PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

 1)        By this complaint the Complainant has prayed that the Opposite Party be directed to pay the compensation of Rs.3,40,329/- as mentioned in para 6 of the complaint.

 2)        According to the Complainant, the Complainant and the Opposite Party entered into agreement at Annexure - ‘A’ to the complaint dtd.08/01/1990.  The Complainant had booked shop No.6 admeasuring 474 sq.ft. with the Opposite Party which is a construction company for a consideration of Rs.3,00,000/-.  It is alleged that as per the said agreement the Opposite Party was required to handover possession of the said shop premises on or before 31/12/1991.  It is submitted that however, Opposite Party failed to deliver the possession of the aforesaid shop premises on the given date.  It is alleged that the Opposite Party unnecessarily delayed the handing over of possession of the shop premises to the Complainant and also recovered excess amount of Rs.78,527/-.  It is submitted that the area of the shop was lesser than agreed by the Opposite Party.  It is submitted that the Opposite Party is guilty of deficiency in service and indulged in unfair trade practice. According to the Complainant he took the possession of the shop in question subsequently under threats and compulsion, the Complainant therefore, issued legal notice to the Opposite Party and claimed refund of excess amount recovered from him alongwith interest and compensation for mental harassment and future interest and demanded the amount of Rs.3,40,329/-, the particulars of which are given in Annexure to the complaint.  The Complainant has also filed measurement report of the shop premises at Annexure - ‘B’ and office copy of legal notice at Annexure - ‘C’.

 3)        The claim is contested by the Opposite Party by filing written statement.  It is alleged that the complaint is bad, misconceived and not maintainable.  It is denied that the Opposite Party has indulged in any unfair trade practice or guilty of deficiency in service.  Execution of agreement at Annexure - ‘A’ regarding sale of shop premises No.3 to the Complainant is not disputed.  The Opposite Party however, denied late delivery of the possession and recovery of excess amount of the shop purchased by the Complainant.  It is contended that as the plan was required to be changed as per the guidelines of CIDCO which were beyond the control of the Opposite Party, possession could not be delivered as per schedule.  It is contended that the area of the shop was never the less and the details about it have been explained in clause five of the agreement at Annexure - ‘A’ to the complaint.  According to the Opposite Party, the Complainant was under obligation to pay certain amount towards maintenance charges, security, house-keeping, electricity, etc. and the Complainant is liable to pay Rs.93,706/- towards it to the Opposite Party. The Opposite Party has claimed compensation of Rs.1,00,000/- for filing false and frivolous complaint.  The Opposite Party has given details of the charges liable to be paid by the Complainant in the Annexure filed with thewritten statement.

 4)        From the record of the complaint, it appears that the present complaint was dismissed for default vide order dtd.14/10/2004. It appears that thereafter, the Complainant had filed the appeal/proceeding before the Hon’ble Sate Commission and the same was dismissed for default and later on the Complainant had filed Revision Petition before the Hon’ble National Commission which was allowed and matter was remanded to the Hon’ble State Commission and the Hon’ble State Commission thereafter, by common order dtd.04/03/2013 by considering the fact that the cost as imposed by the Hon’ble National Commission while remitting back the appeals to the said Commissions are stated to have been paid and upon hearing the Advocates for both side set aside the order dtd.14/10/2004 and directed this Forum for denovo trial from the stage, the complaint was dismissed. Thereafter, the Complainant has filed affidavit of evidence.  The Opposite Party has filed additional written statement and thereafter the Complainant has filed additional affidavit of evidence.  The Opposite Party has filed the affidavit of evidence of V.Y. Nevrekar, the General Manager of the Opposite Party.  Both the parties filed their written arguments.  We heard Shri. V. Gangadharan, Ld.advocate for the Complainant and Ld.Advocates Shri. Karan Tamboli & Kunal Parekh appeared on behalf of Thakore Jariwala & Association. We have perused the documents relied by both the parties.

 5)        While considering the case made out by the Complainant that the Opposite Party is guilty of deficiency of service and liable to pay compensation, it is necessary to be considered that both the parties have admitted the execution of the agreement dtd.08/01/1990 filed with the complaint at Annexure - ‘A’.  As per the said agreement the Shop No.6 purchased by the Complainant is shown of the area of 474 sq.ft.  The Complainant has come out with the case that as per the report of Architect & Engineers A.Z. Vasi, that the carpet area of the said shop premises is 431.30 sq.ft. The Complainant has thus, come out with the case that that the area mentioned in the agreement of the shop purchased by him was not given to him in view of the report of architect which is placed on record as Annexure - ‘B’ to the complaint.  It is also alleged that the Opposite Party has therefore, no right to demand more money from the Complainant as the Opposite Party did not give more area of the shop purchased by the Complainant.  The advocate for the Opposite Party has pointed out that in clause 5 of the agreement dtd.08/01/1990 it is specifically stated that the carpet area of the said premises is 474 sq.ft. inclusive of enclosed balcony and common areas and facilities for the said building.  He pointed out that in the certificate of A.Z. Vasi & Co. no separate measurement of the common areas and balcony had been given.  He also submitted that the said certificate is vague and therefore, the same cannot be relied upon. Considering these facts we hold that the allegations made by the Complainant in the complaint as regards the shop area which was agreed to be given to the Complainant in the agreement dtd.08/01/1990 was not given to the Complainant and the Complainant had been given possession of lesser area than mentioned in the agreement cannot be said proved by the Complainant.  Furthermore, in the agreement dtd.08/01/1990 in clause 5 it is mentioned that facilities of the floor on which the same are located are as per the particulars given in the annexed to the said agreement and marked as Annexure - ‘D’.  It is pertinent to note that the Complainant has produced the copy of the agreement but did not file the copy of Annexure - ‘D’ to the said agreement.  We therefore, hold that the Complainant has come out with rather different case that the salable area which includes common facilities and common area is 681 sq.ft. and the same can be considered from the copy of the maintenance bill filed by the Complainant with additional evidence of affidavit in our view cannot be taken into consideration as there are no such pleadings in the complaint.  We therefore, hold that the case made out by the Complainant regarding providing of lesser area by the Opposite Party than agreed in the agreement dtd.08/01/1990 is not proved by the Complainant.

 6)        The objection raised by the Opposite Party that the claim is barred by time by filing additional written statement after this complaint is remitted back by the Hon’ble State Commission vide order dtd.04/03/2013 also cannot be taken into consideration as the Hon’ble State Commission in it’s order ordered that consumers complaint remitted back to the Forum from denovo trial from the stage they were dismissed.  On perusal of the record of this complaint, it appears that the Opposite Party has filed it’s written statement on 20/09/2001 and in that written statement the contention regarding the limitation has not been raised which is raised in additional written statement filed by the Opposite Party.  Furthermore, from the documents placed on record by the Complainant it appears that the Opposite Party has accepted the payment of Rs.90,527/- vide Receipt No.147, dtd.06/11/1995 and interest of Rs.4,802/- on 17/06/1995 vide Receipt No.107 from the Complainant.  The complaint is filed on 24/12/1996.  In our view therefore, the objection raised by the Opposite Party that the claim is barred by limitation is not proved by the Opposite Party. The Complainant has made the claim regarding recovery of excess amount of Rs.78,527/- within two years from the last payments as stated above have been made to the Opposite Party.  We therefore, hold that the said objection raised by the Opposite Party is devoid of merits.

 7)        The claim of refund of excess amount recovered by the Opposite Party to the tune of Rs.78,527/- from the Complainant in our view is justifiable as the Opposite Party had agreed to sale the shop in question for Rs.3,00,000/-.  However, from the copies of the receipts placed on record, it appears that the Opposite Party has recovered total amount of Rs.3,78,527/- towards the price of the shop in question.  The Complainant has made prayer that the Opposite Party also be directed to pay interest of Rs.4,802/- recovered from him by the Opposite Party vide receipt dtd.17/06/1995 cannot be granted in favour of the Complainant as it appears that the payment which the Complainant had made to the Opposite Party was not made within the stipulated period as agreed in the agreement dtd.08/01/1990. However, the Complainant has proved that the Opposite Party has without any further agreement or without having any clause in the agreement dtd.08/01/90 had recovered Rs.78,527/- from the Complainant in excess than the amount to which the Opposite Party agreed to sale the shop in question.

 8)        The submission made by the Complainant’s advocate as regards grant of interest to the tune of Rs.2,07,000/- to the Complainant from 01/01/1992 till the filing of the complaint and thereafter also till it’s realization on the ground that there was delay in delivering the possession of the shop premises in our view in view of clause 9 of the agreement dtd.08/01/1990 cannot be said justifiable. In clause no.9 there is specific mention that if the builder shall fail to give the possession on the aforesaid date i.e. 31/12/1991 or such further date as may be mutually extended then it shall be and the option of the allottee to terminate the agreement in which event the builder shall forthwith on demand refund to the allottee.  All the monies paid by the allottee to the builder together with simple interest @ 9% p.a.  from the date of the receipt of the respective amount by the builders.  He thus, pointed out the provision of Sec.55 of the Contract Act and submitted that as the Complainant did not demand anything after 31/12/1991 from the Opposite Party and accepted the possession of shop in question.  We therefore, hold that the claim of the Complainant for grant of interest on the whole consideration paid by him of Rs.3,00,000/- from 01/01/1992 till it’s realization is not at all legal and proper.  We hold that the Complainant has proved that the Opposite Party has recovered excess amount of Rs.78,527/- without providing any more area than agreed in the agreement dtd.08/01/1990 and that too on 06/11/1995and adopted unfair trade practice.  In our view the Opposite Party is liable to pay the said amount of Rs.78,527/- to the Complainant alongwith interest @ 6% p.a. from 06/11/1995 till it’s realization and cost of Rs.3,000/- towards this proceeding. In the result the following order is passed -

                                                                                                  O R D E R

                    i.                    Complaint No.743/1997 is partly allowed against the Opposite Party.

            ii.                 The Opposite Party is directed to pay an amount of Rs.78,527/- (Rs. Seventy Eight Thousand Five Hundred Twenty Seven Only) alongwith interest @ 6% p.a. from 06/11/1995 till it’s realization to the Complainant.

            iii.               The Opposite Party is directed to pay cost of Rs.3,000/- (Three Thousand Only) to the Complainant towards this proceeding.

            v.               The Opposite Party is directed to comply with the aforesaid order within two months from the date of service of this order.

           v.                 Certified copies of this order be furnished to the parties.