Judgment:
Mr. Justice Lokeshwar Prasad, PresidentâThe complainants, named above, have filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as âthe Act), averring that allured by the advertisement/brochure issued by the opposite party (hereinafter referred to as âthe O.P.), promising several benefits of the Housing Scheme, floated by the opposite party, known as âNeelpadam Kunj at Vaishali, Ghaziabad, the complainants booked a two bedroom residential flat bearing No. A-1/101, First Floor, measuring 872 sq. ft. @ 595/- per sq. ft. under the payment plan âB and alongwith the application made the requisite initial deposit of Rs. 51,000/- which was 10% of the price of the flat booked. It is stated that the brochure, issued by the opposite party, also contained a sketch of the flat with the dimensions of the various constituent units specifically mentioned and also other subsidiary items such as balcony, staircase, etc. thereby giving an indication as to the manner in which the total area of 872 sq. ft. was calculated. It is further stated that the complainants, as per the terms and conditions of the agreement, paid instalments towards the price of the flat in question as detailed in para 5 of the complaint. The case of the complainants is that by 3rd November, 1992, the complainants in all paid a sum of Rs. 1,92,710/- which was in excess of the amount of instalments demanded vide call letter dated 16th June, 1992. It is stated that having paid more than the amount of instalments, demanded by the opposite party towards the price of the flat in question, the complainants were anxiously awaiting early possession of the flat but the functionaries of the opposite party delayed the completion/possession of the flat in question on one pretext or the other and the complainants, during the course of discussions, were informed that due to reallocation of flat numbers, the number of complainants flat had changed from A-1/101 to C-1/101. It is stated that the representative of the complainants, in good faith and also in the hope to get the possession expedited, agreed to the change of flat number and gave an acknowledgement on the same day i.e. on 4.11.1992 (Annexure R-1). It is further stated in the complaint that in order to preclude the possibility of any misinterpretation, the representative of the complainant in the letter dated 4.11.1992 (Annexure R-1) included the words âearlier known as A-1/101â.
2. It is stated that to the utter dis-appointment of the complainants, the complainants received letter dated 3rd December, 1992 (Annexure A-10) from the opposite party offering another flat (No. C-1/101 Neelpadam Kunj), measuring 1097 sq. ft. in place of flat No. A-1/101, measuring 872 sq. ft., booked by the complainants. The opposite party, it is alleged, that with a view to coerce and harass the complainants, vide above mentioned letter, required the complainants to pay price for an area of 1097 sq. ft. within the stipulated period failing which the allotment of the flat was threatened to be revoked without any further notice.
3. After the receipt of the above mentioned letter dated 3rd December, 1992 the complainants addressed letter dated 16.12.1992, explaining and reiterating the actual position and agitating the unilateral and arbitrary action on the part of the opposite party. It is alleged that instead of clarifying and replying the points raised in complainants letter dated 16.12.1992, the opposite party resorted to unjustified and illegal action of revoking the allotment of the flat vide letter dated 24.12.1992 (Annexure A-12). It is stated that in spite of the above arbitrary action on the part of the opposite party, the complainants, vide their letter dated 19.1.1993, again approached the opposite party with a request to appreciate the actual position but the complainants received a cold reply from the opposite party vide letter dated 20.1.1993 (Annexure A-14).
4. It is stated that the authorised representative of the complainants, vide letter dated 4.11.1992 (Annexure R-1) had simply agreed to the change in the number of the flat from A-1/101 to C-1/101 and not to the flat itself. No revised terms and conditions were ever proposed or agreed to either by the complainants or by their representative who had signed letter dated 4.11.1992 on behalf of the complainants. The grievance of the complainants, in the present complaint, in brief, is that the opposite party has unilaterally and without any basis revised the area and the price of the flat on flimsy grounds which is contrary to the terms of allotment. The complainants, in the present complaint, have prayed for the grant of following reliefs :
(i) that the possession of flat No. A-1/101, 1st floor, Neelpadam Kunj, Vaishali, Ghaziabad at the price indicated in the brochure and other relevant documents be given to the complainants;
OR
in the alternative the amount indicated below be paid by the opposite party to the complainants :
| (a) | Amount of instalments paid = | Rs. 1,92,710/- |
| (b) | Interest @ 24% p.a. on the above amount calculated upto 28.2.1992 = | Rs. 91,720/- |
| (c) | Compensation for mental torture and agony suffered. = | Rs. 50,000/- |
| (d) | Expenses = | Rs. 15,000/- |
| Total = | Rs. 3,49,430/- |
7. The complainants have filed rejoinder to the written version/written statement controverting the pleas taken by the opposite party and reiterating the averments made in the complaint.
8. The parties have adduced evidence by means of affidavit. On behalf of the complainants an affidavit of Sh. V.M. Aggarwal, authorised representative of the complainants, has been filed. On behalf of the opposite party an affidavit dated 6th December, 1993 signed and sworn by Sh. A.K. Rajvanshi, Assistant General Manager (Legal) has been filed.
9. We have heard the learned Counsels for the parties at length and have also carefully gone through the documents/material on record. The main grievance of the complainants, in the present complaint, as stated by the learned Counsel for the complainants, is that the complainants had booked a flat, measuring 872 sq. ft. @ 595/- per sq. ft. with the opposite party and as against the above booking a different flat, measuring 1097 sq. ft. in area was allotted to the complainants by the opposite party unilaterally, in an arbitrary manner thereby requiring the complainants to pay price for an area of 1097 sq. ft. as against 872 sq. ft., booked by the complainants. On the other hand, the learned Counsel for the opposite party stated that in the application form itself, it was specifically mentioned that the area of 872 sq. ft. shown in the brochure was approximate and not exact. It was stated by him that whenever a buyer makes an application, the area mentioned in the application is always shown as approximate and as per the prevailing practice, the immovable properties are always priced with reference to the super area. It was further stated by him that the complainants were bound to pay for the super area and the additional area which was to be given to them and on their failure to do so, the opposite party was well within its rights to revoke the allotment vide letter dated 24.12.1992 (Annexure A-12).
10. On the basis of material on record it is not in dispute that the complainants had booked a residential flat, measuring 872 sq. ft. @ Rs. 595/- per sq. ft. with the opposite party at Neelpadam Kunj, situated at Vaishali, Ghaziabad. It is also not in dispute that the opposite party, as against the abovesaid booking, allotted a flat bearing No. C-1/101, Neelpadam Kunj, Vaishali, Ghaziabad, measuring 1097 sq. ft. On a perusal of letter dated 3.12.1992 (Annexure A-10) it is apparent that the flat offered to the complainants by the opposite party against their booking had an additional super area of 167.92 sq. ft., area of balconies 38.21 sq. ft. and area of cupboard niches, etc. 27.12. sq. ft. If calculated, the abovesaid additional area comes to 233.25 sq. ft. Nothing has been brought on record to show that the complainants were bound to pay for the abovesaid additional area. As regards the argument advanced by the learned Counsel for the opposite party that in the application form and in the brochure the area mentioned was approximate and not exact, the same has also failed to impress us because the word âapproximate indicates that the area could be more or less only by a few sq. ft. Decidedly, the same does not mean considerable variance as in the present case. Moreover, the present case, filed by the complainants, stands fully covered by a decision of this Commission in case Dr. Raghubir Singh Jain and Anr. v. Ansal Housing and Construction Ltd., II (1995) CPJ 95.
11. For the foregoing reasons and also following the decision of this Commission in Dr. Raghubir Singh Jains case (supra) we partly allow the complaint and direct the opposite party to pay to the complainants a sum of Rs. 1,92,710/- with interest @ 15% p.a. from the date(s) of deposit till actual payment within three months failing which action shall be taken against the opposite party under Section 27 of the Act. The opposite party is also directed to pay costs of the proceedings which is quantified at Rs. 2,500/- and awarded to the complainants jointly.
Complaint partly allowed.