Order No. 05

Complainant no. 2 is present in person.

Ld. Advocate for the opposite party is present.

The application under Order 26 Rule 9 C.P.C. filed by opposite party nos. 2 and 3/petitioners is taken up for hearing.

Perused. Considered.

Heard both sides.

Ld. Advocate for the opposite parties/petitioners submit that the flat in question has already been constructed and handed over to the complainants. Both parties entered into an agreement for sale dated 20.08.2017, wherein in paragraph no. 1 and in Second Schedule, it has been mentioned that the actual area of the unit shall be determined after final measurement at the time of giving final possession and the purchasers shall accept the said area on any variation either increased and/or decreased without raising any objection thereof.

It is the contention of the opposite party nos. 2 and 3 that the complainants booked a flat measuring 300 Sq.ft. on the ground of the building but after construction, the opposite party handed over the flat on the ground floor as mentioned in agreement for sale dated 20.08.2017 about 350 Sq.ft. built up area.

Therefore, the Engineer Commissioner is required to be appointed for measurement of the said flat.

Both parties submit that the complainants are in possession of the said flat at present.

It is apparent that the complainants have accepted the flat and took its possession in view of the terms mentioned in agreement for sale dated 20.08.2017.

On scrutiny of the agreement for sale, we find there is no whisper that the complainants will be liable to pay any amount for any enhanced area of the flat or complainants will get refund proportionately if any area is decreased of the constructed flat.

In view of the above, we are of the opinion, as the complainants have not objected to the area of the flat in question and accepted the possession thereof, an Engineer Commissioner is not required to be appointed in this case in view of the terms and conditions mentioned in the agreement for sale dated 20.08.2017.

Therefore, the Misc. Application dated 13.04.2013 lacks merit and liable to be dismissed.

Hence, it is,

Ordered

    that the Misc. Case be and the same is dismissed on contest but with cost of Rs. 2,000/- (Rupees two thousand) only.