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Sadashiv Gopinath Kirad vs. Smt. Suman Mohan Thekedar dated 2012-05-15

 

 
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
 
REVISION PETITION No. 413 of  2008
(From the Order dated 15.10.2007 in Appeal No. 373/2003 of the State Consumer Disputes Redressal Commission, Maharasthra)
 
Sadashiv Gopinath Kirad
Room No.993, Nana Peth,
Near Padamji Park,
Pune-411002                                               .. Petitioner
 
VERSUS
 
Smt. Suman Mohan Thekedar
Room NO.405/10, Somwar Peth,
Pune-411001
Maharashtra.                                         . Respondent
 
BEFORE: -
        HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
        HON’BLE MRS. VINEETA RAI, MEMBER
 
For the Petitioner     :  Mr. Amol Chitale, Advocate                                  
 
For the Respondent :  In Person
 
 
PRONOUNCED ON:          15.05.2012
 
 
O R D E R
 
ASHOK BHAN, J., PRESIDENT
 
 
        Petitioner who was the Opposite Party before the District Forum has filed this Revision Petition against the order and judgment dated 15.10.07 passed by the State Consumer Disputes Redressal Commission, Maharashtra (in short, ‘the State Commission’) in appeal No.373/03 whereby the State Commission upholding the order of the District Forum has partly allowed the appeal and directed to the Petitioner to refund amount of Rs.1,05,127.50 to the Respondent towards the cost of lesser built up area of 140.17 sq. ft. along with interest @ 9% p.a. from 13.4.98 till the date of realization. Rs.25,000/- were awarded towards compensation for mental agony and Rs.5,000/- for cost of litigation.
FACTS:-
        Respondent/Complainant entered into an agreement on 3.06.96 with the Petitioner builder for purchase of flat No. 3 having built up area of 714 sq. ft. on the third floor of the building located at C.T.S. No.405 Somwar Peth Pune-2.  In clause 2 of the said agreement, “built up area” was clearly defined to mean and include outer area of the flat including stair case and the area under all the walls and area of balconies, all rooms passages, toilets, W.C.L. area below the kitchen otta, tiles, skirtings, door jams etc. along with the proportionate share in common parking in the said building.  At the time of taking possession of the flat, Respondent was given a report of Architect Shashikant Pethe who stated in his report that the building was ready for occupation and the net carpet area of the flat in question was 395.00 sq. ft. and built up area including stair elevational treatment was 714 sq. ft.  One Mr. Gopal Chandorkar, Architect had taken the measurement of the flat in possession of the Respondent and stated that the built up area of the flat was 565.00 sq. ft against the agreed built up area of 714 sq. fts. as per agreement.  Respondent filed the complaint before the District Forum alleging that he paid the entire amount of  consideration but has been given lesser built up area of 565.00 sq. ft. as against the built up area of 714 sq. ft. as agreed between the parties.  That there were certain other defects in the flat.
        Petitioner, on being served, entered appearance and filed his reply denying all the allegations made in the complaint.
        District Forum allowed the complaint in the following terms:-
(i)           The application of the applicant is sanctioned partly.
(ii)          The non-applicant has to open the joint space below the stair case in the building of the applicant for the use of all residents.  Similarly the compound wall should be constructed in the building.  The stair case should be join to the water tank.  Similarly, the account about the deposit which was taken from the applicant should be given to the applicant by the non-applicant.
(iii)        The completion of the above facts/matters should be done by the non-applicant within the eight weeks from the getting the judgment copy.  Otherwise if the completion is not done within the limitation, then the applicant is remained liable to get the damages of Rs.100/- per month (Rs.one hundred) from the non-applicant.
(iv)        The non-applicant has to pay the expenses of the complaint of Rs.100 (Rs. one hundred) to the applicant.
Petitioner accepted the order of the District Forum and did not file any appeal. However, Respondent filed the appeal alleging that instead of giving 714 sq. ft. build up area, she was given only 573.83 sq. ft. of built up area.
State Commission after due appreciation of the material available on record and the evidence led by the parties recorded the finding that while deciding the main question involved in the case, the District Forum turned down the report of Architect Shri Chandorkar on the absurd ground that he had not mentioned the exact measurement of each of the rooms, bathroom, galleries etc. found in possession of the complainant.  State Commission in order to ascertain the true facts appointed Mr. Umesh Bhosale, Government registered valuer and Chartered Engineer and Architect as Court Commissioner to submit a report after taking all the measurements of the flat in detail.  Mr. Bhosale submitted in his report that as per the agreement, the built up area of the flat was to be 714 sq. ft. but actually the built up area of the flat in possession of the complainant was of 573.83 sq. ft.  The relevant portion of the report of the Court Commissioner reads as under:-
“Saleable built up area =53.3 Sq.- M = 573.83 st. ft.
 
Note : As per guidelines of PBAP/Promotors & Builders Association Poona/for Residential premises, Sales Area shall be carpet area + 25%, and Inversely Carpet Area shall be 80% of Sales area.
 
Commercial premises, Carpet Area shall be 75% of Sales Area.
 
A per my calculations, Carpet Area is 75.94 % of the actual saleable area which is near by PBAP guidelines.
 
As per the agreement between Mrs. Suman Mohan Thhekedar and Sh. Sadashiv Gopinath Kirad Saleble area considered is 714 Sq. Ft. which is false.
 
Excess Saleble Area = 714.00 Sq. Ft – 573.83 Sq. Ft.
Excess Saleble Area = 140.17 Sq. Ft. “
 
 
          Petitioner filed the objections to the report of the Court Commissioner.  It was stated that the Commissioner has not included the area of 67.47 sq. ft. in his report as shown in elevation.  The statement about 140.97 sq. ft. excess sellable area has been made wrongly. The constructed area has been wrongly shown in the report.  The parking area has been wrongly measured.
          State Commission relying upon the report of Court Commissioner maintained the order of the District Forum and granted further relief to the Respondent in the following manner :-
1.   Appeal is partly allowed.
2.   Besides the reliefs granted by the forum below, we direct the respondent/builder to refund amount of Rs.1,05,127.50 (Rupees one lakh five thousand one hundred twenty seven and paise fifty only) for having given lesser built up area of 140.17 sq. ft. than the agreed built up area of 714 sq. ft.  The is amount shall carry interest @ 9% p.a. from 13.4.98 till the date of realization of amount.
3.   The respondent shall also pay compensation of Rs.25,000/- for the mental agony and harassment caused to her because of deficiency committed by the respondent.
4.   Respondent shall also pay costs of Rs.5,000/- to the complainant as costs of this appeal and bear his own costs.
Heard the Ld. Counsel for the parties at length.
Ld. Counsel appearing for the Petitioner contends that the Court Commissioner has failed to take into consideration 52.72 sq. ft. of stair case area, 24.46 sq. ft. of parking area and 67.47 sq. ft. of elevation area totally amounting to 144.65 sq. ft. while calculating the total area of the flat. That the term “built up area” was specifically defined in the agreement and the Respondent was given built up area of 714 sq. ft.
As against this, Respondent appearing in person supported the order passed by the State Commission.
The main question which falls for our consideration in the present case is as to whether the Respondent has been given the lesser built up area of “573.83 sq. ft.” as against the built up area of 714 sq. ft. as agreed under clause 2 of the agreement.  Clause 2 of the agreement reads as under:-
“2.   The flat/shop/godown purchaser hereby agrees to purchase from the Developers Promoters and developers agrees to sell the flat purchaser one flat bearing flat no. 3 on 3rd Floor having built up area of 714 sq. ft. (built up area shall mean and include outer area of the flat including staircase and the area under all the walls and area of balconies, all rooms passages, toilets, W.C.L. area below the kitchen otta, tiles, skirtings, door jams etc. along with the proportionate share in common parking in the said building.”
 
          Architect Shashikant Pethi in his report has certified that the net carpet area of the flat in question was 395 sq. ft. and the built up area including the stair elevation treatment was 714 sq. ft.  However, Mr. Gopal Chandorkar, Architect in his report has stated that the flat was having a built up area of 565.00 sq. ft. as against the agreed built up area of 714 sq. ft.  In view of the conflicting reports given by two Architects, State Commission appointed Mr. Umesh Bhosale, an independent Govt. registered valuer, as Court Commissioner to take all the measurements in detail and submit the report.   The Court Commissioner in his report stated that the built up area was 573.83 sq. ft.  Petitioner has not produced any evidence to show that he has handed over built up area as agreed between the parties.  The only evidence available is the report of the Architect Gopal Chandorkar and the Court Commissioner which show that the built up area given to the Respondent is less than to what had been agreed upon.  Architect Shashikant Pethe in his report has stated that the net carpet area of the flat was 395 sq. ft. The built up area cannot be double of the carpet area. The finding recorded by the State Commission is a finding of facts based on evidence.  Finding of facts based on evidence cannot be interfered in exercise of revisional jurisdiction u/s 21 (b) of the Act which reads as under:-
          “21 (b) to call for the records and pass appropriate orders in any con­sumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. ”
 
          We do not find any illegality, infirmity or material irregularity in exercise of our jurisdiction in the order passed by the State Commission which calls for interference in revisional jurisdiction u/s 21 (b) of the Act. The Revision Petition is dismissed with no order as to costs.
….. . . . . . . . . . . . . . .
                                                                   (ASHOK BHAN J.)
   PRESIDENT
 
                                                            . . . . . . . . . . . . . . . .
            (VINEETA RAI)
   MEMBER
 
 
 

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