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Judgment
This consumer complaint has been filed by the complainant Satya Prakash Aggarwal against the opposite party Tashee Land Developers Pvt. Ltd. alleging that the opposite party has reduced the area of allotted flat from 2675 sq. ft. to 2359 sq.ft. without consent of the complainant and the same has been conveyed vide letter dated 16.06.2017. It has been alleged that the total consideration of the flat was Rs.1,04,26,825/- and the complainant has already paid Rs.99,56,911/-. The possession was due within 36 months with provision of further 6 months as grace period. The agreement is dated 15.4.2013, which mentions that possession will be handed over within 36 month plus 6 months as grace period from the date of sanction of the building plan. The building plan was sanctioned on 07.6.2012, therefore, the due date of possession has already expired and no possession has been given to the complainant. It has been requested in the complaint that the opposite party be directed to hand over the flat ad-measuring 2675 sq.ft. or to refund the amount deposited along with 18% p.a. interest. The complaint was resisted by the opposite party by filing the written statement. Both parties led their respective evidence.
Heard the learned counsel for both the parties and perused the record. Learned counsel for the complainant reiterated the facts mentioned in the complaint. Learned counsel stated that first of all there has been delay in handing over the possession as per the agreement and the most serious deficiency on the part of the opposite party is that instead of the flat of area 2675 sq.ft., a flat of area 2359 sq.ft. has been only offered to the complainant vide letter dated 16.06.2017. Learned counsel stated that he had booked a 4 BHK flat and now opposite party offered only 3BHK, which will not fulfil the requirement of the complainant and therefore, the complainant needs a 4 BHK flat or refund of the deposited amount.
Learned counsel for the complainant has referred to the following cases in support of his arguments:-
"(1) Swarn Talwar & 2 Ors. Vs. Unitech Ltd., CC No.347 of 2014 decided on 14, August, 2015 (NC)
(2) Puneet Malhotra Vs. Parsvnath Developers Ltd, CC No.232 of 2014, decided on 29, January, 2015 (NC).
(3) Manoj Kumar Jha & Anr. Vs. M/s. Unitech Ltd. Through its Managing Director, CC No.487 of 2014 (NC)"
Learned counsel for the complainant further argued that Hon'ble Supreme Court has already taken a view in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, that if the money is to be refunded then rate of interest is more as compared to the situation when the possession is handed over with delay. To support his argument, learned counsel referred to the judgment of the Hon'ble Supreme Court in M/s. Fortune Infrastructure (Now Known as M/s. Hicon Infrastructure) & Anr. Vs. Trevor D'Lima & Ors., where in the same view have been reiterated by the Hon'ble Supreme Court.
On the other hand, learned counsel for the opposite party stated that area mentioned in the agreement is never the exact area and there happens always some change in the final area when the building is complete. Moreover, in the present case, the original plan was sanctioned on 07.06.2012 and further revised plan was submitted to the Director General of Town and Country Planning, which was approved on 09.12.2016 by the Director General of Town and Country Planning, Haryana. The building has been constructed as per the revised plan and therefore, there has been some difference in the area of the flat. Before approving the revised plan, a notice was sent to all the allottees by order of the Director General of Town and Country Planning, Haryana for submitting objection, if any, to the revised plan. Letter dated 03.10.2016 was also sent to the complainant by the opposite party in this regard, however, no objection was filed by the complainant and therefore, the Director General of Town and Country Planning, Haryana approved the revised plan on 09.12.2016. Thus, no deficiency can be attributed to the opposite party.
I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record. The builder-buyers agreement clearly states that the possession will be handed over within 36 months plus 6 months grace period from the date of approval of building plan. The building plan was approved on 07.6.2012 and therefore, the possession was due on 07.12.2015. The possession was clearly not handed over to the complainant. The opposite party sent a letter dated 16.06.2017 to the complainant informing reduction in the area of the flat from 2675 sq.ft. to 2359 sq.ft. The argument of the opposite party is that this area has been changed due to revised plan, which was approved by the Director General of Town and Country Planning, Haryana on 09.12.2016. It has also been stated by the learned counsel for the opposite party that a letter dated 03.10.2016 was sent to the complainant for making any objection to the revised plan before the Director General of Town and Country Planning, Haryana and no objection was raised.
Builder-buyers agreement was signed on 15.04.2013 and therefore, it cannot be related to the revised plan dated 09.12.2016. Thus, the agreement was clearly in respect of the building plan sanctioned by the Director General of Town and Country Planning, Haryana on 07.06.2012. Clearly the opposite party had the option of getting the building plan changed after the approval of the competent authority and the same has been done, however, there cannot be any binding on the allottee as per the builder-buyer agreement dated 15.4.2013 to accept the revised plan. Hence, if the complainant is refusing to take the possession of the flat with lesser area, the complainant is fully justified. As the opposite party is not in a position to deliver the possession of the flat with area of 2675 sq.fit., only remedy to the complainant is to get refund of the amount deposited by the complainant with the opposite party.
Based on the above discussion, the complaint is allowed and the opposite party is directed to refund the deposited amount of Rs.99,56,911/- to the complainant along with 9% p.a. interest from the date of respective deposits till actual payment. The opposite party shall also pay a sum Rs.20,000/- as cost of litigation to the complainant. This order be complied with by the opposite party within a period of 45 days from the date of receipt of the order, failing which an additional interest of 3% shall become payable from the date of this order till actual realisation.