RAGHUBIR SINGH JAIN vs ANSAL HOUSING And CONSTRUCTION LTD.

BRIEFLY, the facts are that the complainant booked a flat measruing 872 sq. ft. @ Rs. 630/per sq. ft. in ''Neel Padam Kunj'', a multistoreyed building to be constructed by the Opposite Party, in April, 1991. The total price of the flat came to Rs. 5,49,360/-. The building was to be completed by the end of 1992, but it is alleged that it is not ready as yet. The complainant is now required to pay an amount of Rs. 7,10,476/on account of the price of the flat. It is averred that now the area of the flat is stated to be 1120 sq. ft. which could not be increased from 872 sq. ft. to 1120 sq. ft. unilaterally by the O.P. Consequently, it is prayed that the O.P. be directed to refund the amount deposited by him with interest @ 24% p.a., pay damages amounting to Rs. 75,000/or in the alternative to give the flat to him at the original price of Rs. 5,49,360/-.

THE complaint has been contested by the O.P. THEy have controverted the allegations of the complainant. THEy have inter alia pleaded that while booking the flat it was mentioned that the area of 570 sq. ft. was approximately area and that the complainant was bound to pay for the super area and additional area which would be given to him in the balconies and niches. It is also stated that the flats are ready for occupation, the complainant can take possession of the same. The first question that arises for determination is, whether the complainant is bound to pay for super area; if so, for how much. The O.P. vide letter dated 21st May, 92 (Annexure ''F'') informed the complainant that the area of the flat had been increased to 1127.74 sq. ft. and that in view of increase in the area the price of the flat came to Rs. 7,10,476.20P. The increased area included 186.15 sq. ft. as super area, 40.46 sq. ft. as area in balconies and 37.02 sq. ft. as area in niches. The complainant in reply to the said letter wrote that the area could not be unilaterally increased by them. In another letter he also wrote that the flat was not given to him in the end of 1992 as agreed and therefore, there was a breach of agreement on their part.

Ms. Sehgal, learned Counsel for the respondent has vehemently argued that it is common practice that out of the total area to be given to the purchaser, about 25% is the super area. Therefore, the area measuring 186.15 sq. ft. sought to be given as super area is not excessive. We have duly considered the argument. Nothing has been brought on the record to show that a purchaser is bound to pay for about 25% additional area, called as ''super area''. In the Application Form on which reliance has been placed by the O.P., it is provided that the area of 870 sq. ft. is the approximate area. The word ''approximate'' shows that the area could be more or less by a few sq. feet. It does not mean an increase of 25% area. In the present age, the builder can always find out approximate super area and can point out to the purchaser that in addition to the covered area he is required to purchase super area which would be roughly 20 to 30% of the covered area. However, at the time of booking this important fact is not brought to the notice of the purchaser. In this case the super area is 186.15 sq. ft. and its price would come to more than Rs. 1,00,000.00. In addition, the O.P. has given additional area to the petitioner under the pretext as area under niches and balconies. Thus the price of the flat has been increased by more than Rs. 1,50,000.00. In our view it is not fair on the part of the builder to claim price of 20% to 30% of the covered area on account of super area. The same is our view regarding the areas under the niches and balconies. This act of the Opposite Party amounts to ''unfair trade practice'' as defined in Section 2(1)(r) of the Consumer Protection Act.

THE 2nd question that arises for determination is, whether the flats were constructed within the stipulated period; if not whether there was sufficient reason for not doing so. THEre is no specific date mentioned in the brochure or any other document by which the flats were to be completed by O.P. However, while sending the registration amount, the complainant in his letter dated 14th April, 1991 (Annexure ''D'') said, that he had been given an understanding that the flats would be completed before the end of 1992 and that if that undertaking was correct and was acceptable to them, then they should encash the demand draft otherwise return the same. THE above condition was impliedly accepted by the O.P. by encashing the demand draft. After having agreed to the said condition it became their duty to have given possession of the flat by the end .of December, 1992. However, in the written statement it is admitted that the flat was not read for delivery of possession even on the date of riling the written statement. THE complainant had paid 70% of the instalment and the remaining amount was not paid by him as the price of the flat had been increased by the O.V. by about Rs. 1,61,000/-. We think the complainant was justified in not making the payment of the balance amount. Even if it may be assumed that he was not justified to withhold the payment, the builder should not have stopped the construction work and charged interest from him. Thus, there was no sufficient ground for the O.P. not to have completed the flat. After taking into consideration, all the facts and circumstances of the case, we are of the view that the complainant is entitled to refund of the amount deposited by him. He has claimed interest @ 24% p.a. which in our opinion is on the higher side. Consequently, we allow interest to him @ 15% p.a. As the interest has been given to the complainant at a fairly high rate, therefore, we are not inclined to give damages to him.

TAKING into consideration the facts and circumstances of the case, we accept the complaint with costs and direct the O.P. to pay an amount of Rs. 3,84,552/with interest @ 15% p.a. from the dates of deposits till the date of payment within a period of three months, failing which action shall be taken against them under Section 27 of the Consumer Protection Act. Costs Rs. 1,500/-. Complaint allowed with costs.