affidavit of the Architect, when no material to the contrary has been field by the allottees. Therefore, I have no hesitation in holding that the additional demand on account of increase in the super area, which has been restricted to 15% of the super area stated in the agreements, is justified. Though, the ratio of the apartment area to the super area could also change, it is stated in the affidavit of Mr. Mukul Gupta that the final percentage of the apartment area to the super area of the apartment is not less than 78.5% and there is no material to the contrary filed by the allottees. Therefore, I find no justification in the grievance with respect to the demand on account of increase in the super area of the apartments.”

 

18.      In the present case, as already seen, the Expert submitting his report to the Complainant had himself acknowledged that the definition of the terms “Super Area and Apartment Area” was not available according to the Statute, but he did not consider the definition as given in the Annexure II to the Brochure, which was applicable in this case, as the Agreement between the parties flowed from the material disclosed in the said Brochure.  Consequently, not much reliance can be placed on the report of the Complainant’s claimed Expert A.S.M.H.A. Laskar.  On the other hand, and also for the same reasons as noted by this Commission in accepting the report of the Independent Agency M/s. Garg A. Associates in the case of “Capital Green Flat Buyers Association and others Vs. DLF Universal Limited and another (2020 SCC Online NCDRC 3)”, would appear to be more convincing.  At any rate, during the course of hearing, we suggested to the parties to have another physical inspection of the Apartment to be got conducted by an independent Expert subject to sharing of expenses by both sides.  The Opposite Party from its side readily agreed to such suggestion, but Complainants did not show any inclination to go in for that course of action.  We are, therefore, now inclined to place reliance on the said report of the independent Agency “M/s. Garg A. Associates” to hold that the Opposite Party has been able to establish that super area of the Apartment has actually increased to 6043 sq.ft. in totality and the Complainants are, therefore, liable to pay the additional charges for this area on the original rate agreed upon by the parties.

Parking charges

19.    Contention of the Complainants is that they are being wrongfully charged for the open parking space, which actually is a part of the common/super area in the stilt parking, on account of which actually no exclusive parking space to them has been provided which would justify claiming any charges under the Head “Parking Area”.  This interpretation of the Complainants has admittedly been derived from the decision of the Hon’ble Supreme Court in the case of “Nahalchand Laloochand (P) Ltd. V. Panchali Coop. Housing Society Limited (2010) 9 SCC 536”.  But subsequently in “Civil Appeal No.3223 of 2020 - DLF Limited Vs. Narender Gupta and others” decided on 28.10.2021, it was held by the Apex Court that the decision in “Nahalchand Laloochand” (Supra) was applicable only in the context of “Maharashtra Ownership of Flats Act (MOFA), 1963”, which was not applicable to the State of Haryana.  Undisputedly, the Project involved in the present Complaint i.e. “Magnolia” is located in Gurgaon and is, therefore, governed by the prevalent law as applicable to the State of Haryana.

20.      In the case of “Wg. Cdr. Arifur Rehman Khan Vs. DLF Southern Homes Private Limited (2020) 16 SCC 512”, the Hon’ble Supreme Court had on the question of parking charges observed inter-alia –

“66. The appellants seek a refund of an amount of Rs. 2.25 lacs collected from each buyer towards car parking. The submission is that under Section 3(f) of the Karnataka Apartment Ownership Act 1972 (“The KAO Act”), common areas and facilities include parking areas. According to the appellants, the flat buyers had already paid for the super area in terms of clause 1.6 of ABA including common areas and facilities which would be deemed to include car parking under the KAO Act. The relevant portion of clause 1.6 is extracted below:

“1.6. The Allottee agrees that the Total price of the said Apartment is calculated on the basis of its Super Area only (as indicated in clause 1.1.) except the parking space, additional car parking space which are based on fixed valuation…."

 

67. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement.

 

68. The decision of this Court in Nahalchand Laloochand (P) Ltd. V. Panchali Coop. Housing Society Limited turned on the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963, as explained in the subsequent decision of this Court in DLF Ltd. V.Manmohan Lowe.  The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.”

(Emphasis added)

21.     The aforesaid decision was then again relied upon by the Apex Court in “DLF Limited Vs. Narender Gupta” (supra) in distinguishing the case law in “Nahalchand Laloochand” (supra) in the following manner -

“….The decision of this Court in Nahalchand was in the context of the provisions of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, whereas the subsequent decision in Arifur Rahman Khan and Capital Greens Flat Buyers Association were in the context of the provision of the Karnataka Apartment Ownership Act, 1972 and in the context of the construction project in Delhi.

(Emphasis added)

 

22.      Therefore, the contention that the Complainants were being wrongfully subjected to parking charges without providing any exclusive specified parking spaces to them is not convincing firstly, in view of the fact that the ratio of the decision in “Nahalchand Laloochand” (Supra) is inapplicable in the State of Haryana, and terms and conditions of the Apartment Buyers Agreement would govern the controversy in the present case.  Secondly, it has also transpired that distinct ear-marked spaces in the stilt parking area for parking three cars are meant to be provided to the Complainants when possession is taken by them.

Compensation of complainants and respective entitlement of contesting parties

23.    Admittedly, possession of the Apartment was to be delivered to them in May 2009 (verified from ABA) but the possession was actually offered only on 28.11.2012.  Consequently, the Complainants are entitled to delay compensation @ 6% p.a. on the payments made by them from the date of each respective payment, in view of the decision of the Hon’ble Supreme Court in the case of “Wg. Cdr. Arifur Rehman Khan (Supra), since in the present case, the Complainants are willing to accept possession, and do not seek any refund of the sale consideration price paid by them.

24.      From their side, the Opposite Parties have raised the following claims as outstanding dues from the Complainants-