Full Judgment
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant in OP.No.63/1998, on the file of the District Forum, Chennai (South), is the appellant.
2. It is the case of the complainant that, as per the construction agreement dt.5.9.93, the opposite party agreed to complete the construction work, and deliver the flat within 10 months from the date of the agreement. The complainant made all the payments to the opposite party, under the hope the opposite party will provide all the facilities assured. During the construction, the complainant noticed some deviation, and issued a notice requesting the opposite party, to give the breakup total built up area of his flat, for which the opposite party assured that details would be furnished at the time of handing over of the possession. Later, the complainant came to know that the opposite party had obtained the signature of the complainant in a letter, captioned as âPossession Letter on 26.9.95, as if the handed over the key of the said flat, on that day itself. On measurement, it is noticed that the complainants flat is only 1200 sq.ft., whereas the assured extent is 1495 sq.ft. As per the MMDA regulations, for every flat, having builtup area of 100 sq.meter, car parking should be provided, which is also not provided in this case. Because of the non-availability of the car park, the complainant is unable to let out the flat, profitably. In view of the illegal acts of the opposite party, the complainant has been put to irreparable loss, hardship and money. The complainant was able to fix a tenant only from September 1997, that too for lesser rent of Rs.4500/-, though the flat would fetch reasonable rent of Rs.7000/-. The Flat Owners Association is charging Rs.971/- per month, for the general maintenance of the complex. For the deficiency in area, as well as for the monetary loss sustained in renting out the premises, the opposite party should pay a sum of Rs.4,07,183/-, towards compensation. On the above averments, the complaint came to be filed not only for compensation, but also for a direction to provide car parking, as well as to rectify the deviations made in the construction of the residential complex, in violation of the building plan, approved by MMDA.
3. The opposite party denying all the averments in the written version, has stated further that the complainant was a habitual defaulter in payment of the amounts towards the instalment to the opposite party, that CMDA had certified that the construction was put up as per the plan approved, thereby showing there is no deviation at all, that the complainant took possession of the flat, agreeing what is stated therein on 25.9.95 itself, that the opposite party before taking possession of his flat, inspected every aspect of the flat, and after satisfying alone, he had signed, that the complainant had not included the common area and other area, which is also should be included, thus total area comes to 1495 sq.ft., that the complainant having agreed to take the flat without car parking, is not entitled to claim any car parking area, at present, that for renting the premises for lesser amount, the opposite party cannot be held liable, and therefore the claim should be dismissed.
4. The District Forum, exhibiting 10 documents on the side of the complainant and exhibiting 3 documents on the side of the opposite party, after hearing the arguments, evaluated the materials, which brought to surface, that the delay if any was due to the non-payment of the instalment in time, that in calculating the area, the complainant had not taken the common area and this being the position, there is no deficiency in flat area, that in view of the fact CMDA has certified there is no violation, issuing direction is also not possible, that the Commissioner Report also silent regarding the defect, and the report does not find fault, with respect of the building structure, that the complainant taken possession of the property, admitting its correctness, now denying the same, is not entitled to maintain the application. Thus concluding, further observing, that the complainant wants to enrich himself, at the cost of the opposite party, which cannot be conceded, and dismissed the complaint on 30.9.2004, which is under challenge.
5. Heard the learned counsel appearing for the parties, perused the documents and went through the written submissions made by the parties.
6. The learned counsel for the appellant, challenged the findings of the District Forum, mainly on two grounds, viz. that the District Forum failed to note that there is deficiency of about 295 sq.ft. of built up area, even as disclosed by the commissioners report, which was not taken into account, that there is violation of mandatory rules in not providing car parking area, and that because of the non-availability of the car parking area, the complainant was unable to find a tenant immediately, thereby monetary loss was sustained and these facts were not properly appreciated by the District Forum.
7. Questioning the above arguments, bringing to our notice certain documents, to which the complainant himself is a party, it is the submission of the learned counsel for respondent, that the complainant himself had agreed to take the flat without car park, that without any murmur he had also taken possession even in 1995 itself, that for the non-availability of the tenant and for the rent claimed by the complainant, the opposite party cannot be held responsible, and in this view, supporting the findings, a further submission was made for the dismissal of the appeal.
8. Ex.A1 is the Builders Agreement, under which alone, the complainant had agreed to purchase a flat, measuring an extent of 1495 sq.ft. In the first page itself, it is stated that type âA, without the car parking area. No other agreement is produced, informing the Forum or this Commission, that under the agreement, the opposite party had agreed to provide covered car parking area. There may be regulations, to provide car parking, when the built up area is more than 100 sq.mtr. That does not mean, automatically a person who disown a cark park, is also entitled to car parking area, that too, without paying the cost. The cost for the flat had been assessed or fixed, without car park, and this being the agreement, the claim of the appellant, as if he is entitled to car parking, for which a direction should be issued, is baseless, which was rightly rejected by the District Forum.
8. It is the case of the complainant, that there was inordinate delay in handing over the possession of the flat as agreed. The agreement is not one way, whereas it is mutual. The agreement provides payment, and as proved not disputed, as seen from Ex.B1, there was an outstanding of Rs.5,32,550/- since 10.12.93. It is the further contention of the opposite party that inspite of repeated reminders, the complainant has not paid the amount. Therefore, a person, who has committed default in payment of instalment, is not entitled to accuse other side, as if delayed delivery was given, for which he should be held responsible or something like that.
9. The complainant was fully aware of the fact, that possession was given to him, and infact possession also has been taken by him. Ex.A3, is the letter dt.25.9.95. A careful reading of this letter makes it abundantly clear, that vacant possession of the flat was delivered to the complainant, to his satisfaction, and to wriggle out of the situation alone, an abortive attempt is made, as if without disclosing what is what, signature has been obtained, which cannot be accepted by any Forum. If really, without disclosing what is the condent of Ex.A3, signature was obtained by the opposite party, or the complainant had no knowledge at that time, when occasion had arisen, in the year 1997, he should have informed the same. When a letter under Ex.A4 was issued, asking some payment to close the account by the builder, a reply was given on 13.2.97, as seen from Ex.A5, wherein also there was no whisper, about the deviation or deficiency in the built-up area, or the delay in handing over possession or in the possession letter, without disclosing the condent, signature was obtained or something like that. Therefore, it is our considered opinion, that the complainant knowing fully well, that flat has been constructed as per the agreement, took possession of the same, and at this belated stage, he is not entitled to dispute the same, which was rightly rejected by the District Forum also.
10. a direction is sought for, in the complaint as if there is violation of the building plan approved by the MMDA. The competent authority to say what is the violation, is the Metropolitan Development Authority. As seen from Ex.B2, on 4.7.1994 itself, the authorities concerned have issued a certificate, that the construction put up at the premises bearing D.No.A1-91, 9th Main Road, Anna Nagar, Chennai-40, was inspected and observed that the building is deemed to be as per plans approved in PP.No.B/15393/160/93. This being the position, it is impossible to say that approved plan was deviated, which should be rectified.
11. After filing the complaint, on application, a commissioner was appointed to measure the property. The commissioner, after measuring the property has stated, as if the available area is only 1171 sq.ft. It is the common knowledge that while calculating the built-up area of a flat, certain common area also has to be taken into account, since the flat owner is enjoying that common area also. Therefore, without taking into account the common area, calculating the actual area, which is under the control of the flat owner, alone, cannot be taken into account to conclude as if there is deficit in the built-up area. As submitted alongwith written arguments, super built-up area, including 15.66% of common area alone has to be taken into account to calculate the area of the flat, in that case, total area available is 1495 sq.ft., and the built up area excluding 15.66% of common area comes to 1260.88 sq.ft. What are the common areas also explained in the annexure. These common areas were not measured and taken into account by the commissioner, and therefore placing reliance upon the commissioner report, it is impossible to say, that the built-up area, handed over to the complainant is les than the agreed area. Taking the common area, it seems total area agreed has been handed over, and that is why, without any whisper the complainant has signed in the possession letter, and this being proved, fact as well as admitted fact, the complainant is not entitled to any relief, since no deficiency of any kind is made out, though many avaricious pleadings are available in the complaint.
12. The District Forum, considering all these facts, rightly dismissed the complaint, for which we will affix our seal of approval also.
13. In the result, the appeal dismissed with cost, confirming the order of the District Forum in OP.No.63/1998 dt.30.9.2004. The appellant/complainant is directed to pay a sum of Rs.2000/- towards cost to the Respondent/ opposite party.