K.V.L.Prasad, S/o. Srinivasam, Hindu,
Aged 33 years, residing at D.No.43-3-41,
Near Sri Kanya Theatre, Railway New Colony,
Visakhapatnam. ….Complainant.

vs

Ch.Bhavani Pasad, S/o.Late Ch.Prema Prasada Rao Naidu,
Hindu, aged 42 years, Residing at D.No.43-3-41,
Kameswari Nilayam, Railway New Colony,
Visakhapatnam – 16. ...Opposite Party.

O R D E R


1. The claim of the Complainant is to direct the Opposite Party to pay
the agreed amount of Rs.1,02,415/- together with interest at 24% p.a. accrues thereon from 11-01-2005 being the date of the construction agreement till the date of realisation as well as damages of Rs.30,000/-.

2. Originally, the petitioner’s claim was for refund of only Rs.39,250/-.

3. The sole Opposite Party has resisted the case of the Complainant
through a written counter. But no additional counter whatsoever, was filed by
the Opposite Party for disputing the enhanced claim of the Complainant. But
subsequently, the Complainant got his complaint amended and then claimed
for the sum of Rs.1,02,415/-.


4. The contest of the Complainant, as can be seen from the averments of
his c o mplaint filed in the case on hand, is that the Opposite Party had
constructed a building of flats in the name and style of ‘Kameswari Nilayam’
i n t he site covered by D.No.43-3-41 of the Railway Colony Area,
Visakhapatnam, and that he purchased Flat No.202 located in the 1st floor of
the above referred building of apartments from the Opposite Party on 17-03-
2004 under a registered document bearing No.608/2004 and that eversince he
has been in peaceful position and enjoyment of the said flat.

The further contest of the Complainant is that soon after purchase of that flat he verified its measurements and that thereupon, it came to light that the plinth area of his flat was only 401 sft. although the Opposite Party told him that its plinth area was 500 sft. and that therefore, there was a shortage of 99 sft. in the plinth area of his flat and as such he demanded the Opposite Party to make good of the loss of the plinth area of the flat but then the Opposite Party gave adamant answers besides threatening him with dire consequences and that therefore, he lodged a report with the concerned police against the Opposite Party but no action whatsoever was taken against him by the concerned police and as such he raised a dispute before elders and in their presence he agreed to settle the claim of the Complainant and then he executed an agreement on 31-05-2005 with an undertaking to rectify his mistake by way of shelling down the excess amount of Rs.39,250/- which was equalant to the value of the shortage area of 99 sft. and that for that purpose he issued a cheque, for that amount, drawn on the SBI Branch of Dwarakanagar in Visakhapatnam City but then he is entitled to recover a sum of Rs.74,250/- towards the shortage of the area of 99 sft. besides a sum of Rs.25,435/- being the excess amount paid by him towards the registration charges of his flat in addition to a further sum of Rs.3,600/- being the amount that was excessively paid to the Opposite Party towards electrification and thus in all total he is entitled to claim for refund of
Rs.1,02,415/-.


Yet another contest of the Complainant is that he presented the cheque, issued for Rs.39,250/-, for encashment but it was returned on the premise that ‘stop payment’ order was issued by the drawer of that cheque and 3 as such he approached the Opposite Party and then demanded him to pay that amount but he postponed the issue on one pretext or other and thereby he intentionally evaded to pay the contents of the cheque and in that view of the matter the Opposite Party rendered deficient service for him which in turn entitled him to claim for damages of Rs.30,000/- and to seek for those reliefs he preferred the case on hand.


4. Whereas the contest of the Opposite Party, inter-alia, as can be seen
from the averments of his counter filed in the case, is that it was a fact that he got constructed a multi-storied building which is a group house and that the Complainant purchased flat No.202 of that building from him and that the
Complainant owed a sum of Rs.12,996/- to him and for avoiding payment of
that amount only he preferred the case on hand.


The further contest of the Opposite Party is that the Complainant has obtained position of his flat bearing No.202 in that multi-storied building only after satisfying himself with the construction work and he made an endorsement to that effect and that the plinth area of the flat was delivered in accordance with the contract cum agreement that was clinched between him and the Complainant and that there was no shortage at all and measuring of its area through an architect or a surveyor would expose the falsity in the case of the Complainant and that therefore, the question of rendering deficient service for the Complainant does not arise at all.


The other contest of the Opposite Party is that he never threatened the Complainant and on the other hand it is the Complainant that had threatened him as well as his mother aged about 73 years and thereby extracted the impugned cheque from him and that with the help certain local leaders the Complainant manipulated the measurements of his flats and then forcibly obtained an agreement from him and thereby it is the Complainant who had caused considerable loss to him and that there was no abatement to the harassment that was meted out to him by the Complainant and that therefore, he sent a stop payment order to his banker for not honouring the cheque that was issued by him and that the Complainant filed a case under Section 138 of the Negotiable Instrument Act besides filing the present case 4 and thereby he was subjected a great deal of mental agony in as much as it amounts to double jeopardy hence to dismiss the case with costs.

5. In view of the rival contentions, referred above, the case was posted
for hearing. During the course of hearing, a commission was issued in this
case at instance of the O.P for taking out the measurements the plinth area of the Complainant’s flat bearing No.202 in that multi-storied building besides
taking the measurements of the common areas in that multi-storied building.
The learned commissioner has filed her report on 19-12-2008. The respondent
Complainant has filed his objections against that report filed by the learned
commissioner. But those objections in our considered opinion do not hold
water. Thereafter, the matter was heard. The 10 documents filed by the
Complainant were marked as Exs.A-1 to A-10. Whereas the 4 documents
filed by the Opposite Party were marked as Exs.B-1 to B-4. Heard both
sides. Perused the record.


1. What is the actual plinth area of the Complainant’s flat bearing
No.202?

2. What is the total extent of the common areas in that multi-storied
building in which the Complainant’s flat is located? If so, what is
the share of the Complainant in the total extent of those common
areas of the building?

3. Whether the share of the Complainant in the common areas of that
multi-storied building can be subsumed to the exact plinth area of
the Complainant’s flat?

4. Whether the extent of a flat in multi-storied building includes the
share of the flat owner in the common areas of that multi-storied
building?'

5. Whether the Complainant is entitled to claim for Rs.1,02,415/-?

6. Whether the Opposite Party is guilty of rendering deficient service
for the Complainant?

7. Point Nos.1 to 5: These five points are inter-related besides interdependant and as such all these points are taken up together for simultaneous discussion.

8. The first and foremost contest of the Complainant is that the
Opposite Party had informed him that the total extent of flat No.202, which he had purchased from the Opposite Party, was 500 sft. and that it was also
mentioned in the sale deed covered by Ex.A-2 that its plinth area is 500 sft.
5 and that therefore, he is entitled to claim for an exclusive plinth area of 500 sft. excluding his share in the common areas and that his share in the common areas of that multi-storied building cannot be tacked on to the plinth area of the flat.


Whereas the specific contest of the Opposite Party is that the area of a flat in a multi-storied building of flats includes the share of common areas of that flat owner and that the exact plinth area of the Complainant’s flat bearing No.202 is 373 sft. and that the share of the Complainant in the common areas of that building comes to 149 sft. and that area of 149 sft. has to be subsumed to the plinth area of his flat and thereby the total area of the flat comes to 373+140=522 and thereby he had delivered an excess area of 22 sft. for the Complainant and as such the question of delivering lesser area than the promised area does not arise at all and that the said fact was also mentioned in Annexure No.1-A available in page No.8 of his registered sale deed covered by Ex.A-2 (Xerox copy). Now let us see which of these two rival versions is correct.


9. At the outset we would like to observe that a perusal of the
Complainant’s registered Sale Deed may provide a clue to arrive at the correct conclusion regarding the aspect under dispute. The Complainant has
submitted a Xerox copy of his sale deed and got it marked as Ex.A-2. It
contains 10 pages. A perusal of page No.8 of it reveals that a form in
Annexure-1A was provided in this page no.8 of the sale deed and under
column No.4 of this Annexure-1A the break up figures pertaining to the area
of the 1st floor of that building were given.


The break up figures are given as built-up area includes the common areas. So, the total area of the Complainant’s flat bearing No.202 was given as 500 sft. which includes the share of common areas. At this juncture it is not out of place to refer the report of the learned commissioner. A perusal of it reveals that the learned commissioner, with the help and assistance of a qualified architect has measured the plinth area of the Complainant’s flat as well as the common areas of the building in which his flat is located. She filed the report given by he architect pertaining to the measurement of the plinth area of the Complainant’s flat as well as the common areas.


In page No.3 of the 6 architect’s report the plinth of area of the Complainant’s flat bearing No.202 was given as 373.75 sft. in the same place the total extent of the common areas of that multi-storied building in which the Complainant’s flat is situated was given as 2514 sft. that too after deducting the areas of the front stair case and the car parking. Admittedly there are 8 flats in that multi-storied building and as such the net common area of 2514 sft. has to be divided into 8 shares and it comes to 2514/8 = 314.25 and this has to be subsumed to the plinth area of his flat i.e. 373.75 sft. Thus in all total the area of the Complainant’s flat including his 1/8th share in the common areas comes to 373.75+314.25=688.


This in its turn goes without saying that the Complainant has got more than the area for which he was actually entitled under Ex.A-2, sale deed. Thus the
claim of the Complainant for refund of Rs.1,02,415/- does not lie in as much
there was no shortage in the area of the flat for which he is actually entitled.
Here we would like to remind ourselves that even the Flats Buildings and
Apartments Act also defines the area of a flat in a multi-storied building is
inclusive of its share in the common areas of that building. So, it is imperative
to add the share of the Complainant in the common areas to the exact plinth
area of his flat for arriving at the total area of his flat. Thus viewed from any
angle it is crystal clear that the claim of the Complainant is untenable under
law.

10. All these five points are therefore, answered against the
Complainant.

11. Point No.6: This leads us to take up the sixth point in the case on
hand which deals with the Complainant’s claim for compensation. At the
outset we would like to observe that our findings on point Nos.1 to 5 have
established the one fact that the Complainant’s claim for refund of
Rs.1,02,415/- is ill-founded in as much as the Opposite Party had delivered
more than the extent for which he was entitled under Ex.A-2 registered sale
deed. So, the question of rendering deficient service by the Opposite Party for the Complainant does not arise at all and in this view of the matter the
Complainant’s claim for compensation is proved to be a myth. In other words
7 the Complainant is not entitled to claim f or compensation from the Opposite
Party.

12. The sixth point too is answered against the Complainant.

13. In the result the complaint is dismissed but in the circumstances
without costs. Each party shall therefore, do bear its own costs.