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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain,Presiding Member
Pawan Gupta —Complainant
Versus
Experion Developers Pvt. Ltd. —Opp.Party
Consumer Case No. 285 of 2018
Decided on 26.8.2020
Consumer Protection Act, 1986 – Sections 21, 2(1)(o) and 14 : Consumer Protection Act, 2019 – Sections 58, 2(42) and 39 – Real Estate Regulation Act, 2016 – Preamble – Allotment of flat – Demand of extra money for extra area – Scope – Complainant had booked two residential flats – Opposite party demanded extra money for excess area and there is also delay in handing over the possession – Complaint against – Contention of opposite party that complaint is not a consumer because he purchased two flats not tenable – No document filed by opposite party to prove the excess area – Real test for excess area would be that the opposite party should provide a comparison of areas of the original approved common spaces and the flats with finally approved common spaces/buildings and the flats – There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of extra super area at the final stage – Though RERA, 2016, had made at compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area in not yet fully solved and further reforms are required – Demand for excess area cancelled – opposite party directed to handover possession to complainants within 30 days – And also directed to pay compensation of Rs. 5,00,000/- and 3,00,000/- in both complaints respectively – Along with interest @ 7.5% per square fit – Further directions also issued. (Paras 14 to 19)
Result: Complaints allowed.
ORDER
Prem Narain,Presiding Member—These two consumer complaints have been filed by the complainant Pawan Gupta against the opposite party Experion Developers Pvt. Ltd.
2. As the parties in these complaints are same and the complaints relate to the request for handing over the possession in both the cases, these complaints are being considered together for passing final order.
3. Brief facts of both the complaints are as under:-
CC 285 of 2018
3.1. The complainant had purchased 2 residential flats in a project by the name of “Windchants” of the opposite party. The present case is for Unit no. WT-05/1202 allotted to the complainant. The total consideration of the apartment was Rs. 2,92,89,639/- which was later unfairly raised to Rs.3,10,48,232/- (due to an increase in the sale area) and the builder -buyer’s agreement was signed on 26.12.2012. As per clause 10(a) of the agreement, possession was to be given within 42 months plus 6 months as the grace period, from the date of approval of building plans; or date of receipt of the approval of the Ministry of Environment and Forest, Govt. of India for the project; or execution of the agreement dated 26.12.2012, whichever is later. Thus, the possession was to be given latest by 26.12.2016. It has been alleged in the complaint that despite the total payment of Rs.2,61,58,237/- towards the sale consideration, the opposite party failed to handover the possession of the allotted unit within the stipulated time period. Hence the complainant has filed the present complaint with the following prayers:-
1. To direct the opposite party to handover the legal possession of the unit along with all the promised facilities and amenities to the complainant.
2. To direct the opposite party to pay to the complainant interest @ 12% p.a. on the amount deposited by the complainant, for the total delay in handing over the possession.
3. To direct the opposite party to refund the entire amount collected on account of service tax, car parking, and the extra price charged on account of the alleged increase in common areas along with 18% interest.
4. To restrain the opposite party from imposing on the complainant any additional charge on account of the arbitrary increase in the price of the flats.
5. To award the cost of the complaint to the complainant.
3.2. The complaint has been resisted by the opposite party by filing the written statement. It has been stated that the complainant has multiple bookings which prove that the complainant is not covered under the definition of ‘consumer’ as provided in the Consumer Protection Act 1986 (in short the “Act”). It has been stated that the issue in the present complaint relates to the interpretation and implementation of the terms of the said builder buyer’s agreement which can only be decided by a Civil Court. It has been further stated that the dispute arising from builder buyer’s agreement does not relate to the rendering of services under Sec 2(1) (o) of the Act. As per clause 10.1, 10.2, and 13.1, it was agreeable to the complainant that there could be some delay beyond 48 months and the complainant specifically agreed for the remedy provided in the agreement for such delay. It has been stated that the complaint by the complainant falls outside the scope of Sec 14 of the Act and is, thus beyond the jurisdiction of this Commission. It was requested to dismiss the complaint.
3.3. The complainant submitted in the rejoinder that incomplete possession of the unit was offered to him on 27.12.2018.
3.4. Both parties filed their evidence by way of affidavits which have been taken on record. The opposite party has stated that the opposite party has completed the construction of the apartment and has obtained occupation certificate dated 24.12.2018 and issued Notice of Possession dated 27.12.2018 to the complainant.
CC 286 of 2018
3.5. The present case is for Unit no. WT-07/2701 allotted to the complainant. The total consideration of the apartment was Rs.1,66,28,890/- which was l
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