BALDEV RAJ WADHWA vs JAINA PROPERTIES (PVT.) LTD.

ON the face of it, the O.P., who is a builder/developer had played fraud upon the complainant. The complainant had booked a space on the ground floor bearing number G-7 (shop) measuring 49 sq. ft. in Plot No. 30, Swastika Complex, Basai Dara Pur Commercial Complex, Kirti Nagar, New Delhi to be constructed by the O.P. whereas in actuality he was handed over the shop measuring 18.6 sq. feet, remaining area having been shown as ''Super area''. Feeling aggrieved complainant has, through this petition sought compensation of Rs. 1,37,700/- on account of excess amount paid by him, interest @ 36% p.a. and damages for cheating amounting to Rs, 50,000/-.

THE relevant terms of agreement were as follows : Clause : 1 "That the Licensee will pay the total agreed deposit of Rs. 62,132/- (Rupees sixty two thousand one hundred and thirty two only) for an area of 49 sq. ft. on Ground Floor. THE mode of payment in Annexure ''A'' to this Licence Deed." Clause (c) "THE area and total agreed deposit mentioned above is for super area which includes the covered area i.e., area covered by walls, columns plus the area of Louvers, Storage space (Boxes), Balconies, Verandahs, the recessed spae below window silt plus the proportionate share of area under staircase, water tank, corridor, lift, lift room, AC plant, electric meter room, common toilet whatsoever provided in the building."

After having been allotted the shop No. G-7, the complainant was shocked to find, at the time of taking over the actual physical possession, that the shop in question admeasured only 18.6 sq. ft. and in spite of repeated requests and reminders and the promises made by the O.P. the grievance of the complainant could not be redressed.

However, the possession of the premises in question was taken over by the complainant under protest. The O.P. has shown a plan showing details of the area. The shop No. G-7 has been shown as having an area of 49 sq. ft. The details have been given as follows : Super Area as per agreement 49 sq. ft. Prop. Area of common service i.e., stair common, toilet Corridor water tank,, verandah 30.35 sq. ft. Measurement incl. Wall 3''8" x 5''.7" 18.60 sq. ft.

IT is beyond imagination and comprehension that super area of any commercial complex or residential complex would be more than the double of the main area i.e., covered area. Such a practice or representation, if any, is highly uncalled for, unscrupulous and worst kind of trade practice. To have charged a person the full price of the shop for 49 sq. ft. area while giving the shop of 18.6 sq. ft. area only and naming the rest of the area as super area is in itself the grossest kind of unfair trade practice. IT is again mind boggling that a builder or developer of such complexes would charge at the same rate for the super area also as for covered or carpet area. O.P. is taking refuge of Sub-clause (C) of Clause 1 to justify his act in allotting shop of 18.6 sq. ft. as against that of 49 sq. ft. area, which states that the agreed deposit was for super area which includes the covered walls, columns plus the area of the Louvers, storage space (boxes), Balconies, the recessed space below window, plus the proportionate share of area under staircase, water tank, corridor, lift, lift room, AC plant room, electric room, common toilet whatsoever provided in the building. Interestingly the O.P. has failed to produce the plan as referred to in terms of agreements and has rather referred to a letter dated Ex. D-1 sent by the complainant to the O.P., that he was satisfied with regard to the measurement of the super area of 49 sq. ft. besides giving an undertaking to continue to abide by the promises and conditions of letter of registration. Until and unless, the O.P. had told the complainant as to what would be the super area and what would be actual covered area, he cannot be allowed to change the area subsequently on its own whims as has been done in the instant case. There is no reference in the terms of the agreement as to what would be actual covered area and what would be the super area. No purchaser would pay Rs. 62,132/- for the covered area of 18.6 sq. ft. had it been represented in clear terms that in actuality the carpet area would be 18.60 sq. ft. against the space measuring 49 sq. ft.

TAKING over all view of the matter and keeping in veiw that the complainant has been in occupation and possession of the shop in question, we deem it necessary to compensate the complainant on account of unfair trade practice and deficiency in service on the part of O.P. by way of not only misrepresenting but almost playing fraud inasmuch as, that it was not disclosed in clear terms as to the extent of actual covered area and super area as it was unthinkable that cost of Rs. 62,132/- was charged for a shop of 49 sq. ft. area shop measuring 18.6 sq. ft. only i.e., almost 1/3rd of the represented area. This amounts to unfair and unscrupulous trade practice, as the complainant has already made the payment of full consideration amount. In our view the compensation of Rs. 25,000/- @ 12% interest from the date of filing of the complaint till realisation and Rs. 2,000/- on account of cost of litigation would meet the ends of justice. A copy of this order, as per the statutory requirements, be forwarded to the parties, free of charge and thereafter the file be consigned to the Record Room. Complaint allowed.