1.       Vide this order, we propose to dispose of both the Revision Petitions.  The Petitioners ( hereinafter referred to as ‘complainants’) filed complaint No. 575 of 2013 against the respondent ( hereinafter referred to as the ‘opposite party’). Vide order dated 29.04.2014, the District Forum partly allowed the complaint and issued certain directions to the opposite party.   Both the parties being aggrieved of the order of the District Forum filed separate appeals.

2.       Appeal No. 203 of 2014 was filed by the complainants which was dismissed in limine by the State Commission vide its order dated 03.06.2014.  In Revision Petition No. 3326 of 2014, the complainants have challenged this order.

3.       The opposite party filed Appeal No. 219 of 2014 challenging the order of the District Forum.  This appeal of the opposite party was partly allowed by the State Commission vide its order dated 23.07.2014.  Aggrieved by this order of the State Commission, the complainants have filed Revision Petition No. 3327 of 2014.  Both these revision petitions filed by the complainants have been taken together since they relate to one complaint and shall be disposed of by this common order.

4.       The brief admitted facts of the case are that the complainants had booked a residential unit no. J3-F-504, Tower No.J having super built area 1750 sq. ft in Mohali for a price of Rs.51,62,500/- and Apartment Buyer Agreement dated 11.04.2008 was executed between them in Chandigarh.  The date of allotment of said flat was 08.01.2008 but offer of possession was made vide letter dated 16.08.2013.   Vide this letter, complainants were informed about increase in super built up area which was 2051 sq. ft. i.e. increase of super built up area by 301 sq. ft. and demand for additional payment towards increase in area was made.  On receiving the said letter, the complainants wrote back to the opposite party letter dated 25.07.2013 wherein it sought waiver of the amount of Rs.12,68,997/-, which has been charged by the opposite party towards increase in the super built up area.  When the same was not done by the opposite party, complainants filed Complaint No. 575 of 2013.  Notice was issued to the opposite party. The opposite party filed its written statement.  It took several pleas including that under clause 12.3 of the Builder Buyer Agreement, it was the sole discretion of the opposite party to carry out any alteration in the building / apartment / floor plan and that the allottee had acknowledged that he would have no objection to such changes.  It was contended that complainants were duly informed of the changes vide letter dated 23.07.2013 and the changes were in accordance with the master plan.  It was also contended that as per clause 1.2 of the Apartment Buyer Agreement,  the allotted super area was tentative and  was subject to change till the completion of construction and issuance of the occupation certificate.   The occupation certificate was issued to the opposite party on 10.06.2013.  It was further contended that under clause 18.1, allottee had to file objection within 30 days of intimation of increase / decrease of super area but the complainants paid the amount without protest on 12.09.2013.  It was prayed  that the complaint was liable to be dismissed.  In the rejoinder, complainants had taken a plea that payment against the increase in area was made under protest.

5.       Parties led their evidences before the District Forum.  The District Forum after duly considering the rival contentions of the parties has held as under:

“13.    We have given our thoughtful consideration to the above arguments. A perusal of the buyer’s agreement Annexure C 2 shows that the unit would be having a super area of approximately 1750 sq ft. Clause 1.2 of the agreement reads as under:

“1.2    The Allottee agrees and understands that the sale price of the apartment shall be calculated on the basis of the super area (as defined and detailed out in Annexure III) and that the super area as stated in this agreement is tentative and subject to change till the completion of the construction and the issuance of the occupation certificate by the competent authorities. The final super area of the apartment shall be confirmed by the company only after the construction is complete and the issuance of the completion certificate by the authorities.”

Clauses 18.1 and 18.2 relating to alteration and modification read as under:

“18.1            In the event of any alteration/ modification resulting in more than 10% (ten percent) increase or decrease in super area of the apartment, the company shall in its sole opinion, any time prior to or upon the grant of occupation certificate, intimate the allottee in writing of such increase or decrease in super area thereof and the resultant change, if any, in the sale price of the apartment. In the event that the allottee has any objection to such increase or decrease in super area, the allotee shall within thirty (30) days of intimation of the increase or decrease by the company file objections, failing which it shall be deemed that the allotee has no objections and had given absolute consent to such increase or decrease in super area and/ or any alterations/ modifications and for payments, if any, to be paid in consequence thereof. However, in case the allottee demands refund of the monies deposited by the allottee towards the apartment booking, then the company shall cancel this agreement without any further notice and refund the money received from the allottee within thirty (30) days of the sale of the apartment to any third party. The company shall refund the money to the allotee after deduction of the earnest money, whereupon, the company and / or the allotee shall be released and discharged from all their obligations and liabilities under this agreement. It being specifically agreed that irrespective of any outstanding amount payable by the company to the allottee, the allottee shall have no right, lien or charge on the apartment in respect of which refund as contemplated by this clause is payable.

18.2   In case of any alteration/ modification resulting in less than 10% (ten percent) increase in super area, then in such an event, the company shall not be obliged to take any consent from the Allottee. The  Allottee agrees and acknowledges that the Allottee shall be obliged to make payments for such increase in area within thirty (30) days of the date of the intimation of by the Company. In case of any alteration/ modification resulting in less than 10% ( ten percent) decrease in super area, then the excess amount towards the sale consideration shall be adjusted by the company at the time of final accounting before giving possession to Allottee. The Allottee agrees and acknowledges that the company shall not be obliged to pay any interest in this regard”.

14.     It is true that as per agreement, the super area of 1750 sq ft relating to the unit of the complainants was tentative and alternation/ modification could be carried out in the same. In the instant case, it was only at the time of offering the possession on 16.08.2013 (Annexure C–9), the complainants were intimated that there has been a change in the super area, which stood revised to 2051 sq ft from the earlier area of 1750 sq ft. Accordingly, the price of the unit was increased by Rs.12,69,170/-. It is not the case of the complainants that the super area of the flat has not been increased, therefore, we do not find any just ground for refund of the whole amount of Rs.12,69,170/-. However, the fact remains that the alternations/ modifications resulting in more than 10%  increase in the super area of apartment took place and the consent of the allottee was not obtained for the purpose. As per clause 18.2 of the agreement, had the alteration/ modification been less than 10% the company was not obliged to take any consent from the allottee. In this case the alteration/ modification was more than 10%, therefore, the company was obliged to take consent of the complainants. However, the OP arbitrarily increased the area of the apartment and demanded payment as per revised area vide letter dated 16.08.2013 Annexure C-9. It is important to note that the complainants immediately thereafter on 25.08.2013 vide letter annexure C–10 raised their protest that the increase in the super area of the flat by 301 sq ft and increase in the cost by 25% were a major change and they were unable to meet the extra demand of Rs.12,69,170/- being retired defence officer and due to financial constraints. They also intimated that they had no option  but to retain the allotted flat as they had no other place to go. Further more, at the time of making the payment of Rs.12,61,499/- and Rs.7671/- vide letter annexure C –12 the complainant (Col S K Malhotra) specifically made the payment under protest and reserved the right to challenge the amount calculated by the OP in any appropriate forum/ court of law. Consequently, we feel that the above act of the OP in  increasing the super area and the price of the apartment without obtaining the consent of the complainants amount to unfair trade practice for which, the complainants are certainly entitled to compensation instead of refund of the amount of Rs.12,68,997/-.

15.     For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OP is directed:-

(i)      To make payment of compensation for the delay in handing over the possession of the flat @Rs.5/- per sq ft per month of the super area to the complainants from the date of allotment i.e., 13.02.2008 till the date of notice of offering possession, i.e., 16.08.2013;

(ii)      To make payment of compensation to the tune of Rs.2 lakhs to the complainants for unfair trade practice in increasing the super area of the flat and arbitrarily increasing the price of the flat;

(iii)     To make payment of an amount of Rs.11,000/- to the complainants towards litigation cost.

16.     This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, the amounts mentioned at S No. (i) and (ii) of the para aforesaid shall carry interest @ 12% per annum from the date of filing of the present complaint, till its realisation, besides costs of litigation, as mentioned above.”

6.       This order was impugned by both the parties by way of Appeal No. 203 of 2014 (filed by the complainants) and Appeal No. 219 of 2014 filed by the Opposite Party.

7.       The State Commission rejected the Appeal of the complainants in limine. The State Commission partly accepted the Appeal of the Opposite Party.

8.       Both these orders have been impugned before us in these two separate revision petitions by the complainants.

9.       As aspired from the evidences on record and the findings of the Fora belows  that there was an increase in the super area and an extra amount of Rs.12,68,997/-  has been demanded from the complainants vide letter dated 16.08.2013.  The State Commission while dealing with the appeal of the complainants ( in FA No. 203 of 2014)  has made the following observations:

“10.   After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants/complainants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. As regards increase in the super area of the flat, Clauses 1.2, 18.1 and 18.2 of the Apartment Buyer’s Agreement, dated 11.4.2008, Annexure C-1, being relevant, are extracted hereunder:-

“1.2   The Allottee agrees and understands that the Sale Price of the Apartment shall be calculated on the basis of the Super Area (as defined and detailed out in Annexure III) and that the Super Area as stated in this Agreement is tentative and subject to change till the completion of the construction and the issuance of the occupation certificate by the competent authorities. The final super area of the Apartment shall be confirmed by the Company only after the construction is complete and the issuance of the completion certificate by the authorities.”

18.1    In the event of any alteration/modification resulting in more than 10% (ten percent) increase or decrease in Super Area of the Apartment, the Company shall in its sole opinion, any time prior to or upon the grant of occupation certificate, intimate the Allottee in writing of such increase or decrease in Super Area thereof and the resultant change, if any, in the Sale Price of the Apartment. In the event that the Allottee has any objection to such increase or decrease in Super Area, the Allottee shall within thirty (30) days of intimation of the increase or decrease by the Company file objections, failing which it shall be deemed that the Allottee has no objections and has given absolute consent to such increase or decrease in super area and/or any alterations/modifications and for payments, if any, to be paid in consequence thereof. However, in case the Allottee demands refund of the monies deposited by the Allottee towards the Apartment booking, then the Company, shall cancel this Agreement without any further notice and refund the money received from the Allottee within thirty (30) days of the sale of the Apartment to any third party. The Company shall refund the money to the Allottee after deduction of the Earnest Money, whereupon, the Company and/or the Allottee shall be released and discharged from all their obligations and liabilities under this Agreement. It being specifically agreed that irrespective of any outstanding amount payable by the Company to the Allottee, the Allottee shall have no right, lien or charge on the Apartment in respect of which refund as contemplated by this clause is payable.

18.2    In case of any alteration/modification resulting in less than 10% (ten percent) increase in super area, then in such an event, the Company shall not be obliged to take any consent from the Allottee. The Allottee agrees and acknowledges that the Allottee shall be obliged to make payments for such increase in area within thirty (30) days of the date of the intimation of by the Company. In case of any alteration/modification resulting in less than 10% (ten percent) decrease in Super Area, then the excess amount towards the Sale consideration shall be adjusted by the Company at the time of final accounting before giving possession to Allottee. The Allottee agrees and acknowledges that the Company shall not be obliged to pay any interest in this regard.”

11.       A perusal of the provisions of aforesaid clauses of Apartment Buyer’s Agreement, Annexure C-1, makes it clear that the super area was tentative and was subject to change till the completion of construction. Since, in the instant case, increase in the area was more than 10%, the respondent/Opposite Party was required to inform the allottees (complainants) and seek their consent. The respondent/Opposite Party, pleaded that the complainants never demanded refund, which amounted to consent to such increase. As per the terms of the Apartment Buyer’s Agreement, the area of the flat, in question, could be increased. The District Forum rightly held that it was not the case of the appellants/complainants, that the super area of the flat was not increased. Therefore, the District Forum did not find any justification for refunding the whole amount of Rs.12,67,997/-. The District Forum took note of the fact that alteration/modification and increase in the area was more than 10% and consent of the complainants was not obtained, in accordance with the terms and conditions of the Apartment Buyer’s Agreement. Since increase in the area for which, an amount of Rs.12,67,997/- was paid by the appellants/complainants, is not in dispute, the appellants/complainants are not entitled to refund of the same. Since the consent of the appellants/complainants, was not obtained, by sending a specific formal communication, it amounted to deficiency, in rendering service by the respondent/Opposite Party, for which, the District Forum rightly awarded compensation of Rs.2 Lacs to them (appellants/complainants), which, in our considered opinion, is just and correct.

12.        As regards contention of the appellants/complainants for payment of compensation in handing over possession of the flat @Rs.5/- per Sq. feet, the District Forum has already granted compensation for the period of delay. The claim of the appellants/complainants in the appeal for grant of compensation beyond 16.8.2013, when the possession was offered to them, is nothing but an afterthought.  The complainants, in Para 4 of the complaint, had only stated that the Opposite Party was liable to pay compensation till the date of notice offering possession. As stated above, compensation for that period was granted by the District Forum. The submission of the Counsel  for the appellants/complainants for grant of compensation beyond 16.8.2013, being devoid of merit, stands rejected.

13.         No other point, was urged, by the Counsel for the appellants/complainants”.

10.     It is settled proposition of law that this Commission has limited jurisdiction. It can interfere with the findings of the Fora below only when there is perversity in the impugned order or when the order is without any jurisdiction or where there is wrong exercise of jurisdiction. 

11.     The Hon’ble Supreme Court in the case of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 has held as under:

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

12.     Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under:

  “17.  The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”   

13.     In T.Ramalingeswara Rao  (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has held as under:

“12.    When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

14.     Keeping the above proposition of law in mind, we are dealing with these revision petitions.  From the facts on record, it is apparent that there is violation of clause 18.1 of Agreement on the part of the opposite party since no prior intimation had been sent to the complainants before increasing the super area.  A direct demand of additional amount for increase in area alongwith offer of possession, has been made to the complainants.  It is apparent that increase in area is more than 10% and therefore, under this clause, it was mandatory on the part of the opposite party to call for the objection of the complainants regarding increase in area.  It is apparent that for this conduct of the opposite party while dealing with the appeal of the opposite party, State Commission issued the following directions in order dated 23.07.2014 in Appeal No.219 of 2014:

21.     For the reasons recorded above, the appeal filed by the appellant/ opposite party, is partly accepted with no order as to costs. The impugned order, passed by the District Forum is modified, to the extent, indicated hereunder:

1. The appellant/ opposite party is directed to pay an amount of Rs.2,00,000/- to the respondents/ complainants as compensation for deficiency in service, indulgence into unfair trade practice, mental agony and physical harassment, awarded by the District Forum;
2. The appellant/ opposite party is also directed to pay an amount of Rs.11,000/- to the respondents/ complainants towards litigation cost, awarded by the District Forum;
3. The appellant/ opposite party shall pay the amount mentioned in Clause (i) above, to the respondents/ complainants, within a period of two months, 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 filing the complaint, i.e., 07.10.2013, till realisation, besides payment of costs of litigation aforesaid.
4. All other directions given,  and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid which are contrary to and, in variance of this order, shall stand set aside.”

15.     Therefore, there is no perversity in the impugned order and this order needs no interference.  Revision Petition No. 3327 of 2014  stands dismissed.

16.     In Revision Petition No. 3326 of 2014, learned counsel for the complainants took the plea that  there was no increase in the carpet area and, therefore, the opposite party could  not  have charged any extra money.   He  has relied on the findings of this Commission titled Developers Township Property Owners Welfare Society Vs. Jaiprakash Associates Ltd. passed in Consumer Case No. 1479 of 2015 on 02.05.2016.   The complainants seeks refund of Rs.12,68,997/- paid towards increase in area.  The complainants also claims in this revision petition the delayed compensation on the ground that his claim is covered under the prayer clause “to issue any other order or directions which this Hon’ble Forum may deem fit and proper in the facts and circumstances of this case” and the District Forum was not justified in rejecting his claim on the plea that there was no specific prayer to this effect.

17.     It is argued on behalf of the opposite party that in this case, the complainants have taken the possession of the premises alongwith increased area and has also paid stamp duty on circle rate on the total area.  It is further contended that findings in the case of Developers Township Property Owners Welfare Society ( supra ) are not applicable on the facts and circumstances of this case because in this case there is  no contention that increase was not in the covered area but was only in the common area and facilities and therefore there is no evidence on record that increase was not in the covered area and in the absence of such contention, none of the parties had led any evidence to this effect and at this stage complainant cannot raise the contention which was not part of  his pleadings.   It is submitted that in the case ( supra ) there was a specific plea that increase was only in the common area and facilities and there was no increase in covered area and it was on these contentions that findings were given.  The findings in Developers Township Property Owners Welfare Society (supra) is applicable because there is no contention in the complaint that there was no increase in the covered area of flat.

18.     On the second contention, learned counsel for the opposite party has relied on the findings of the Hon’ble Supreme Court in General Motors (India)  Pvt. Ltd. Vs. Ashok Ramnik Lal Tolat and Anr ( 2015) 1 SCC 429, wherein it is held:

“20. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor was the appellant aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being made before the National Commission and the appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law.”

          Learned counsel for the Opposite Party has also relied on the findings of Hon’ble Supreme Court in Manohar Lal ( D ) by Lrs. Vs. Ugrasen ( D) by Lrs and Ors. AIR 2010 SC 2210 wherein Hon’ble Supreme Court has held as  under:

“33.    In view of the above, law on the issue can be summarised that the Court cannot grant a relief which has not been specifically prayed by the parties.”

          and it is argued that in the absence of any specific relief claimed, the relief cannot be granted.

19.     We have given our thoughtful consideration to the arguments of the learned counsels.  There is no doubt that the complainants in their pleadings had pleaded about delay in handing over the possession and has contended that for the delay, the opposite party is liable to pay compensation @ Rs.5/- per sq. ft..  However, no such prayer has been made by the complainants in the complaint asking for compensation for delayed possession.  Even in the letter dated 25.07.2013, which complainants had written in response to the letter of the opposite party dated 16.08.2013 whereby opposite party had offered possession and demanded money for increase in carpet area, the complainants have not demanded any compensation of delayed offer of possession from the opposite party. No legal notice had been sent  to the opposite party demanding delayed compensation. It is also settled proposition of law that what is not prayed cannot be granted. The discretion to grant any other relief as Court deem fit and proper in the facts and circumstance of the case has to be read in context to the prayer clause and has to be exercised wherein relief sought in the prayer clause is not sufficient to compensate or cannot be granted like where possession of flat is sought but where there is no completion certificate and in such case in the absence of completion certificate, possession cannot be ordered to be given, using its discretion under the prayer clause of “any other relief the Commission deems proper.”  The Commission can order the refund of money instead of granting possession.  This prayer clause cannot be given the interpretation to grant additional relief beyond the one claimed.

20.     We find no infirmity, illegality or perversity in the impugned orders.  Revision Petition No. 3326 of 2014 has no merit and same is also dismissed.

21.     Both the Revision Petitions stand dismissed.