National Consumer Disputes Redressal
Mahavir Adgonda Patil vs Deepa Narendra Shetty on 3 October, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3308 OF 2012 (Against the Order dated 15/11/2011 in Appeal No. 1215/2010 of the State Commission Maharashtra) 1. MAHAVIR ADGONDA PATIL R/o Galli No -6 Jaysingpur Tal Shirol Kolhapur Maharastra ...........Petitioner(s) Versus 1. RAJENDRA SURENDRA SHETTY R/o 9th Galli Jaisingpur, Tal. Shirol Kolhapur Maharastra ...........Respondent(s) REVISION PETITION NO. 3309 OF 2012 (Against the Order dated 15/11/2011 in Appeal No. 1216/2010 of the State Commission Maharashtra) 1. MAHAVIR ADGONDA PATIL R/o Galli No -6 Jaysingpur Tal Shirol
Kolhapur Maharastra ...........Petitioner(s) Versus 1. DEEPA NARENDRA SHETTY R/o At Cts No-117/1B Flat No-103,tal Shrirol Kolhapur Maharastra ...........Respondent(s) BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER For the Petitioner : Ms. Vaidruti Mishra, proxy counsel For Ms. Prachiti Deshpande, Advocate For the Respondent : Ms. Shital M. Potdar, Advocate Dated : 03 Oct 2018 ORDER These revision petitions have been filed by the petitioner, Mahavir Adgonda Patil against the order dated 15.11.2011 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, 'State Commission') in FA Nos. A/10/1215 and A/10/1216.
2. Brief facts of these cases are that respondents in these two revision petitions have filed the complaint before the District Forum stating that there was deficiency in service on the part of the petitioner/OP as the petitioner has handed over flats of less areas than mentioned in the sale agreement and the registered deed. The District Forum in complaint no. 263/2008 which was filed by Ms. Deepa Narendra Shetty (Respondent in RP No.3309/2012) passed the following order:
"1. The complaint of the complainant is partly allowed.
2. The defendant has to pay to the complainant, the compensation of Rs.1,44,200/- (Rupees one lac forty four thousand two hundred only) calculated at the rate of Rs.700/- for area admeasuring 206 sq. ft. which was not given by the defendant.
3. The defendant has to pay an amount of Rs.5,000/- to the complainant as compensation of mental harassment.
4. The defendant have to pay an amount of Rs.1,000/- to the complainant as cost of the complaint."
3. Similarly, the District Forum in complaint no. 264/2008 which was filed by Shri Rajednra Surendra Shetty (Respondent in RP No.3308/2012) directed the OP/petitioner herein to pay Rs.1,51,200/- to the complainant alongwith compensation of Rs5,000/- and cost of complaint as Rs.1,000/-.
4. The appeal was preferred in both the cases by the OP/petitioner herein. The State Commission dismissed both the appeals bearing no. A/10/1215 and A/10/1216 filed by the petitioner vide its order dated 15.11.2011.
5. Hence, the present revision petitions.
6. The matter was listed for final hearing on 2.7.2018. Learned counsel for the petitioner was not present, however he was represented by Proxy Counsel. Learned counsel for the respondents had stated that she has already submitted written statement and the same may be treated as her arguments. Liberty was granted to the learned counsel for the petitioner to submit the written submissions on behalf of the petitioner as well.
7. I have considered the written arguments submitted by both the sides and have examined the material on record.
8. In both revision petitions, it has been submitted by the petitioner that the complainant/respondent has taken the misadvantage of the small ambiguity in the Development Agreement. The development agreement clearly mentions that the area to be given to the respondents is 1121 sq. ft. and 708 sq. ft. in RP No.3308 of 2012 and 3309 of 2012 respectively. The ambiguity is such that, whether the mentioned area is built up area or super built up area or carpet area is not mentioned. The State Commission has erroneously and baselessly observed in the impugned order that they have personally gone through the Development Agreement and it clearly mentions that 1121 sq. ft. and 708 sq. ft. built up area was promised. The petitioner herein firmly and specifically submits that nowhere in the development agreement it has been mentioned that the 1121 sq. ft. and 708 sq. ft. area is the built up area. The observations in the impugned order are baseless and arbitrary and wrongly interpreted. It was submitted that flats were handed over to the complainants as per specifications given in the schedule to the agreement. This Commission as on 1.3.2017 vide its order had specifically directed the respondent counsel to measure the area again and to apprise and file affidavit that whether the flat handed over is as per the specifications or not. During the pendency of the complaint before the District Forum, Kolhapur, the learned District Forum had appointed the Court Commissioner to inspect the said area. As per the report of the Court Commissioner, the area granted is actually 905 sq. ft. and 503 sq.ft. built up area in RP No.3308 of 2012 and 3309 of 2012 respectively. Again in this regard it is specifically submitted if the said report is perused, nowhere it is mentioned that the flats are not as per the specifications. It is apparent from the impugned order that the deed of declaration was executed between the parties, registered under the Maharashtra Apartment Ownership Rules, 1972 wherein it is clearly mentioned that the area of 1121 sq. ft. and 708 sq. ft. are the super built up area in RP No.3308 of 2012 and 3309 of 2012 respectively and hence the vagueness is cleared in the Deed of Declaration which is binding on the parties. The flat has been given as per the dimensions mentioned in the Development Agreement and the Deed of Declaration and hence there is no deficiency in service by the petitioner as wrongly alleged by the complainants/respondents.
9. On the other hand, learned counsel for the respondents submitted that a civil suit , namely, Regular Civil Suit No.156/2008 was filed by the petitioner against some flat purchasers, wherein one of the respondents was also included. The Civil Judge, Senior Division, Jaysingpur vide its order dated 1.1.2013 dismissed the suit. The suit was for changing the area in the registered deed. Thus, in fact the petitioner has already taken up this matter before a competent court. However, he has not been allowed to change the area in the registered deed. Thus, he is now barred from raising the same plea before any of the consumer forum including this Commission. It has further been submitted that total four complaints were filed against the petitioner by different consumers before the Consumer Forum, Kolhapur. All these four complaints have been allowed by the Forum and the appeals filed by the petitioner builder were also dismissed by the State Commission. Other two revision petitions were filed by this petitioner before this Commission in addition to these petitions. The numbers of these petitions are Revision Petition No.2173 of 2012 and 2174 of 2012 which have been dismissed by this Commission on 13.2.2013. It has been prayed that these revision petitions be also dismissed on the same lines as the facts are similar . It was further submitted that in compliance of order dated 1.3.2017 of this Commission, respondent in RP No. 3308 of 2012 has filed affidavit dated 27.12.2017 and similarly respondent in RP No. 3309 of 2012 has also filed affidavit on 29.12.2017 in compliance of the same order dated 1.3.2017 of this Commission. Thus, it is wrong to say that respondents have not complied with the order dated 1.3.2017 of this Commission as alleged by the petitioner.
10. I have given a thoughtful consideration to the submissions made by both sides and have examined the material on record.
11. The basic question involved in the present cases is regarding the area of the flats. In respect of RP No. 3308 of 2012, when the respondent got the possession, it was found that area was only 780 sq. ft. against the agreed total area of 1121 sq. ft. and in RP No. 3309 of 2012, when the respondent got the possession, it was found that area was only 509 sq. ft. against the agreed total area of 708 sq. ft. as mentioned in the agreement. The dispute has arisen because in the agreements it is not clearly mentioned whether the agreed area to be given is covered area, built up area or super area. Though the State Commission has mentioned that it is written in the agreement as built up area, but, on perusal of the agreement, it is not corroborated. Because of this confusion, this dispute has arisen. It is quite likely that both the parties agreed for this confusion with the intention of deriving different benefits at a later stage. The agreements also mentioned in schedule the specifications of all the rooms and spaces in sq. ft. The architect/Court Commissioner has not mentioned the dimensions of rooms or other spaces and it has not compared with the areas mentioned in the schedule. Similarly by order dated 1.3.2017 the respondents were also asked to clearly indicate the dimensions of the rooms and other spaces in comparison to those mentioned in the schedule of the agreement, but they have also not given clear information in this regard. In the affidavit filed by the respondent in RP No. 3308 of 2012 only the following has been mentioned:
"Similarly there is variance in actual measurement of the rooms allotted and in those measurements mentioned in the Development Agreement. Hence, on these grounds petitions were filed Civil suit for Rectification of Documents in the Civil Court at Jaysingpur vide R.C.S. No.156/08 & R.C.S. No. 201/08. In those matters after hearing of the cases it was revealed in the cross examination of the petitioner that there were mistakes in the measurements and he has admitted that in spite of realizing the mistakes in agreement, the Development Agreement was executed. The Civil Court has therefore dismissed the petition of the petitioner.
The Civil Judge Senior Division, Jaysingpur has once decided that total area mentioned in development agreement i.e. 1100 sq. ft. and 1290 sq. t. for Respondent no.1, Rajendra & Respondent no.2, Narendra is correct one. The suit for rectification of document is filed by petitioner bearing No.RCS No. 156/08 is dismissed with cost again the petitioner cannot complain about the same fact when the suit is finally decided. But as per the direction given by Honourable Court we are stating those facts on affidavit stating that the petitioner has not given us the flat of constructed area as agreed by him in development agreement dated 14.2.2005.
12. From the above, it is clear that it is not possible to compare the dimensions of the rooms and other spaces as given in the schedule with the actual areas as neither the Court Commissioner/architect nor the respondents themselves have given any such measurements. It is also seen that there is a difference between the total added area of all the rooms and spaces given in the schedule and the area mentioned in the agreements for both the flats.
13. Respondents/Complainants have also mentioned that for similar matters RP No.2173/2012 and RP No. 2174/2012 were filed before this Commission and same were dismissed. A perusal of the order dated 13.2.2013 passed by this Commission shows that the order of the District Forum was upheld by this Commission which was in respect of the repair charges for common facilities and this order does not throw any light on the question involved in the present cases.
14. Both parties i.e. complainants and petitioner have accepted the area written in the agreements as only 1121 sq. ft. and 708 sq. ft. There is no basis to check whether this was a super area, built up area or carpet area. The dimensions given in the schedule have also not been corroborated or controverted by either the report of the Court Commissioner/architect or by the respondents in their affidavits filed after specific direction from this Commission vide order dated 1.3.2017. In such situation, when both the parties to the agreement have agreed to keep the area in sq ft. only without clarifying it to be covered, area, built up area or super area, in my view, both parties are at fault and full advantage of this confusion cannot be given to the complainants nor full advantage can be given to the OP for not writing the clear area in the agreement. In such case, I am of the opinion that respondents are entitled to only 50% of the amount ordered by the District Forum and confirmed by the State Commission.
15. Based on the above discussion, the RP Nos. 3308/2012 and 3309/2012 are partly allowed. In RP No.3308 of 2012 the petitioner is liable to pay 50% of the amount ordered by the District Forum viz. 50% of Rs.1,51,200/- i.e. Rs.75,600/- alongwith interest @ 5% p.a. from the date of the order of District Forum i.e. 30.3.2010. Similarly, in RP No.3309 of 2012 the petitioner is liable to pay 50% of the amount ordered by the District Forum viz. 50% of Rs.1,44,200/- i.e. Rs.72,100/- alongwith interest @ 5% p.a. from the date of the order of District Forum i.e. 30.3.2010. Accordingly, the orders of the fora below stand modified.
16. This order be complied with by the petitioner within a period of 60 days from the date of this order.
...................... PREM NARAIN PRESIDING MEMBER