JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          These Revision Petitions are directed against two separate orders passed by the State Commission on 27.01.2015 in two separate appeals, both instituted by the respondent company. 

2.      The petitioners herein, booked a residential apartment with the petitioner company in a project namely ‘Orchard County’ which the OP was to develop on Kharar Landran Road in Mohali.  Apartment No. 11SF was allotted to the complainants for a consideration of Rs.27,75,000/- and parking charges.  The parties then executed an agreement on 24.06.2009, incorporating their respective obligations in respect of the said allotment.  As per clause 10 of the agreement, the possession was likely to be delivered to the complainants within 24 months of its execution.  The possession therefore, ought to have been offered by 24.06.2011.  The petitioners made payment of Rs.25,55,000/- to the respondents but thereafter, the respondents raised an additional demand claiming increase in the area of the apartment as well as on account of delay in making payments.  Being aggrieved, the complainants approached the concerned District Forum by way of two separate Consumer Complaints.  In one complaint, they sought possession of the allotted unit with compensation whereas the other complaint was instituted by them disputing the demand on account of the alleged increase in the area of the apartment and payment of interest on the delayed payment. 

3.      The complaints were contested by the respondents who claimed that there had been increase in the area of the apartment which justified the additional demand raised by them.  The demand towards interest on delayed payment was also sought to be justified. 

4.      Vide order dated 11.09.2014, the District Forum directed as under:

(a)     To waive off the interest on delayed payment, if any, pending, till the possession of complete flat as per the brochure is offered;

(b)     Not to demand the excess amount of Rs.2,83,920/- + Rs.8783/- towards increased area.  The demand will be as per calculation based on the report of the expert only.  If the payment in accordance with this demand is not made by the complainant within a period of one month of demand, the opposite parties will be entitled to recover interest on the delayed payment at the agreed rate as per the agreement.

(c)     To pay compensation of Rs.1.00 lac to the complainants on account of mental agony, harassment caused to them and deficiency in service on the part of the opposite parties.

(d)     To pay Rs.10,000/- towards costs of litigation.  

5.      Being aggrieved from the orders passed by the District Forum, the respondent approached the concerned State Commission by way of two separate Appeals. 

6.      Vide impugned order dated 27.01.2015, the State Commission partly allowed the Appeals and directed as under:

25.    For the reasons recorded above, the appeal bearing FA No.386/2014 filed by the appellants/opposite parties, is partly accepted with no order as to costs, and the impugned order passed by the District Forum, is modified, to the extent, indicated hereunder;

(i) The appellants/opposite parties are directed to pay an amount of Rs.50,000/- (Rupees Fifty Thousand Only) to the respondents/complainants, compensation for mental agony and physical harassment suffered by them, instead of Rs.1,00,000/- awarded by the District Forum.

(ii) The appellants/opposite parties are also directed to pay an amount of Rs.10,000/- to the respondents/complainants towards cost of litigation, as awarded by the District Forum.

(iii) The appellants/opposite parties shall pay the amount of compensation, as mentioned in Clause (i) above, to the respondents/complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @ 9% per annum, from the date of default, till realization, besides payment of costs of litigation aforesaid.

(iv) All other directions given, and reliefs granted by the District Forum, in the impugned order, subject to the modifications, aforesaid, which are contrary to and, in variance of this order, shall stand set aside. 

7.      Being aggrieved from the order passed by the State Commission, the petitioners/complainants are before this Commission.

8.      The learned counsel for the petitioners submits that an Architect was appointed by the District Forum to measure the apartment in other Consumer Complaint pertaining to an allotment made in this very project, the said complaint being subject matter of R.P. No.4267 of 2014 decided by this Commission.  This is also his submission that the area of all the apartments in this project is identical and therefore, the increase in the area was only to the extent it was found by the Court Commissioner appointed by the District Forum in the Consumer Complaint which was subject matter of R.P. No.4267 of 2014.

9.      In my opinion, without actual measurement of the apartment allotted to the complainants, at the site, the increase in the super area of the apartment cannot be verified on the ground.  Therefore, it would only be fair and reasonable to appoint a Court Commissioner to inspect the allotted apartment and give report as to whether there has been an increase in the area of the apartment and if so, to what extent.  Hence, the impugned orders are set aside.  The District Forum is directed to appoint a suitable Architect as the Court Commissioner to inspect the apartment allotted to the complainants and then decide the complaint in light of the report of the Court Commissioner and other material available on record.  The inspection by the Local Commissioner shall be carried out in the presence of the parties on the date and time to be notified to them in advance.  The Local Commissioner shall record his proceedings on the spot at the time of inspection and get the same signed from the parties who are present at the time of inspection.  The report of the Local Commissioner alongwith the original proceedings   so signed, shall be submitted to the District Forum. 

10.    The possession of the allotted flat is yet to be taken by the complainants.  The respondents are directed to deliver possession of the allotted flat, complete in all respects to the complainants within six weeks from today without prejudice to the respective rights and contentions of the parties in the Consumer Complaint. 

11.    The District Forum shall decide the complaint afresh in the light of the report of the Court Commissioner and other material available on record within three months of the parties appearing before it.  The parties shall appear before the concerned District Forum on 12.12.2019.