Shreeyut Shri Gopal Bansal vs Thapar Builders (P) Ltd.

R.C. Lahoti, J.

(1) The defendant .is a builder. On 21.2.1988, the defendant entered into an agreement to sell a flat having an area of 88.7 sft bearing Nos. 9 and 10 on the first floor of a multi-storeyed commercial complex known as THAPAR CHAMBERS-111, at 2, Desh Bandhu Gupta Road, New Delhi. The consideration was fixed at Rs. 9,45,443.49. The sale consideration has been paid to the defendant. The defendant delivered possession of the flat to the plaintiff but it was found that the plinth area was only 519.61 sft instead of 888.7 sft as was agreed .Adding at the rate of 20% the total area would come to 623.53 sft. In view of the shortage of the area, the plaintiff served a notice and then filed the present suit seeking specific performance of the agreement to sell to the extent to which the area has fallen short.

(2) It appears that though the suit was contested initially but ''during the course of hearing the scope of controversy narrowed down. On 9.5.89, the Court appointed architect to take the measurements. The defendants were directed to retain ownership right in any of the flats on the first or any other floor of the building to the extent of 265.17 sft.so as to make the same available to the plaintiff. On 31.7.1991, the defendant informed the Court that an area of 265.17 sft was reserved for the plaintiff in the basement. On 14.11.1991, it was informed to the Court that only area out of which the plaintiff could be compensated v/as available n the basement and nowhere else. On 29.5.92, it was settled in the presence of the parties that the plaintiff would accept the area in the basement and the defendant would also compensate the plaintiff for the loss. which he might have incurred ash was not given space on the first floor or any floor other than the basement. To find out the difference in price a Local Commissioner was also appointed.

(3) The Commissioner has opined that the rates of the basement were lower than the rates of the first floor and difference was Rs. 600.00 per sft.; on the basis of the difference in rates, value for 265.17 sft would come to Rs.1,59,102.00. No written objections have been filed to the report of the Commissioner. Having perused the report of the Commissioner, this Court is satisfied that there is no reason why the report of the Commissioner should not be accepted .

(4) For the foregoing reasons the suit is decreed in part. Before formulating the operative part of the judgment it may be placed on record that the learned Counsel for the plaintiff has made a statement at the time of delivery of this judgment that the plaintiff would be satisfied if the defendant is directed by the decree to deliver possession to the plaintiff 265.17 sft area in the basement. In view of that statement, it is directed that the defendant shall deliver possession of265.17 area of the basement to the plaintiff and shall allow the plaintiff to remain in undisturbed peaceful possession thereof. At the time of delivery the area shall be specified by drawing a sketch map thereof and by specifying the same in a plan of the basement part of the plot. The plaintiff would also be entitled to recover an amount of Rs.1,59,102.00from the defendant. The costs in the suit incurred by the plaintiff shall be borne by the defendant.

(5) The Commissioner Shri jagmohan Saberwal Advocate has been paid a fee of Rs. 5000.00 in terms of the Court order dated 29.5.92. He has held about eight or nine hearings. He would be paid a further fee of Rs. 5000.00 to be borne equally by both the parties. If the defendant does not pay, the amount shall be paid by the plaintiff and recovered from the defendant as costs in the suit. Let a decree be drawn in terms of para 4 above.