B.M.KAPOOR vs AJAY ENTERPRISES

THE applicants have filed an application under Section 12B of the MRTP Act, 1969 (the Act for brief), charging the respondent with adoption of and indulgence in unfair trade practices and stating therein, that although they booked super area measuring 152 sq. ft. @ Rs. 700/- per sq. ft. in the Anupam Commercial Complex, Paschim Vihar, developed by the respondent, the actual carpet area given to them is approximately 90 sq. ft. only which is about 60% of the super area whereas it should be between 75 to 80% as per the norms in similar other buildings. THEir other grievance is that there is a column in the carpet area or the actual space allotted to them even though it was not a part of the building plan, and moreover, a wooden door in place of a shutter has been provided and therefore, they have prayed that the cost of the additional area charged by the respondent as also the difference between the cost of the shutter and the wooden door may be refunded to them, with interest accruing on it.

AN application under Section 12A of the Act was also made by them wherein they had stated that as they had paid an amount of Rs. 1,02,622/- upto 11.6.1999 and also further an amount of Rs. 17,542/-, the respondent should be directed to give possession of the office space bearing No. 9, First Floor booked by them, in the respondent''s ANupam Commercial Complex. A notice in respect of the applicants-compensation application was issued to the respondent, who in reply thereto, while denying the charge of unfair trade practices, has stated that the applicants had booked super area of 152 sq. ft. and not the carpet area and in Clause 2 of the agreement between the parties, the super area has been defined and includes the areas of balconies, periphery walls upto the cupboard line and half the area under common walls between the two flats, as also the areas under common utilities, common lobbies, toilets, staircases, passage, lifts, corridors and the area under projections. It has also been mentioned in the reply that it was further clarified to the applicants in a letter dated 1.1.1992 as to what all is included in the covered area/super area booked by them. It has been further stated that the area on the first floor is meant for use as offices, and offices have been provided with wooden doors whereas shutters have been provided on the ground floor which is meant for use as shops.

On completion of pleadings, the following issues were framed : (1) Whether the compensation application is not maintainable for the reasons stated in the respondent''s reply ? (2) Whether the respondents are or have been indulging in restrictive/unfair trade practices, as claimed in the compensation application ? (3) If the answer to the foregoing issue is in the affirmative, whether the restrictive/unfair trade practices are prejudicial to public interest or the interest of the consumer or the consumers generally ? (4) Whether the applicant has suffered any loss as a result of the unfair/restrictive trade practices ? (5) To what relief, if any, is applicant entitled ?

DURING the pendency of the present proceeding, the applicants'' application for interim relief was considered and in view of the fact that the applicant was a retired government servant and had invested his life''s savings in the office space in the respondent''s commercial complex and had paid the amount demanded by the respondent, from time to time, towards its cost, the respondent was directed to deliver the possession of the space in question, within 15 days and also file an affidavit by way of compliance. The applicants were also directed to deposit a sum of Rs. 5,000/- in his bank account in favour of the Commission to be withdrawn subject to the outcome of the present case. One of the applicants, Mr. B.M. Kapoor filed his affidavit of evidence and was cross-examined whereas Sh. B.K. Jain, Director Building, DDA and Mr. M.L. Tikku, General Manager, (Project) of the respondent appeared as witnesses, on behalf of the respondent.

WE have heard the learned Advocate for the applicants as well as that of the respondent and have perused the Court record. It is not disputed or denied that the applicants applied for a commercial space measuring 152 sq. ft. @ Rs. 700/- per sq. ft. and paid an amount of Rs. 52,500/- in five instalments of Rs. 10,500/- each vide cheques dated 9.6.1986, 9.7.1986, 9.8.1986, 9.9.1986 and 21.10.1986 respectively. It is also not disputed that the applicants signed an agreement and according to the agreement the super area/covered area was inclusive of the areas of balconies, periphery walls upto the cupboard line and half the area under common walls between the two flats, as also the areas under common utilities, common lobbies, toilets, staircases, passage, lifts, corridors and the area under projections. It is also not in dispute that they were allotted space No. 9 on first floor of the multi-storeyed building, Anupam Commercial Complex, Paschim Vihar. Perusal of the relevant Clause 2 of the agreement reveals that the definition of the super area does not include the area covered by a column. The agreement also does not mention as to what exactly will be the carpet area in terms of percentage of the super area. The contention of the respondent that the pillar or column is part of the structure which has been built according to the approved building plan is true but it cannot be gainsaid that it is not included in the covered area which has been defined in Clause 2 of the agreement. The definition of the covered area is quite exhaustive but does not include a column or the area under a column. It is an admitted position that according to the agreement the applicants were offered space No. 9 on the first floor with an approximate covered area of 152 sq. ft. @ Rs. 700/- per sq. ft. It has also been observed in the order of this Commission, passed on 6.11.1996, by virtue of which possession of the space in question, was ordered to be delivered to the applicants by way of interim relief, that the applicant Shri B.M. Kapoor is a retired government servant and had booked the space in question, in order to earn his livelihood. Therefore, burdening him with cost for the super area under the column or pillar not covered by the definition in Clause 2 of the agreement would be tantamount to both, restrictive and unfair trade practices. It would be an unfair trade practice on the part of the respondent as it would amount to a misrepresentation or a false representation with regard to the area actually made available to the applicants for their office space. Likewise, it would impose unjustified cost on the applicant for the area not specifically mentioned in Clause 2 of the agreement. It is pertinent to mention here that in the relevant clause of the agreement as well as the building plan placed on record, the pillar is not included in the definition of the super area or covered area and is also not shown in the space proposed to be offered to the applicants and, therefore, the respondent can be said to have adopted and indulged in both restrictive and unfair trade practices. Accordingly, the issue Nos. 2 and 3 are decided in the affirmative. It, therefore, follows that the applicants have suffered loss on account of the aforesaid restrictive and unfair trade practices adopted by the respondent and they are entitled to refund of the amount charged by the respondent for the area under the pillar i.e. Rs. 2,100/- (Rs. 700 x 3) with interest @ 12% per annum for the period the amount remained with the respondent. The area under the pillar is stated to be 3 sq. ft. Our above findings are based on the interpretation of the relevant clause of agreement entered into by the applicants and the evidence placed on record by the applicants and as there is no mention either of the percentage or the approximate carpet area that the applicants would actually get, we do not consider it necessary to go into the norm or ratio of carpet area to super area. Moreover, no evidence of norms or ratios followed by other developers of similar complexes has been adduced before us. The applicants signed the agreement supposedly after reading and understanding the various clauses contained in it particularly, the clause relating to the super area. It also cannot be gainsaid that they applied for and booked super area in the respondent''s commercial complex and, therefore, they cannot make a grievance of a smaller carpet area which works out to about 60% of the super area.

AS the possession of the space in question, is already with them, no other relief is considered necessary except cost of litigation incurred by the applicants. The cost is quantified as Rs. 5,000/-. We, therefore, direct the respondent to refund the amount of Rs. 2,100/- with interest @ 12% per annum for the entire period and also costs of Rs. 5,000/- and file an affidavit of compliance within six weeks from the date of pronouncement of this order. C.A. disposed of.