National Consumer Disputes Redressal
Shailendra Kumar vs Jagdish A. Dialani & Anr. on 24 July, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 469 OF 2011 (Against the Order dated 26/08/2011 in Complaint No. 194/2001 of the State Commission Maharashtra) 1. SHAILENDRA KUMAR S/o Shri Sakharam P. Ghaste through his C.A. Shri Sakharam P. Ghaste, Residing at 601, Villa Flaviana, Govindrao Patwardhan Road, Off. Gokhale Road (North), Dadar (West), Mumbai-400028 ...........Appellant(s) Versus 1. JAGDISH A. DIALANI & ANR. Sole Prop. of M/s. Dialani Developers, R/o at 77, Dharmi Niwas, R.K. Mission Road, Khar (West) Mumbai-400052 2. MR. ISHWAR KAKKAD, Yogi Kripa Estate Consultants, Office at Shop No. 2, Mamta Building, 'D' Wing, Opp. Maratha Udyog, Appasaheb Marathe Marg, Worli, Mumbai-400025 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Nagraj Hoskeri, Advocate
Mr. Nihant Pankcker, Advocate For the Respondent : Mr. Subodh Gokhale, Advocate
Mr. Viraj Kadam, Advocate
Dated : 24 Jul 2018 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
The complainant / appellant along with his mother Smt. Suman Sakharam Ghaste entered into an agreement with Respondent No.1 for purchase of a residential flat for a consideration of Rs.25.00 lacs. As per Clause 2 of the said agreement, the carpet area of the flat was admeasuring about 760 sq. ft. inclusive of the area of balcony shown on the plan annexed and marked as Annexure-D. The agreement was executed on 1.6.1999 and the possession of the flat was delivered to the complainant / respondent on 26.9.1999. The grievance of the complainant is that the actual carpet area of the flat delivered to him by respondent No.1 was only 659 sq. ft. The complainant therefore approached the concerned State Commission way of a consumer complaint, seeking the balance additional area or in the alternative price of the deficient area, along with compensation. Since the flat was purchased by the complainant through respondent No.2 he was also imlpeaded as a party to the consumer complaint and compensation was sought from him as well to the extent of Rs.2,50,000/-. The complainant also sought a sum of Rs.1,10,789/- which he claimed to have paid as excess stamp duty, on account of the carpet area of the flat having been recorded as 760 sq. ft. in the agreement for sale.
2. The complaint was resisted by the respondents. Respondent No.,1 inter-alia alleged in its written version to the consumer complaint that the actual carpet area of the flat was 760 sq. ft. The State Commission vide its impugned order dated 26.8.2011, dismissed the consumer complaint. Being aggrieved the complainant / appellant is before this Commission by way of this appeal.
3. When this appeal came up for hearing on 4.6.2008, respondent No.1 was directed to file a report of a qualified Architect detailing therein the carpet area of each and every portion shown in Annexure D, which was the plan annexed to the sale agreement as well as the total carpet area of the flat as per the aforesaid plan. In compliance of the aforesaid direction, respondent No.1 has filed a report of a qualified Architect namely Mr. Hemat J. Sharma, supported by an affidavit. As per his report, the total carpet area of the flat was 674.74 sq. ft. whereas the carpet area of the servant toilet was of 51.25 s q. ft. The area of the internal wall is stated to be 19.50 sq.ft., whereas the area of the external wall is stated to be 57.49 sq. ft.
4. The contention of the learned counsel for the complainant is that the carpet area of servant toilet cannot be considered to be a part of the carpet area of the flat since the said area is regarded as a common area under the provisions of Maharashtra Ownership of Flats Act, 1963.
I have perused the agreement executed between the parties. It is evident from a perusal of the agreement that the carpet area of the flat was to be as per the plan Annexure-D to the said agreement. Servant toilet was shown as a part of the flat in Annexure-D. Therefore, irrespective of the provision of MoFA, the aforesaid area has to be taken into consideration for the purpose of deciding whether the respondent No.1 has honoured his contractual obligations or not. Therefore the carpet area admeasuring 51.25 sq. ft. has to be added to the carpet area of the bed rooms, hall etc. There is a minor dispute with respect to the area under the main door jam, bed room door jam, toilet door jam and door dam, which comes to an aggregate of 12.62 sq. ft. In my view, since a door comes over the floor of the room, the area under the door cannot be counted again, the same having been already counted as carpet area of the room / hall. Therefore, the area under the jam admeasuring 12.62 sq. ft. has to be excluded while deciding as to what is the total carpet area of the flat delivered to the complainant.
5. After deducting the carpet area under the jams and including the carpet area of servant toilet, the total carpet area of the flat comes to 713.39 sq. ft. As far as the area under the internal wall and external wall is concerned, the same, in my opinion cannot be said to be a carpet area and therefore cannot be included for the purpose of arriving at the total carpet area of the flat.
6. The total carpet area of the flat, computed in the above referred manner comes to 713.39 sq. ft. The deficient area therefore comes to 46.61 sq. ft.
7. The complainant had paid Rs.25.00 lacs for 760 sq. ft. of carpet area. The value of the deficient carpet area therefore comes to Rs.1,53,388/-. Since the complainant paid stamp duty on the entire sale consideration of Rs.25.00 lacs, he is also liable to recover the excess stamp duty, which he had to pay. The excess stamp duty paid by the complainant @ 5% of the excess sale consideration would come to Rs.7,669/-. The total amount, which the complainant is entitled to recover from the respondent No.1 thus comes to Rs.1,61,057/-.
8. As far as respondent No.2 is concerned, he cannot be in any manner held responsible for the deficiency in carpet area and therefore, no ground for awarding any compensation or refund of the professional fee paid to him is made out.
9. For the reasons stated hereinabove, the appeal is disposed of with the following directions:
(i) The Respondent No.1 shall pay a sum of Rs.1,61,057/- to the appellant / complainant, along with interest on that amount @ 9% per annum from the date of the complaint till the date of payment.
(ii) The complaint against respondent No.2 remains dismissed. (iii) There shall be no order as to costs. ......................J V.K. JAIN PRESIDING MEMBER