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TMI Blog2020 (8) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... rchitect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. 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. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 09.02.2013, whichever is later. Thus, the possession was to be given latest by 08.02.2017. It has been alleged in the complaint that paper possession of the unit was offered on 08.12.2017 without proper facilities and amenities as promised in the agreement. 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 @ 18% 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 direct the opposite party to refund an amount of Rs. 6,36,445/- which is the additional extra amount arbitrarily ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it is clear that the decision to raise the super area was taken by the opposite party without any certificate of the architect and to justify the same opposite party got a certificate dated 30.1.2018. Clearly, there is no basis for increase in the area and this is a pure unfair trade practice on the part of the opposite party. It was requested that this demand be set aside. 7. Learned counsel for the complainant further stated that the possession has not yet been handed over to the complainant and it was requested that the opposite party be directed to hand over the possession within a reasonable time. It has also been requested that compensation in the form of interest @18% p.a. on the amount paid by the complainant be also ordered to be paid to the complainant. 8. It was vehemently contested by the learned counsel for the complainant that the complainant was not a consumer. It was stated that the complainant is not engaged in the trade of plots or flats. In support of his arguments the learned counsel referred to the following judgment:- Vasant Prabhakar Darekar anr. Vs. Anand Vyankatesh Horaddi anr. FA No.1388 of 2016, decided on 01.012.2016 (NC). It has been held that:- 7. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r month is to be paid for the period of delay. The complainant is only entitled to the agreed compensation in the agreement. In support of this contention, the learned counsel for the opposite party referred to the following judgments:- 1. DLF Homes Panchkula Pvt. Ltd. anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207 . It has been observed:- 16. The District Forum under the Consumer Protection Act, 1986. (1986 Act) is empowered inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party including to grant punitive damages. But the forums under the Act cannot award interest and/or compensation by applying rule of thumb. The order to grant interest at the maximum of rate of interest charged by nationalised bank for advancing home loan is arbitrary and no nexus with the default committed. The appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer s agreement. There cannot be multiple heads to grant of damages and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate. 13. On the basis of the above judgments, the learned counsel claimed that any compensation in terms of interest on the amount paid is not justified as the allottee has already got the benefit of appreciation in the price of the property and will also get the damages as agreed by the parties in the builder-buyer agreement. 14. I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. First of all, it is seen that the contention of the opposite party that the complainant is not a consumer because he has purchased two flats is not tenable. This has now been established that mere booking of more than one flat does not take the allottee out of the purview of the Consumer Protection Act. This Commission in Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, has held as follows:- In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s). 7. Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity. 8. As observed by the Hon ble Supreme Court in Laxmi Engineering Works (supra) what is a commercial purpose is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to. The same would be equally applicable to for hiring or avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. 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. This has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the parties for delay in possession and therefore, in the light of the decision of the Hon ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, (supra), it is difficult to compensate the complainant by ordering interest on the amount paid by the complainant. The complainant must have faced lot of mental agony and harassment due to delay in handing over possession and therefore, appropriate lump sum compensation shall be granted for the same. Accordingly, in CC 285 of 2018, I deem it appropriate to grant a compensation of Rs.5,00,000/- for mental agony and harassment to the complainant. Similarly in CC 286 of 2018, I am inclined to grant a compensation of Rs.3,00,000/- to the complainant for mental agony and harassment, caused due to delay in offering possession. 19. On the basis of the above discussion, both the complaints being CC No.285 of 2018 and CC No.286 of 2018 are partially allowed as under:- (i) The demand for excess area is cancelled and the opposite party is directed to send revised demand excluding for the demand of excess area without adding any new demand within a period of 30 days along with the offer of possession. (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X
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