R.N. Mittal, President - Briefly, the facts are that the opposite party(O.P.) No.1 is carrying on business of a builder and O.P. 2 is the Managing Director of O.P. 1. The Ops. started building a shopping complex known as Bhanot Plaza on D.B. Gupta Road, New Delhi. The complainant booked a shop measuring 112 sq. ft. in that complex. The total price of the shop was Rs. 95,200/- which was to be paid in installments. He was allotted shop No. B-2 in the basement. He paid an amount of Rs. 90,440 in installments as detailed below :-

S. No. Receipt/Cheque No. Dated Amount

1. 5575 11-4-1987 Rs. 14,280/-

2. 6279 18-8-1987 Rs. 14,280/-

3. Chq. No. 155901 3-7-1987 Rs. 19,040/-

4. Chq. No. 082180 22-2-1988 Rs. 4,760/-

5. 5918 13-8-1988 Rs. 9,520/-

6. 6557 14-11-1988 Rs. 9.520/-

7. 6676 28-12-1988 Rs. 9520/-

8. 6698 31-01-1988 Rs. 4,760/-

9. 7461 31-05-1989 Rs. 4760/-

Total payment Rs. 90,440/-

It is pleaded by the complainant that the building has not yet been completed and that the shop which is being offered to the complainant measures only 70 sq. ft. Thus, there is deficiency in the service of the Ops. and he is entitled to the refund of the amount deposited by him with interest.

2. The complaint has been contested by the O.P. They inter-alia pleaded that the shop was, offered to the complainant but he did not pay the balance amount and took possession thereof consequently, they are not liable to refund the amount.

3. The question that arises for determination is, whether the shop which is being offered to the complainant measures 112 sq. ft. as agreed to be sold to him. The complainant has given an affidavit wherein he has stated that the actual floor area of the shop ison1y 70 sq. ft. against area of 112 sq. ft. which he booked. Out pf 70 sq. ft. area about one 3rd area i.e. 20 sq. ft. is encroachment on the public land and its roof is 5 ft. high. It is further stated that there is a pillar of about 4 feet circumference inside the shop for which he has paid the price. In the affidavit filed by the opposite party the aforesaid facts have not been contradicted. Therefore, there are no reasons for disbelieving the affidavit of the complainant.

4. It is thus apparent from the affidavit that the O.P. is giving 42 sq. ft. less area to the complainant. It is being stated by OPs. that they sold super area to the complainant and that 42 sq. ft. has been used by them for the common purposes. It has been held by this commission in Dr. Raghubir Singh Jain v. M/s. Ansal Housing & Constructions Ltd. that it is not fair on the part of the builder to claim price of 30% of the covered area on account of super area and that this act of the opposite party amounts to 'unfair trade practice as defined in section 2(1)(r) of the Consumer Protection Act. In the present case the area allegedly used for common purposes is more than 35% of the area sold to the complainant. The roof of20 sq. ft. area given to him has roof at the height 5 ft. It is not possible for a man even to stand in that area. Thus the area of complainant has further been reduced by the O.P.

5. After taking into consideration the aforesaid circumstances we are of the view that the service provided by the O.P. to the complainant is deficient. Consequently, the complainant is entitled to the refund of the amount of Rs. 90,440/-.

6. The complainant has also claimed interest on the said amount. The rates of interest have gone very high. In the circumstances, we allow interest to the complainant @ 18% p.a.

7. For the aforesaid reasons we accept the complaint with costs and direct the O.P. 1 to pay the amount of Rs. 90,440/- with interest @ 18% p.a. from the date of deposits till the date of payment within 3 months, failing which action shall be taken against them under section 27 of the Consumer Protection Act. Costs Rs. 1500/-. The complaint against O. P. 2 is dismissed.

Complaint allowed with cost of Rs. 1500/-.