KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. COMMON JUDGMENT IN APPEAL Nos. 407/2005, 408/2005, 409/2005 & 410/2005 JUDGMENT DATED: 06-10-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT APPEAL No. 407/2005 APPELLANT Royal Properties & Projects, Rep. by its Managing Partner, Palace Arcade, IInd Floor, Statue Junction, Tripunithura. (Rep. by Adv. M/s P.R. Ramachandra Menon & B. Sajeev Kumar) Vs RESPONDENTS 1. C. Balakrishnan, Flat No. G3, Royal Nest, Phase – II, Chinmaya Mission Road, Tripunithura. 2. Mrs.P.P. Sheela, W/o C. Balakrishnan, Flat No. G3, Royal Nest, Phase – II, Chinmaya Mission Road, Tripunithura. (Rep. by Adv. M/s Menon & Menon) APPEAL No. 408/2005 APPELLANT Royal Properties & Projects, Rep. by its Managing Partner, Palace Arcade, IInd Floor, Statue Junction, Tripunithura. (Rep. by Adv. M/s P.R. Ramachandra Menon & B. Sajeev Kumar) Vs RESPONDENTS 1. M.S. Suresh, 2 D, Royal Nest, Phase – II, Chinmaya Mission Road, IN fort, Tripunithura. 2. Mrs. Manju Suresh, W/o M.S. Suresh, 2 D, Royal Nest, Phase – II,w Chinmaya Mission Road, IN fort, Tripunithura. (Rep. by Adv. M/s Menon & Menon) APPEAL No. 409/2005 APPELLANT Royal Properties & Projects, Rep. by its Managing Partner, Palace Arcade, IInd Floor, Statue Junction, Tripunithura. (Rep. by Adv. M/s P.R. Ramachandra Menon & B. Sajeev Kumar) Vs RESPONDENTS 1. V.G. Jathavedan, 2 C, Royal Nest, Phase – II, Chinmaya Mission Road, Tripunithura. 2. Mrs. Dhanya, W/o V.G. Jathavedan, 2 C, Royal Nest, Phase – II, Chinmaya Mission Road, Tripunithura. (Rep. by Adv. M/s Menon & Menon) APPEAL No. 410/2005 APPELLANT Royal Properties & Projects, Rep. by its Managing Partner, Palace Arcade, IInd Floor, Statue Junction, Tripunithura. (Rep. by Adv. M/s P.R. Ramachandra Menon & B. Sajeev Kumar) Vs RESPONDENT N.V. Ravidev, F.C. Royal Nest Phase-II, Chinmaya Mission Road, InFort, Tripunithura. (Rep. by Adv. M/s Menon & Menon) COMMON JUDGEMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT Appellants are the opposite parties/builders in OP No. 156/2003(Appeal No.407/05), OP No. 213/2003 (Appeal No. 408/05), OP No. 212/2003 (Appeal No. 409/05) & OP No. 155/2003 (Appeal No. 410/2005) in the file of CDRF, Ernakulam. The OPs were disposed of by a common order. The appellants are under orders to pay a sum of Rs. 50,000/- as compensation and Rs. 500/- as costs in each of the OPs. 2. The complainants are the flat owners who have purchased flats from the opposite parties. The complainants have paid a sum of Rs. 9.5 lakhs each for the respective flats including ear marked car parking of the building complex that consisted of 24 flats in three floors. The case of the complainants is that although as per the agreement the extent of the flats mentioned in the agreements was 1125 sq.ft including share in the common areas the flats were found to be of less extent. According to them the plinth area of the rooms varied with the measurements shown in the brochure. It is also alleged that the quality of construction was poor and that cracks developed on the walls and that the construction did not confirm with the specifications and was in violation of the approved building permit and plan issued by the local authority. The complainant in OP No. 155/2003 had an additional prayer for refund of Rs. 36,254 that he had to spend for making repairs. The complainants have claimed a sum of Rs. 2 laksh each with interest at 18%. 3. On the other hand, the opposite parties have contended that the allegations are false and that they had already offered to take back the flats by repaying the entire amounts paid by the complainants. They are ready to do so even now. It is contended that they have completed a number of flats ie, 16 in number including commercial and residential and all the buyers are satisfied. It is contended that the complainants have booked the flats in 2001 when the construction was 95% complete. It is alleged that the complainants have booked the flats after physically seeing the flats and satisfying as to the extent and quality. It is contended that it is only to evade certain payments that they have filed the complaints. It is further contended that the extent mentioned included the common areas including car park. It is pointed out that the local authority have issued building number etc. after fully satisfying as to the compliance of the permit and plan. 4. The evidence adduced consisted of the testimony of PW1, the expert Commissioner, PW2 the complainants in each of the cases and that of DW1 and Exts. A1 to A19, B1 to B6, C1 in OP 155/2003, Exts. A1 to A9 and B7 to B12 in OP No.156/2003, A1 to A5 and Ext.B13 in OP No. 212/2003 and A1 to A4 and B14 and B15 in OP No. 213/203. 5. The Forum has noted that as per the agreement the condition was to provide a super built up area of 1125 sq.ft including share in common area and that the same is inclusive of the cost of the car park area also. The Forum has noted that the measurements of the rooms shown in the brochure is at variance that the measurements noted by the Commissioner. It is stated that the Commissioner has noted that the car park area would not come within the meaning of common area. Hence it was concluded that there is difference in the area mentioned in the agreement and that has been provided to the complainants. Hence in each case it was ordered to pay a sum of Rs. 50,000/- each as compensation. 6. It is pointed out by the Counsel for the appellants that the measurements in the brochure are only just approximate. It is pointed out that the difference in the total area would work out to approximately 130 sq.ft which is the measurement of the ear marked car park. It is also pointed out that within a year of execution of the agreement the completed flats were handed over. It is pointed out that the contention in the version that 95% of the works were over when the complainants entered into agreement and that they have entered into the agreement after inspecting the almost completed flats has not been disputed. The Counsel for the appellants have also produced the sale deed with respect to the flat of the complainant in OP No. 212/2003 as per which he has sold the flat for Rs. 28.5 lakhs on 05-11-2008. It is pointed out that in all likelihood the sale price shown in the document would be less than the amount received for the above flat. It is the contention of the Counsel for the appellant that infact the complainants have received much more amounts for the flats purchased by them for Rs 9.5 lakhs in 2001. It is also pointed out that the complaints have been filed after about 19 moths of handing over of the flats. The measurement of the rooms shown in the brochure is not drawn to scale and is meant only for guidance. The same is mentioned in the brochure itself. As per clause 3 of the brochure with respect to terms and conditions the area of the flats is inclusive of common areas and wall thickness. As per clause 8 it is mentioned that all the measurements and specifications contained in the leaflet are subject to minor variations/alterations at the discretion of the builder. It is also point out/seen that in the agreement it is mentioned that the super built up area is approximate including share in the common areas. 7. The Commissioner in Ext.C1 report was asked to point out the difference between the actual carpet area as well as the built up area mentioned in the agreement. The Commissioner has noted with respect to the flat in OP No. 155/2003 that the share of common area and car park area would come to 235 sq.ft and the actual built up area works out to 951.55 sq.ft. Hence the total area would be 1188.55 sq.ft. The Commissioner has stated that the carpet area is not mentioned in the construction agreement and brochure. Hence according to the Commissioner there is no violation of the agreement between the complainant and the opposite party. 8. We find that the case of the appellants/opposite parties is that the complainants entered into the agreement at the time when 95% of the works of the flats were completed. This part of the version has not been disputed by the complainants. Further, what has been mentioned in the agreement is only the approximate area including the share in the common areas. What has been measured by the Commissioner is the carpet area whereas what has been mentioned in the agreement is a super built up area of approximately 1125 sq.ft including share in common areas. The area is inclusive of the wall thickness as has been specifically mentioned in the brochure. The measurements in the brochure are subject to minor variations/alterations. The measurements as noted in the brochure are not drawn to scale and are included for the purpose of identification and guidance only. The complainants vide Ext.C1 report could not bring out the actual extent of the flats including the wall thickness. The price of 8.5 lakhs included the cost of car park also. Rs. 1 lakh was paid for the undivided share of the extent of land. The Commissioner has noted that the cracks etc. are only cracks in the plaster and cannot be treated as a defect in construction. As pointed out by the Counsel for the appellants one of the complainants has sold the flat for Rs. 28.5 lakhs vide the document produced. In the circumstances, and in view of the fact that the exact area has not been mentioned in the agreements, we find that the deficiency in service alleged stands not proved. In the result, the order of the Forum in the OPs are set aside and the appeals are allowed. The office will forward the LCR to the Forum along with a copy of this order. JUSTICE K.R. UDAYABHANU: PRESIDENT Sr. | 
