STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Ashok Kumar Sharma S/o Late Sh.Des Raj Sharma, resident of House No.5482/2, Modern Housing Complex, Manimajra, Chandigarh, presently on deputation to Bhutan Government. 

……Appellant/Complainant

V e r s u s

1. The Chairman and Managing Director, OMAXE Ltd. 10-LSC, Kalkaji, New Delhi.

2.  The General Manager, OMAXE Ltd. SCO No.139-140, Ist Floor, Sector-8-C, Madhya Marg, Chandigarh. 

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:           Ms.Anamika Mehra , Advocate for the appellant.

                         Mr.Munish Gupta,   Advocate for the respondents.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            This order will dispose of an appeal filed by the complainant/appellant against an order dated 09.02.2016, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), dismissing his complaint. 

2.       Before the District Forum, it was case of the appellant that he had purchased a residential independent floor in the project known as “Silver Birch” launched by the Opposite Parties.  Initially he was allotted Unit No.721  measuring 1150 Sq.ft on 4.2.2011. The said unit was not available having been allotted to someone else.  In view of the above, the appellant was offered unit No.679-E measuring 1500 Sq.ft. The said unit was not to his liking and he was allotted Unit No.246F/SF measuring 1500 Sq.ft.  He agreed to make payment for the said unit. As per the calculation made by the appellant, he had paid virtually the entire amount towards price of the Unit. However, vide letter dated 6.1.2014(C-9), the Opposite Parties illegally raised an additional demand for Rs.4,20,069.65p. It was stated that as a matter of fact there was no increase in the area of the Unit, as claimed by the Opposite Parties. Claiming delivery of possession, setting aside of letter dated 6.1.2014, demanding payment of compensation etc., a consumer complaint was filed. During pendency of that complaint, sensing that the District  Forum was lacking pecuniary jurisdiction, prayer qua delivery of possession was withdrawn and other prayers including  setting aside of the  above letter were kept intact.
3.       As apparent from the contents of appeal, the basic issue remains qua increase in area of the Unit allotted to the appellant. The District Forum after noting Clauses 3 & 4 of the Allotment Letter dated 15.10.2012(C-6) rightly came to the conclusion that the area of the Unit initially allotted was tentative and at the time of handing over of possession it was likely to increase or decrease. In case of decrease in area, the purchaser was entitled to get the refund of the amount paid and obviously, in case of increase, he was supposed to make payment.
4.        Taking note of ratio of judgment in Kanpur Development Authority Vs Yogendra Nath Bhatt- Revision Petition No.2007 of 2012, decided by the Hon’ble National Consumer Disputes Redressal Commission on 30.4.2013 and Emaar MGF Land Limited Vs Col. S.K.Malhotra and another- First Appeal No.219 of 2014 decided on 23.7.2014 by this Commission, it was rightly said that for increase in the area, the appellant was duty bound to make payment.  In appeal filed, in paragraph No.2, except reiterating contents of complaint, nothing more has been said to challenge the order. In paragraph No.3 of appeal, it was only said that when flat was allotted, a fact that area of the Unit may  increase   was not disclosed to the appellant and further the Forum had wrongly observed that the appellant was bound to make payment of Rs.4,20,069.65 towards increase in  area. No other reason to challenge the order has been mentioned.  At the time of arguments, it was also stated that by making demand of extra amount for increase in area, the Opposite Parties have adopted unfair trade practice. This averment cannot be entertained in view of the ratio of the judgments, referred to above.
5.        Not only as above, it is fully proved on record that the area of Unit was increased from 1500 Sq.ft to 1702 Sq.ft. The above said issue was seriously contested by the appellant before the Forum. To ascertain the actual area of the unit at the spot, on his request and out of a panel  of Civil Engineers supplied by the appellant, a Local Commission was appointed to effect measurement qua the Unit in dispute who gave the following finding ;

          “During measurements it has come to notice                that the above said Unit No.246/F/SF

      (OMAXE) Chandigarh extn. Independent floors       known  as “Silver Birch” having covered area       1472.71 sq.ft. and area under balconies is               237.55 sq.ft.  Thus, the total Super Area                    comes out to be 1710.26 Sq.ft.”

6.      It was specifically stated in the report that the total Super Area of the Unit is 1710.26 Sq.ft.  Parties are bound by the terms and conditions of the Allotment Letter/Buyer’s Agreement  wherein it is specifically provided that the area allotted was tentative and it may increase or decrease when possession is to be delivered to the purchaser. It is further provided in Clause-4 that in case of increase of 10% in the area, the OP will charge  the price, on the same rate at which booking was made and for rest of the increased area, prevailing market rate will be charged. We are satisfied that the amount claimed from the purchaser is justified and as per the terms and conditions mentioned in Clauses 3 & 4 of the Allotment letter dated 15.10.2012.  
7.      In view of the ratio of judgments, referred to above, and also in the face of findings of this Commission in the case titled as Ajay Singh Versus Omaxe Chandigarh Extension Developers Pvt Ltd. 2015 (3) CPJ 15, the  demand of OP  on account of increase  in the super area of the Unit was, therefore, completely legal.
8.       No other point, was urged, by Counsel for the parties.
9.       For the reasons recorded above, the appeal is dismissed, with no order as to costs. The order of the District Forum is upheld. 
10.       Certified copies of this order, be sent to the parties, free of charge.
11.       The file be consigned to Record Room, after completion

Pronounced.

01.06.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

(DEV RAJ)

MEMBER

                                                (PADMA PANDEY)                                                                                                         MEMBER                                                                                                                                                    

JS