IMPORTANT POINT
“Excess Area” - The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats.

ORDER

The present Appeal has been filed against the order dated 14.01.2021 of the State Consumer Dispute Redressal Commission, Delhi (for short “the State Commission”) in Complaint No.638 of 2018.

2. The brief facts of the case are that the Respondent (hereinafter referred as “the Complainant”) booked a residential apartment in the project of the Appellant (hereinafter referred as “the Opposite Party”) called “Tuscan Heights” situated at Tuscan City, Kundli, District Sonipat Haryana. An allotment letter dated 18.08.2011 for unit No.T-7/0503, measuring 1520 sq. ft. was issued to him and he had paid a sum of Rs.3,50,000/- for the said purpose on 21.01.2010. A Builder Buyer Agreement was subsequently executed between the parties on 18.11.2011 for a total consideration of Rs.41,18,726/-.

3. The case of the Complainant was that he had paid a sum of Rs.39,80,699/- till the date of filing of the Complaint in the year 2018 and no offer of possession had been made to him, rather the Opposite Party had made untimely demands as car parking charges along with 14th instalment while the same was to be made at the time of possession. As per Clause 30 of the Builder Buyer Agreement, the possession was to be delivered within 30 months from the date of execution of the Agreement, i.e., by May 2014. He had also contended that the Opposite Party had unilaterally enhanced the area by 288.80 sq. ft. which was reflected in the final statement of account dated 03.03.2018 and the Opposite Party had wrongly charged additional amount of Rs.10,89,449/- for increased area. He had further contended that vide letter dated 10.04.2018, he had asked for explanation about the increased area and also mentioning about the delayed possession. He had further contended that even after eight years from the date of booking, the possession had not been offered to him and the project is under construction. He had further contended that the Opposite Party was deceitful, fraudulent and malicious from the very beginning and is guilty of unfair trade practice and there is deficiency in service on their part. He had paid approximately 96% of the total consideration by February 2017. Opposite Party had also used its position and strength in dictating one side terms. On these contentions, the Complainant had prayed for handing over of the possession of the apartment complete in all respects within six months of the date of filing of the Complaint and in case of failure on the part of the Opposite Party in handing over the possession within that period, for refund of the total amount paid by him along with interest @ 18% p.a., Rs.6,000/- per day for failure to provide the possession within the stipulated time, compensation of Rs.5 Lakh for mental agony, harassment, discomfort and undue hardships and Rs.1 Lakh towards litigation costs.

4. The Opposite Party before the State Commission was served on 16.01.2019 and put in appearance through Counsel Sh.Bhrigu Dhami. Copy of the Complaint was supplied to him and he was directed to file written version within 30 days. Written statement was, however, filed on 05.03.2019 which was beyond the statutory period of 30 days and the delay was condoned on the no objection of the Counsel for the Complainant on payment of costs of Rs.3,000/- vide order dated 05.03.2019. Since the Opposite Party failed to pay the costs by 24.10.2019, the Opposite Party was given one more opportunity to pay the costs by 13.03.2020. However, by that date also, the costs were not paid and vide order dated 13.03.2020, the written statement was taken off from the record. The Complainant filed its affidavit in evidence and also written arguments.

5. After hearing the arguments, the State Commission allowed the Complaint and ordered for refund of the deposited amount with interest @ 9% p.a.

6. This order is impugned before us on several counts. On the date of hearing, learned Counsel for the Complainant/Respondent was also present on caveat. Arguments of learned Counsel