Alleging deficiency in service on the part of opposite party builder, the complainants have filed this complaint praying the following releifs:-

“It is, therefore, prayed that this Hon’ble Commission may be pleased to:

a/              allow this complaint and grant the followings reliefs;

(i)                 Simple interest @ 12% p.a

On Rs. 37,17,390/- Rs. 34,22,825.00

(ii)               Simple interest @ 12%

p.a.  on Rs. 4,37,340/-  Rs.   2,15,887.00

(iii)             Amount liable to be reimbursed

For wrongful charging of higher

Rate per sq. ft. on increased area

In contravention of clause 3 of

Agreement dt. 11.1.19991. Rs.  1,10,261.00

(iv)             Amount to be paid towards

Loss of rent on NOIDA property: Rs. 6,00,000.00

(v)               Towards mental agony,

And litigation cost: Rs. 1,00,000.00

                                                       ----------------------

                                                            Total :                         Rs.42,33,886.00

            b/             award pendente lite interest at the rate of 12%.”

2.       In nutshell, the case of the complainant is that vide an agreement to sell dated 11.1.1991 he had agreed to purchase a Flat No.607, Silver Arch, 22, Feroz Shah Road, New Delhi from the opposite party – builder at a total price of Rs.43,732,400/- and the tentative area of the flat was to be  2194 sq. ft. with terrace area of 707 sq. ft.  The complainant paid the entire price of the flat but when the construction of the flat was completed and possession was to be handed over, it was found that the flat allotted to the complainant had excessive area in so much so that there was an increase of  249.64 sq. ft. in the super covered area and 150.83 sq. ft. in the terrace area.  According to the complainant, he was liable to pay for this additional area as per the original price fixed, i.e, Rs.1,800/- sq. ft. for the super area and Rs.600/- sq. ft. for the terrace area.  However, when it came to settling the accounts, the opposite party gave a bill dated 11.3.2001 asking for a total sum of Rs.10,07,362/-, out of which Rs.2,18,670/- was demanded as the balance installment / price of the flat taking into account the excess super area and the terrace area.  According to the complainant , this amount has been worked out by the opposite party illegally and erroneously for escalated price for the flat and the terrace area. Although the amount was paid by the complainant as he wanted the possession without any delay but reserving his right to claim back any excessive amount so paid. As noted above, besides this, complainant had claimed various other reliefs.

3.      The complaint has been resisted by the opposite party – builder by filing a detailed written version thereby denying any deficiency in service on its part and maintaining that the bill so issued by the opposite party were in accordance with the terms & conditions of the sale agreement and that they have committed no illegality. Liability to pay any compensation as sought for or any other amount as compensation is denied.

4.      In the rejoinder, the complainant has controverted the objections and pleas taken up by the opposite party and has generally reiterated the averments and allegations made by it in the complaint.  Along with the rejoinder, complainant has also filed a statement of computation showing the amount charged for increased area in contravention of clause 3 of the Agreement to Sell dated 11.1.1991 besides other documents.

5.      It would appear that besides this complainant, certain other complainant, namely, Taranjit Singh who had also purchased a flat in the same building had filed an original petition No. 36 of 2001 claiming almost the same reliefs as stated above except relief no.3 (supra). The said complaint was decided by this Commission vide an order dated 30.09.2005. It would further appear that said order having been brought to the notice of the Commission and on a concession made by the counsel for the complainant  on 06.11.1009, following order was made:-

“Counsel for the parties present.  Learned counsel for the opposite party states that the matter in issue is fully covered by the judgment dated 30.09.2005 passed by this Commission in O.P. No. 36 of 2001.  Learned counsel for the complainant concedes that the judgment will cover except the prayers 1 (iii) which reads as follows:-

Amount liable to be reimbursed for

Wrongful charging of higher rate

per sq. ft. on increased area in

contravention of clause 3 of

agreement dated 11.1.1991 Rs. 1,10,261.00

Learned counsel for the opposite party states that he will take instruction from opposite party on this aspect and place correct position in respect thereof and will assist the Commission to resolve the issue referred to above. For this purpose, counsel for the parties seek adjournment.

Adjourned to 21.1.2010 for direction.”

6.      In view of the above order, the controversy in the present complaint  is now restricted only to the prayer clause 3 of the relief (supra) and no other relief.  We would, therefore, restrict our scope of consideration only to decide the claim of the complainant in regard to clause 3 of the relief.

7.           Learned counsel for the complainant has referred to the agreement to sell dated 11.1.1991 and in particular has invited our attention to clause 3.  The latter part of clause 3 which is to the following effect:-

“3 ………………………………………………………………………..

Further, as a result of such changes, if there is any increase / decrease in the super area, described above, revised price will be applicable at the original rate at which the said Apartment was booked / allotted. However, for any reason whether within or outside the control of the Developers, the Developers is not in a position to transfer the said Apartment to the Allottee (s), as agreed herein, the developers shall be responsible to consider any alternative property or to refund the amount in full with simple interest at the rate of 12% p.a.

8.      On the strength of this clause, the submission of the learned counsel is that the opposite party – builder could charge the same price, i.e., Rs.1800/- per sq. ft. for the super area and Rs.600/- for the excessive terrace area and no more. Learned counsel for the complainant has taken pains to give us a statement showing in detail the calculations as to how the complainant support his claim of the opposite party having charged a sum of Rs.1,10,758/-  in excess of the price agreed to and as built by the opposite party.  We may also refer to the bill dated 11.03.2001 and the revised statement of account accompanied with the said statement (Ex. P-17 colly).  A perusal of this statement of account would show that the complainant had shown the total price of the flat at Rs.50,23,510/- and after adjusting the sum already received, i.e., Rs.41,54,730/- as demanded a sum of Rs.8,68780/- as the balance amount of installment / price of flat. There being no dispute in regard to area of the flat which was given to the complainant including the excess area, the super area comes to 2443.64 sq. ft. and 857 sq. ft. for the terrace area. If we compute the price of the flat going by the rate of Rs.1800/- per sq. ft. for the super area and Rs.600/- sq. ft. for the terrace area, the price of the flat would come to Rs.49,13,250/- as against which the opposite party had charged Rs.51,52,092/-. After deducting the amount already received by the opposite party, the opposite party could have at best charged a sum of Rs.6,50,110/-. This would mean that the opposite party has charged a sum of Rs.1,10,758/- in excess. Except taking bald and general plea that the amount was calculated as per the terms of the agreement and there is no illegality thereon, nothing contrary has been brought on record to justify the charge of this excess amount of Rs.1,10,758/-.  In our view, even if the complainants are not entitled to any other relief as was sought for, he is certainly entitled to refund of the sum of Rs.1,10,758/- paid by them in excess of the price fixed.

9.      Mr. Sukumar Pattjoshi, learned counsel representing the opposite party – builder also submitted that the complainant is liable to pay interest for the delayed payment of the installment.  A statement to that effect has also been filed on record though belatedly.  In our view, this claim is not only belatedly filed but highly unjust because going by their own statement of account dated 11.3.2001 which shows no amount of interest due or payable by the complainant  on the date of possession, the complainant cannot be asked to pay any interest at this stage of the case.

10.           Having considered the matter in its entirety, we are of the view that the complaint must be partly allowed so far as it seeks refund of Rs.1,10,758/- as the excess price paid by the complainant to the opposite party.  Since this amount remained with the opposite party – builder for a considerable period and was not refunded, we consider it appropriate to award compensation to the complainant by way of interest on the said amount.

11.    In the result, the complaint partly succeeds and the opposite party – builder is hereby called upon to pay a sum of Rs.1,10,758/- with interest @ 9% p.a. w.e.f. 11.3.2002 till its payment.  We call upon the opposite party to make the payment within four weeks from the date of this order, failing which rate of interest shall stand enhanced to 12% p.a. Complaint shall be deemed to have been dismissed qua other reliefs.  Parties are left to bear their own costs.