PER SHRI.S.S. PATIL – HON’BLE MEMBER
1) This is the case regarding unfair business practices adopted by the Opposite Parties by overstating the carpet areas of flats of the Complainants and thereby causing financial loss to the Complainants as alleged by the Complainants.
As per record this complaint has been filed by the Complainants on 30/09/08. The facts alleged by the Complainants are that, they are the flat purchasers under SRA Scheme and Opposite Party No.1 is the Promoter, Builder, Developer and Seller of the said flats as per agreement. It is stated by the Complainants that Opposite Party No.3 as the Chief Promoter sold different flats to the individual Complainants, overstating the carpet area of their flats having typical floor plan. In support of the above contention the Complainants have attached the relevant text of agreement, flat wise. Here it is observed that the Complainants have not attached the copies complete agreements of the relevant flats but attached only the some of the pages of the agreement and according to the Complainants, they are relevant text of the flat wise agreement.
2) Further it was requested by Complainants to peruse the checkered portion of flat no.605. The actual areas as per the dimensions in the plan come to 225 sq.ft. Whereas the carpet areas mentioned in the agreement is 294. Thus, all the seven complainants received the less carpets area than what is stated in the agreement of sale of their flats. The Complainants have annexed the table showing the flat wise reduced carpet areas received by them.
3) In this respect the Complainants have made a complaint to the Dy. Controller of the weights and Measures vide their letter dtd.29/03/07. The said complaint is still pending implementation. The Complainants have taken up this matter with the Forum before expiry of 10 years from the date the Complainants put in possession of their respective flats.
4) Thereafter the Complainants have averred that due to the overstating carpet areas in the agreements they had to incur unwarranted excessive stamp duty amounts and excessive registration fee. The Complainants have suffered due to wrong and higher carpet areas specified by Opposite Parties. Finally the Complainants prayed that the claims mentioned in tabulation I, II and III and cost of the complaint be granted. In tables I II & III the total amount prayed as a relief is Rs.2,60,802/- as the cost of flats excess paid, excess stamp duty and registration charges and interest on it.
5) The Complainants attached the xerox copies of the following documents alongwith the complaint –
a) Flat wise agreement for sale of the Complainant No.1 to 7 respectively consisting of only front page, page no.7 and plan
of the flats. (agreements 1) dtd.06/05/99, 2) 19/07/99, 3)30/11/09, 4) 21/02/2000, 5) 09/05/02, 6) 04/11/99, 7) 06/01/2000).
b) Letter dtd.29/03/07 addressed to Dy. Controller, Weights and Measures, Mumbai.
c) Table I, II & III showing financial claim of the Complainant.
6) Notices were served to the Opposite Parties. The Opposite Parties appeared through their advocates. Opposite Party Nos.1, 3 & 4 filed their authorization letter authorizing the Opposite Party No.2 to file a reply to the complaint. Opposite Party No.2 filed only a reply to the delay condonation application of the Complainants wherein he opposed the delay condonation application on the following grounds –
i) The delay has not been explained as day today delay has to be explained.
ii) The Complainant has not stated in the complaint as to when cause of action arose and how much delay has been caused to file the complaint
iii) The compliant has been filed by the individual members of the Suri Rajendra SRA Co-operative Housing Society in their personal capacity. However, the delay condonation application has been filed by the Chairman of the said society in the capacity of the Chairman of that cooperative society.
7) Complainant No.7 also filed his reply to the above said application of the Opposite Party wherein the Complainants has not stated anywhere in this reply as well as in the complaint as to when the cause of action arose. On the contrary it was averred that it is well within the permissible period of two years from the date on which cause of action has arisen.
8) We heard Complainant No.7 who was present at the time of oral argument and also the Ld.Advocate for the Opposite Parties. We also perused all the documents filed by all the parties and our finding are as follows –
The Complainants have not stated anywhere in the complaint as well as in the delay condonation application as to when the cause of action arose. Therefore, when we went through the complaint, we have gathered that the agreements of sale of the flats were executed by the parties between 06/05/99 to 09/05/02. However, the Complainants have suppressed the facts as to when they took the possession of their respective flats admeasuring the area specified in the agreement for sale. They have also suppressed the fact as to when they had to pay the excess registration fee and stamp duty. The Complainants have presumed and have stated in their application para Nil that “Thus there has been an inadvertent delay of nearly 19 months in filing the complaint from the date 10/03/07 on which the cause of action has arisen and as such, it is well within the limitation of two years.” Thus, the Complainants have presumed that the cause of action has arisen on 10/03/07 on which they detected that the Opposite Parties had overstated carpet area of their flats. However, the agreements were executed in the year 1999, 2000 & 2002. The plans of the flats are parts of the agreement. Therefore, the discrepancy in the carpet area mentioned in the body of the agreement and the plan must have been in the knowledge of the Complainants when they signed the agreement for sale and at the time of taking possession of the flats. Therefore, it is clear from these facts that the cause of action has arisen in the month of 1999, 2000 and 2002 and when the possession of these flats was taken by the Complainants. It is much earlier to 10/03/07 as presumed by the Complaints for their convenience. On the page, para nil the Complainants have averred that “We think, we would better take this up with this Forum more expressly before the expiry of 10 years from the date our sellers put up in possession of our respective flats. This averment certainly indicates that the Complainants had been put in possession of their flats by the Opposite Party 10 years before 30/09/08 i.e. the date of filing this complaint and they must have and supposed to know the actual carpet area of their respective flats 10 years before filing the complaint. Thus, it is clear that there in an inordinate delay in filing this complaint. Therefore, the contention of the Complainants that the complaint is filed within the period of limitations of 2 years is misconceived and based on wrong notion of facts and law. They have not explained the delay caused in filing the complaint. Therefore, the complaint is barred by limitation and hence, it is dismissed as barred by law of limitation.
9) In view of the above observations, we pass the following order –
O R D E R
i)Complaint No.189/2008 is hereby dismissed with no order as to cost.
ii)Copy of this order be furnished to both the parties.
