PRESENT

                   Complainant by Adv. Smt.Warunjikar  present.   

                   Oppoent  Absent.            

                                       ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President)

1. The complainant was originally tenant of building namely Smruti Buildings occupying flat No. 5 on second floor. The opponent become owner of the premises and decided to develop the plot.
2. The agreement was entered between complainant and opponent on 04/12/2002 for providing  permanent  alternate accommodation, on ownership basis on third floor admeasuring 528.50 Sq. Feet.
3. The complainant alleged that it was agreed that additional 210 sq. Feet carpet area shall be added in the existing area of permanent alternate accommodation on i.e. 528.50 sq. Feet.
4. The parties entered in to agreement for flat admeasuring 237.50 sq. Feet carpet area by agreement dated 08/05/2005. He paid additional amount as agreed by Cheque issued on 11/04/2002, 13/04/2002 and 11/02/2005 and  amount of Rs. 10,10,000/-
5. The complainant stated that, construction was made and possession was given to him in March 2005. The occupation certificate was obtained in May 2006. It is alleged that opponent failed to provide flat as per agreement.
6. The complainant stated that BMC inspected the property and it was assessed to Income Tax and area was shown 6559 Sq. mtr. I.e. equal to 699.40 sq. feet.
7.  The complainant appointed expert architect for  ascertaing  the area of flat as per report area of flat is 713.96 sq.feet . The opponent accepted price for 738.50 sq. Feet.
8. The complainant stated that, opponent failed to form society as per law and the flat purchaser formed society by their expenses. The notice was issued to opponent on  09/03/2009 for deficiency in service by opponent.
9. The complainant claimed compensation for failure to provide  flat as per agreement and for hardship. He is senior citizen and his wife is physically challenged.
10. The complaint was admitted by the forum on 23/08/2011. The application for Condonation of delay was annexed with complainant.
11.  The opposite party file written version and denied all the contents. The complaint  is barred by limitation, as complainant got possession in 2005, occupation was obtained in 2006 and complainant is filed in 2011.
12.  The opposite party stated that, complaint  filed by complainant is of representative  character falling under sec. 12(1) (c) R/W. Sec. 13 (6) of C.P.A. 1986 for which the procedure as per O.1 rule 8 of C.P.C. has to be followed.
13.   The opponent stated that, all the facilities and amenities as agreed are provided by opponent. It is contended that measurement taken by the BMC for the purpose of tax assessment were not taken in the presence of opponent.
14.   That, opponent stated that, measurement taken by architect shri. Dongre were not taken in his presence and the said report is not supported by affidavit.
15.   The opponent alleged that, flat purchasers of the building got the society registered without following statutory obligation under law. The issue of formation of society cannot be agitated by individual but only by all in a representative manner.
16.    The opponent states that possession was handed over to complainant as per documents attached to agreement. It is prayed for dismissal of complaint  with cost.
17.    We have perused agreement for permanent alternate accommodation dated 4^th December, agreement dated 08/05/2005, registration certificate dated 20/01/2009, and appeal no. 58/2002 before Div. Joint Registrar dated 05/02/2009.
18.    The complainant filed delay Condonation  application which is objected by opponent. The complainant has taken possession in 2005 and complaint is filed in 2011.
19.    The complaint was under bonafide belief that possession of flat was given as per agreement. He came to know the area of flat in 2009 when BMC issued assessment extract. The period commence from the date of knowledge of mistake as per Sec. 17 of Limitation Act, 1963. He was under presumption that flat was of the agreed area hence there is no delay. The complainant properly explained the reason for not filing complaint  during 2006 to 2011. We find the reason acceptable. Hence we hold that  there is no delay.
20.     The opponent is under an obligation to handover the flat as per agreement. we direct the opponent to handover the area of the flat as per agreement.
21.     As there is no corroboration about the exact area as per report of architect and B.M.C., we direct opponent to handover the exact area of flat by submitting report of  expert architect.
22.      In case opponent fails to handover the flat as per agreement , he shall pay the value of the lesser area of  flat as per ready recokner rates.
23.     The complainant  is entitle for reasonable compensation of Rs. 50,000/- for hardship and cost of Rs. 10,000/-
24.     In the result, we pass the following order.

                                                         ORDER

1.       RBT Complaint No.322/2011 is partly allowed.

2.      The opponent M/S. Achin Properties Pvt.Ltd. is directed to handover        exact area of flat to complainant dully certified by

          architect within 3 month.

3.       The opponent shall pay amount equal to value of the short area as per ready recokner rates within 3 month.

4.       The opponent shall pay compensation of Rs. 50,000/- and cost of  Rs.10,000/-   

5.       Copy of this order be sent to both parties.