1.      Heard Mr. H.S.Guru Raja Rao, Senior Advocate assisted by Mrs. K. Radha, Advocate, for the appellant and Mr. K.S.Rama Rao, Advocate, for respondents-1 & 2. 

2.      Mr. N.K.Sreedhar, appellant has filed the above appeal from order of Andhra Pradesh State Consumer Disputes Redressal Commission at Hyderabad dated 20.06.2014 passed in CC No.42 of 2013 whereby the complaint has been dismissed.

3.      The office has reported that this appeal has been filed with delay of 9 days. The appellant has filed IA/5187/2014, for condonation of delay in filing the appeal. Causes shown are sufficient. Delay in filing the appeal is condoned.

4.      The appellant files CC/42/ 2013 for directing the respondents to pay compensation for deficit area of 1823.85 sq.ft. @ 3000 per sq.ft. for which the appellant was entitled under the Development Agreement dated 23.03.1995, in the main building and 1574.18 sq. ft. deficit area in stilt made for car parking along with interest @ 14% per annum from 03.06.2012 till the actual payment, Rs.50000/- as compensation for mental agony and harassment and Rs.3000/- as cost of the litigation.

5.      It has been stated in the complaint that Late N.K.Krishnaswamy, father of the complaint purchased premises No.1-11-239  (area 2261 sq. yards) situated at Begumpet, Secunderabad through sale deed dated 22.06.1964 registered as Document No.359/1964.  Late N.K.Krishnaswamy died on 14.01.1971 and was inherited by his widow Smt. N.K.Rukmaniamma and his two sons N.K.Srivastava and Shri N.K.Sreedhar (the appellant).  The aforesaid heirs filed OS No. -9 of 1990 for partition of the premises No.1-11-239, which was decided in terms of compromise by judgment dated 28.12.1990. Schedule - A of the compromise contained the share of N.K.Srivastava  i.e. 1157.30 sq. yards. in eastern side. Schedule-B contained the share of N.K.Sreedhar i.e. 798.79 sq. yards. in middle and Schedule-C contained the share of Smt. N.K.Rukmaniamma i.e. 305.sq.yards in western side.  Smt. N.K.Rukmaniamma died on 11.12.1991 and her share was inherited by the six sisters of the appellant, namely, T.P.Indira, K.Shakunthala, T.Leela Devi, M. Amruthavalli, M. Kalyani and B.Premalatha. N.K. Srivastava died in September 1994 leaving behind his widow Smt. N.Subhashini, daughter N.K.Tejashiwini and N.K.Bamasikrisna. All the co-sharers of premises No.1-11-239 entered into a Development Agreement dated 23.03.1995 with the opposite parties. Under this Development Agreement, the opposite parties agreed that 42% of the super built up area in the proposed residential complex on every floor by way of separate unit which includes car parking as mentioned in the schedule on the south western corner would be in the share of the owners and 58% of the super built up area including in car parking area would be of the builder. In pursuance of the Development Agreement dated 23.03.1995, the respondents raised construction of five storey building (total 45 flats) over premises No.1-11-239. After construction, the builder allotted eight flats to the heirs of N.K.Srivastava, five flats to N.K.Shreedhar, the appellant and three flats to the sisters of the appellant. When the construction was completed, the builder executed a Supplementary Development Agreement dated 03.06.2009 between the complainant, heirs of his brothers. As per supplementary Development Agreement dated 03.06.2009, the appellant was allotted flat Nos.101, 108 and 109 on first floor and 201 and 209 on second floor, total area 6100 sq.ft.  Apart from it, the builder has constructed a pent-house on 6^th floor and allotted flat No.603 on 6^th floor to the appellant. The builder has allotted six car parking spaces, each having 80 sq.ft. area to the appellant. Total super built up area was 53400 sq.ft.in which 42% comes to 22428 sq.ft. In which the share of the appellant to the extent of 35.33% which comes to 7923.81 sq. ft. while, the builder has allotted 6100 sq.ft. and there is deficiency of 1823.82 sq.ft. in the super built up area in the main building.  Similarly, total built up area of the stilt was 16000 sq.ft. and 42% comes 6020 sq.ft. In which the share of the appellant was 35.33% and comes to 2374 sq.ft. while, the builder on the spot has given actually five car parking space of total area of 800 sq.ft. There is deficiency of 1574 sq.ft. in stilt.  If the share of the appellant and his brothers and sisters are counted on the number of flats then there were total 45 flats and the builder has allotted only total 16 flats (8 flats to the brothers, 3 flats to the sisters and 5 flats to the appellant) and although they were entitled for three more flats in which one more flat was falling in the share of the appellant.  On these allegations complaint was filed.

6.      Respondents-1 & 2 filed their written reply on 30.05.2014 and contested the matter.  In the written reply the material facts as stated in the complaint have not been disputed. It has been stated that during construction various flats falling in the share of the appellant, the heirs of his brother and his sisters were allotted. After completion of the construction, possession was handed over to them over the flats allotted to them. Thereafter, Supplementary Development Agreement dated 03.06.2009 was executed between the parties in which the complete satisfaction has been recorded by the parties. After executing the supplementary Development Agreement, this complaint was filed with inordinate delay. Under the Supplementary Agreement, five flats in the five storied building as well as one flat on sixth Floor of the building was allotted to appellant and he has been allotted six cars parking in the stilt area. The complaint has been filed giving misstatement as well as wrong calculation in respect of main construction and stilt area of the project. It has been denied that the appellant was allotted 1823.85 sq.ft. lesser area than the area actually falling in his share. It has been denied that the appellant was entitled for Rs.5071550/- for alleged lesser area. The builder has denied service of legal notices as stated by the appellant in the complaint.

7.      The appellant filed his Affidavit of Evidence and various documentary evidence, while builder filed Affidavit of Evidence of K.Krishna Prasad. State Commission after hearing the parties by judgment dated 20.06.2014 held that the appellant did not produce any evidence to show that he was allotted 1823.85 sq.ft. less area in the main building and 1574.18 sq.ft. less area in car parking space. The appellant has not impleaded the heirs of his brothers and his sisters who have signed the Development Agreement dated 23.03.1995, as such, there was non-joinder of necessary parties. The appellant has failed to prove service of notice dated 27.09.2011 in which issue relating to 6^th car parking space only was raised.  Further the appellant has failed to prove service of notice dated 26.04.2012. Although the complaint was barred by limitation, but delay has been condoned. On these findings the complaint was dismissed. Hence this appeal has been filed.

8.      We have considered the arguments of the counsel for the parties and examined the record. So far as the finding of the State Commission is in respect of non-joinder of necessary party is concerned, the appellant has his grievances against the builder only as such the builder and its directors were impleaded as the parties. The appellant alleged that he was entitled for total 7923.81 sq.ft. in the super constructed area of five storied building. The appellant does not allege any deficiency in respect of construction raised on sixth storied i.e. penthouses. The appellant further claimed the deficiency of less allotment of car parking space to the extent of 1574.18 sq.ft., The appellant has no claim against the heirs of his brother or against his six sisters. They are not necessary party. The opposite party has not given any circumstance in their written reply as to how they were necessary party in the complaint. As the deficiency of service has been claimed against the builder alone, the builder alone were necessary parties. The provisions of Civil Procedure of Code 1908, in respect of array of party have not been applied in the proceedings under the Consumer Protection Act, 1986. Finding of State Commission in this respect is illegal.

9.      From the Development Agreement dated 23.03.1995, it is proved that heirs of Late N.K.Srivastava had share to the extent of 1157.30 sq. yards, the appellant N.K.Sreedhar had share of 798.79 sq. yards and mother of the appellant, namely, N.K.Rukmaniamma, now inherited by her six daughters, had 305 sq. yards and total area premises No.1-11-239 situated at Begumpet was 2261 sq. yards.  Thus, the ratio of the share of the appellant comes to 35.33% and he was entitled to 35.33% area in 42% of the total area falling in the share of the owners. This was a simple mathematical calculation and there was no ambiguity in it.

10.    Finding of the State Commission that the appellant has failed to prove the super built up area, is incorrect. The appellant has filed copy of sanctioned layout plan as Exhibit A-3. In the sanctioned lay out plan, the plinth area, the common area and total area of the flats have been mentioned. This area is fully tallied and corroborated with the total area of the flat as allotted to the appellant in the Supplementary Agreement dated 03.06.2009. The builder has not produced any document to contradict the area mentioned in the sanctioned lay out plan and in the Supplementary Agreement. State Commission has illegally held that deficiency of area as mentioned in the complaint of the share of the appellant has not been proved although from sanctioned layout plan Exhibit A-3, it was proved that total super built up area was 53400 sq.ft. 42% of super built up area comes to 22428 sq.ft. and its 35.33% comes to 7923.81 sq.ft.

11.    In order to show the deficiency, the appellant has given another method of calculation i.e. total number of flats in five storied building as 45 flats and 42% of it comes to 19 flats. The heirs of the brother, appellant were allotted eight flats, the sisters were allotted three flats and appellant was allotted five flats i.e. total 16 flats. Therefore, the appellant claims the area of one more flat in his share which is also fully proved. But State Commission has failed to take its notice.

12.    So far as area of stilt is concerned, the appellant has not filed any document to prove that total area of stilt was 16000 sq.ft. A perusal of supplementary agreement dated 03.06.2009 shows that the appellant was allotted total six car parking space, according to his number of his flats as one penthouse on sixth floor was also allotted to him. The appellant has not filed any additional document before this Commission to prove the deficiency in stilt area as such the finding of State Commission in this respect is not liable to be set aside.

ORDER

          In the result, the appeal succeeds and partly allowed. The builder respondens-1 &2 are directed to pay Rs.5471550/- along with interest @9% per annum to the appellant from the date of filing of the complaint till the date of its realization and also ensure his possession over six car parking spaces within a period of two months from the date of judgment.