CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



Date of Filing: 08/02/2001

Consumer Complaint No.42/2001

Date of Order: 22/05/2009



Mr.Allwyn Fernandes, Complainant

Escada, Flat No. 11 && 12,

102, Rebello Road,

Bandra(W),

Mumbai- 400 050.



V/S



1. M/s. Trison Builders, Opp.Parties

“Alsid:, 34, St.Andrews’ Road,

Bandra,

Mumbai- 400 050.

2. Mr.Sudney Lobo,

Partner

3. Mr.Rohit Lobo,

Partner,

4. Mr.Sudhir Lobo,

Partner

M/s. Trison Builders,

“Alsid: 34, St. Andrew’s Road,

Bandra,

Mumbai- 400 050.





Corum : Justice Mr.B.B.Vagyani, Hon'ble President

Mr.S.R.Khanzode, Hon’ble Judicial Member.



Present: Adv.Shri U.B.Wavikar @ Adv.Shri M.S.Naikfor complainant.

Adv.Shri Denzil D’mello for opposite party.



:- ORDER :-

Per Shri S.R.Khanzode, Hon’ble Judicial Member:

Disputed facts are that complainant/ Mr.Allwyn Fernandes entered into a development agreement as per Memorandum of Understanding (MOU) dated29/11/1993 and accordingly, surrendered his property for development to opposite party no.1/M/s.Trison Builders. As per MOU dated 29/11/1993, the consideration was to be paid in cash and kind. Opposite party no.1 agreed to pay Rs.30 lakhs and two flats each one of 900 sq.ft. built up area to the complainant. However, as it necessitated due to claims made over property or share claimed by the relatives of the complainant in the property, supplementary agreements dated 30/07/1997, 26/08/1999 and 17/09/1999 came to be executed. As ultimately came out and settled, complainant is to get built up area of 1410 sq.ft. instead of 1800sq.ft. in addition to the cash consideration. Against this 1410 built up area the complainant was allotted flat nos. 11 & 12 at building Escada. Flat no.11 is stated to be having built up are of 560 sq.ft. while flat no.12 covers built up area of 850 sq.ft. total amounting to 1410 sq.ft.

It is the grievance of the complainant that in fact he had received less area than what was agreed. According to him, he had received less area of 323 sq.ft. in terms of supplementary agreement dated 26/08/1999 and therefore, branding it as a deficiency in service/unfair trade practice on the part of opp.parties, he claimed compensation..

Other grievances made are about not allotting stilt parking area/car parking area as per supplementary agreement dated 30/07/1997. He also raised claim on other counts such as not forming of society, issue of share certificate, assignment of lease in favour of society etc. He further claimed relief to attend deficiency in service due to leakage in his flat nos. 11 &12 or in the alternative reimburse him the cost of leakage repairs. Consumer complaint was accordingly filed on 08/02/2001.

This complaint is opposed as per the written statement supported by affidavits by opp.parties. They deny in toto all the allegations leveled against them. Complainant is not entitled to stilt car parking but only entitled to car parking in open space of the compound and which is accordingly allotted to the complainant and therefore, there is no deficiency in service on their part on this count. About the leakages the problem was already attended and they deny any deficiency in service on their part on that count. Main dispute is about deficit area of the flat. As per opposite party, built up area included common facilities, such as area under the lift, staircase, landing lobby etc. and as such, infact complainant got more area than what was agreed upon. With this they asked to dismiss the complaint.

We heard Adv.Shri U.B.Wavikar @ Adv.Shri M.S.Naik for complainant and Adv.Shri Denzil D’mello for opposite parties.

As far as deficiency in service on account of leakages in bathroom ceiling is concerned, there is no proof thereof adduced on behalf of the complainant. Correspondence on record shows that such grievance is made only after a dispute as to the area of the flat arose between the parties. Opp.parties submitted that they have already attended that complaint. Thus, grievance as to deficiency in service on this count does not survive.

As far as car parking in stilt is concerned, relevant supplementary agreement dated 30/07/1997 is only to be taken into consideration since what has been agreed between the parties in respect of car parking is to be determined on this basis only. Said agreement did mention in its clause 6: “One parking space will be allotted, free of cost, to the Vendor in the compound of the proposed building on plot no. 102, Rebello Road”( underlining provided). As per this agreement parking space in the compound bearing no.07 was allotted to the complainant. His grievance that he is entitled for car parking under the stilt and since such under stilt parking is not allotted, there is deficiency in service on the part of opposite party, does not survive. Before parting with the issue of allotment of car parking it will not be out of place to make mention allotment letter dated 21/06/1999, whereby under stilt car parking space no.5 shown to have been allotted to the complainant. This letter is disputed by opp.parties. Had it been a true allotment, complainant would not have made any grievance about the allotment of car parking in his complaint.

There is one more deficiency in service alleged on account of non payment of Rs.2 lakhs i.e. part of consideration per clause 3(d) of the agreement dated 30/07/1997. Breach of contract in this form may not amount to deficiency in service since element of service is absent therein. Whatever it may be but as per said clause said amount is payable on execution of deed of conveyance and the vendor producing certificate under Section 230 of Income Tax Act, 1961. These conditions are not fulfilled. Therefore, any claim on this count on the ground of deficiency in service is premature and as such, would not survive.

Now coming to the main disputed issue about deficiency in service on account of allotment of less area in form of flat nos.11 & 12 than what was agreed i.e. less than 1410 sq.ft. built up area, It is seen that the issue squarely arises since nowhere it is specifically defined as to what would be the built- up area and its relation with the carpet area. According to opp.parties, built up area would include area of common facilities, supra. The complainant seriously disputed this. As per last agreement dated 26/08/1999, as earlier pointed out, the builder agreed to give built up area of 1410 sq.ft. Admittedly, in lieu thereof, flats no.11 & 12 from Escada building were allotted to the complainant. Subsequently two more agreements dated 17/09/1999 were got executed as per Maharashtra Ownership Flats Act, 1963 mentioning therein the area of flats as carpet area. Complainant was not at all satisfied with it and therefore, perhaps, at the time of execution of those agreements and when possession letter dated 28/08/1999 was handed over to the complainant by the builder/ opposite party, complainant got endorsed the built up area of these flats from the builder/opp.parties in form of certificate dated 30/08/1999. The area mentioned in the certificate confirms the built up area of 560 sq.ft. and 850 sq.ft. respectively for flat no.11 & 12. Again not satisfied or still nourishing the doubt, the complainant got measured his flats sending the relevant map to a firm “Golisia and Associates”. According to them, built up area of flat no.11 & 12 are respectively 478.5 and 772 sq.ft. excluding the balcony. It may be pointed out that while making calculations they did not actually visited the site or took their own measurements but their calculation is based upon the map submitted. As per the map attached to the agreement between the parties, there is an area shown as toilet attached to the bedroom and which is on the other side adjustant to lift area. This toilet is subsequently, as per the approved plan, is shown as servant toilet. Therefore, this area being the part and parcel of the flat given to the complainant is to be included in the calculation of the area. So, is the case of enclosed balcony.

Both the parties besides the calculation made by their respective architect tried to rely upon various notions as to the carpet area of a flat. For example one mentioned in ready reckoner for the purpose of calculation of stamp duty, the one which is mentioned by Bureau of Standard (BIS in short), as relevant for Bombay Municipal Corporation per approved plan. We need not to refer to the standards as maybe prevailed in Pune. The correct approach for the calculation of built up area therefore, would be as commonly understood for purpose of calculation for area followed within limits of Bombay Municipal Corporation. The agreement between the parties also refer to approved plan of the Bombay Municipal Corporation while making reference to “built up area”. Built up area is to be distinguished from “super built up or saleable area’. Unlike “super built up area”, the built up are will not include common areas e.g. lift lobby, landings, staircase etc., supra. Built up area will be carpet area plus area covered under walls. This can be verified as per actual measurement. We need not to go to the notions as nourished by the complainant or for that purpose by anybody else. The complainant himself stated in one of his correspondences that built up area would be carpet area plus 26% of the carpet area. We need not to refer to it to base our decision in light of summarization made above. Once we exclude the proportionate area of the lift, lobby, staircase, landing space and common passages which the complainant admittedly included while propagating built up area of the flats in question, the built up area which is made available to the complainant comes to 1205.13 sq.ft.(including enclosed balcony and servant toilet). This has been rightly shown by the complainant in the statement of area calculation in the various modes in the summary of complaint submitted to us. (Copy already given to the opposite party). We therefore, accept the same. It makes a short fall of 204.87 sq.ft. built up area, say rounding to 205 sq.ft. built up area. Since complainant had received less area than what has been agreed, it need to be compensated in terms of money since, it is not possible to give any additional area in building Escada. Therefore, issue arises as what should be the just and reasonable amount of compensation, which can be granted for deficiency in service on this count.

In clause no.5 of agreement dated 17/09/1999, the parties stipulated after mentioning the carpet area that if there is any change in the area of the flat, the price shall be adjusted accordingly on prorata basis. At the time of execution of supplementary agreement, the value of 290sq.ft. built up area required to be surrendered from the share of the complainant in favour of his relative, was calculated or estimated at Rs.14,50,000/-. This particular valuation is relevant since it relates to the same period when possession of the flat was handed over to the complainant. Therefore, cause of action to claim compensation on account of deficiency in service for less area is to relate to this period. Hence, making the calculation on pro-rata basis for deficit built up area of 205 sq.ft., it comes to Rs.10,25,000/-. We, therefore, find this amount would be just and reasonable amount of compensation to be awarded to the complainant on this count. Of course, said amount will carry interest @ 9% p.a. from the date of possession i.e. 28/08/1999 till its realisation. We hold accordingly.

Sine we direct to pay interest over the amount of compensation awarded for proved deficiency in service, we find that no further amount of compensation on other counts particularly by way of mental agony, need to be awarded separately. In fact, dispute in this case arose because of ambiguity by not clearly defining the phrase “built up area” vis-ŕ-vis fulfillment of the term of the contract regarding the payment of consideration in kind. We award cost of the proceeding separately as per the final order.

For the reasons stated above, we hold accordingly and pass following order:-





:-ORDER-:

1. Complaint is partly allowed.

2. Opp.parties jointly and severally shall pay Rs.10,25,000/- along with interest @9% p.a. with effect from 28/08/1999 till its realisation to the complainant.

3. Opposite parties to bear their own cost and pay Rs.10,000/- as cost to the complaintant

4. Copies of the order herein be furnished to the parties.





(S.R.Khanzode) (B.B.Vagyani)

Judicial Member President