1. This appeal has been filed under Section 44(1) of the Real Estate (Regulation and Development) Act, 2016 (‘Act 2016’) by Sri Kamlesh Bhardwaj (hereinafter referred to as the ‘appellant’) against the order dated 16.06.2022 passed by the U. P. Real Estate Regulatory Authority, Regional Officer, Gautam Budh Nagar (hereinafter referred to as ‘Regulatory Authority’) in Complaint No. NCR144/10/84299/2021, whereby the Regulatory Authority passed the following order:--
(i) Respondent/Promoter is directed to ensure delivery of possession to the complainant/allottee along with OC/CC by July, 2022,
(ii) Respondent/Promoter is directed to pay delay interest @ MCLR+1% from 19.08.2019 till receipt of OC/CC or offer of possession, whichever is later. The amount of interest shall be adjusted towards final payment and remaining amount of interest shall be returned by the promoter to the complainant.
(iii) If any amount remains to be paid by the appellant, he shall pay the same to the respondent. If there is any delay in payment by the complainant then the respondent is liable to get delay interest under Section 2(za)(i) of the Act, 2016, but the rate of interest shall not be more than MCLR+1%.
(iv) The period of force majeure (25.03.2020 to 25.09.2020) shall not be counted for the purpose of delay in payment by the complainant or delay in completion of the project by the respondent.
(v) In case of not providing possession of the unit by the respondent till July, 2022, the respondent will refund the entire deposited amount with interest @ MCLR+1% from the date of deposit till the date of payment after 45 days from July, 2022.
2. The facts of the case, in brief, are that appellant/complainant booked a Commercial Unit being shop No.FA-109 (herein after referred to as ‘shop’) under Flexi payment plan in the Commercial Complex Project “GALAXY DIAMOND PLAZA’ situate at Plot No./C-1A, Greater Noida (West), District Gautam Budh Nagar of the promoter/respondent by making a payment of Rs.2,72,470/- as booking amount vide Cheques on 23rd February, 2016.
2.1 In pursuance of the booking, respondent allotted shop vide Allotment letter dated 5th July, 2016, having Super Built Up Area of 163 sq ft (15.14 sq mtr); comprising Polyline Area i.e. the RCC Slab area of the shop space is 81.56 sq ft (7.577 sq mtr); and common area 81.44 Sq ft (7.56 sq mtr) under the Flexi Payment Plan enclosed with the allotment letter. Thus the appellant had to pay total sum of Rs.24,32,775/- under the said payment plan. 25% of the amount of Rs.6,08,193/- was payable at the time of offer of possession. The allotment letter further stipulates that construction of the project was to be completed within a period of 36 months i.e. by 5th July, 2019 and possession of the allotted shop was to be delivered by the respondent to the appellant accordingly within the said period pursuant to having the OC/CC of the project from the competent authorities.
2.2 The appellant as per her obligation has paid an amount of Rs.19,50,478/- out of the total sale consideration, as agreed upon. The respondent had to deliver the possession of the allotted shop in a stipulated period of 36 months, having carpet area of the Shop of 81.56 sq ft i.e.7.57 sq mtr but respondent delayed in raising the construction and consequently delivering possession of the allotted shop despite appellant had paid required agreed amount as per terms of Flexi payment plan.
2.3 The respondent vide offer of possession letter with Statement of Account dated 10.09.2019 offered possession with delay. In the statement of account, Carpet Area of shop was mentioned as 52.42 sq ft (4.87 sq metr), and the respondent also demanded various amounts under various heads which entirely were not agreed upon nor even payable by the appellant and were beyond the terms of the allotment and payment plan schedule. Only charges which are payable as per Flexi Payment Plan are IFMS, One Time lease rent, Sinking Fund, Power Back up and Electric meter charges and no other charges were payable by the appellant as asked vide Statement of Account.
2.4 After receiving the above offer of possession letter from respondent, appellant along with her husband and family visited the Project of the respondent and was shocked to see that the respondent had reduced the area of the shop substantially, as admitted in the Statement of Account annexed with offer of possession letter. The respondent had agreed to deliver the shop consisting of Super Built up area of 163 sq ft comprising of area of shop space of 81.56 sq ft (which is now reduced to 52.42 sq ft i.e. 4.870 sq mtr) with Common area of 81.44 sq ft. Thus there is unilateral reduction of area of the allotted shop and the respondent is demanding illegal amount of the same. Similarly in view of the reduction of carpet area of shop (which is for the first time disclosed in the statement of account and never before by the respondent), the Super built up area too is liable to be reduced proportionately which will come to 123.88 sq ft instead of 163 sq ft. Accordingly appellant and her husband met the officials of the respondents and informed about the said reduction of area and in view of substantial reduction, now the shop carpet area has become so small which is not worth anymore. The respondent had to deliver the area of shop consisting of 81.56 sq ft as promised to be delivered. It is further submitted by the appellant that the architects of the respondent too acknowledged that the SuperBuilt Up area of the Unit has been reduced to 123.88 sq ft as opposed to the promised area of 163 sq ft mentioned in the allotment letter. The carpet area of the allotment unit was also reduced by the respondent.
2.5 Thereafter appellant and her husband made numerous communications through e-mails, WhatsApp, letters and even personal visits to the respondent’s office for meeting with their concerned officials and Director of Company, but no reply or any information was given by the respondent as to why the area of the allotted unit was reduced and as to why the appellant should pay the amount when the area of the said allotted unit was reduced substantially. Having no response from the respondent the appellant further vide her letter dated 26.11.2020 called upon the respondent and invited attention with regard to reduced area of shop but again no response was received.
2.6 Instead of responding to the appellant’s messages, emails and to personal visits drawing attention with regard to reduction in area of the shop and illegal demands made contrary to allotment agreed terms, respondent failed to pay any heed and on contrary vide letter dated 28.07.2020 cancelled illegally the allotted shop of the appellant and forfeited 10% cost of the shop.
2.7 The appellant has honored her part of the promise by paying the requisite amounts as per the payment plan in the timely manner, whenever called upon except the last demand issued by the respondent, which was not paid because the area of the shop (both super-built up area as well as carpet area) was substantially reduced arbitrarily.
2.8 Being aggrieved by the action of the respondent, the appellant filed Complaint No. NCR144/10/84299/2021 “Kamlesh Bhardwaj Vs. Asteroid Shelters Homes Pvt Ltd.” submitting that the builder has delayed in handing over the possession of the allotted shop and further reduced area/size of the shop substantially and thus sought refund of the amount with interest. During the proceedings/hearing on 08.04.2022, the appellant prayed for refund of deposited amount with interest.
3. The appellant has challenged the impugned order dated 16.06.2022 passed by the Regulatory Authority on the following grounds:--
(A) In view of admitted fact that the respondent developer has arbitrarily without seeking any consent from the appellant reduced substantially the carpet area of the shop to 52.42 sq ft as mentioned in their statement of account dated 10.09.2019 and further as indicates from record of company document dated 23.11.2021, wherein is now reduced to 49.08 sq ft, which factum has not been considered by the RERA Authority nor recorded any finding or discussed anywhere this main issue in question of reduced area of the shop for which the complaint case was filed by the appellant is a crux and core issue of the matter.
(B) The learned Authority framed issues of its own contrary to pleadings and further erred in deciding the issues particularly Issue No.2 erroneously and illegally relying upon various judgments in its impugned judgment which are not applicable in the case of the appellant rendering the impugned judgment not sustainable in law and liable to be set aside.
(C) Learned Authority erred in citing certain judgments in disposing the said Issue No.2 and erroneously came to the conclusion that in case refund of the deposited amount sought with interest is directed to be refunded to complainant will adversely affect the construction work of the project of respondent and thus on these premises erred in holding in not passing direction for refund of the appellant the deposited amount with interest.
(D) The learned Authority while disposing the Issue No.2 failed to take into consideration the substantial reduction in carpet area of the Shop to 49.08 sq ft from agreed area of 81.56 sq ft and thus in view of the substantial reduction of almost 44% area, the shop in question is of no use to the appellant, whereas respondent is charging the cost of entire allotted area. It is further relevant to state that in view of reduction of carpet area, the Super Built up area of 163 sq ft also accordingly reduces which factum too not considered by the RERA Authority.
(E) Learned RERA authority ought to have passed orders holding unfair trade practice and fraud/cheating on the part of the respondent and ought to have passed directions granting relief to the appellant with refund of the deposited amount with interest from respective date of deposits and till the date of refund.
(F) Learned Forum further observed that Spot Inspector report dated 10.03.2022 is perused and development work is done and in view of these observations further erred in holding that in case direction is passed for refund of the deposited amount of the appellant, the same will adversely affect the construction work of the project. Thus learned RERA authority had made contradictory observations.
(G) Learned RERA Authority failed to consider that there was delay in constructing the Project, and even respondent to do not have Completion Certificate of the entire Project yet.
(H) Learned RERA Authority further erred in passing certain directions under paras Ga to Da of impugned judgment which are beyond th reliefs claimed by the appellant.
(I) Learned RERA Authority failed to consider that there is no shortcoming on the part of the appellant who has paid substantial amount as agreed upon in terms of Flexi payment plan of allotment terms amounting to Rs.19,50,478.00 in time and balance was only payable at the time of possession. Thus demand made by respondent in view of unilateral reduction in area of Shop cannot be acceded to by the appellant and even not payable which has not been considered in the impugned judgment.
4. The appellant has prayed for setting aside the impugned order dated 16.06.2022 passed by the Regulatory Authority in Complaint No. NCR144/10/84299/2021, and further to allow the Complaint case of the appellant by directing the respondent to refund the entire deposited amount to appellant with interest from the respective date of deposits made and till the date of refund.
5. The respondent filed his objection to the memo of appeal and submitted that the respondent began construction of the commercial project “Galaxy Diamand Plaza at commercial plot no. C-1A, Sector 4, Greater Noida (West), U.P. and had pre-requisite sanctions etc. for construction of the same, the project is RERA registered and has also been sanctioned by the Greator Noida Industrial Development Authority through a sanctioned plan. The appellant was an allottee in the Project who booked the commercial space Unit No.FA-109, 1st Floor under Flexi Payment Plan. An allotment letter (agreement) was executed between the complainant and respondent on 05.07.2016.
5.1 The appellant in contravention of her duties imposed by RERA defaulted in timely payment of the demanded amount of purchase of the unit as per Clause No.8 and 11 of the Allotment Letter dated 05.07.2016. There were interest overdue charges of INR 2,16,000/- for the delay in payment of demands raised on the appellant complainant.
5.2 As per the allotment letter (agreement) the due date of the project was within 36 months + Fit out Period of 45 days from the date of ‘Sanction plan’ dated 07.06.2016 plus a grace period of 6 months for the delay in handing over the possession from the agreed date. The respondent had not delayed by even a single day as the agreed date came out on 22.01.2020 and after inspecting that the project was developed and constructed according to the sanction plan, Occupancy Certificate was received on 17.07.2019 and Offer of Possession letter was given within reasonable time on 10.09.2019 to the complainant. It is submitted that any delay caused by the competent authority in delivering the OC cannot be attributed to the respondent under any circumstance.
5.3 The appellant refused to take possession of the said unit. On continuous nonpayment on the part of the appellant and the resultant breach and default, reminders were made before the cancellation letter dated 28.07.2020, which was even not accepted and was served to the appellant in accordance with Clause 11 of the terms and conditions of the Agreement. The appellant had only paid Rs.19,50,487/- out of the total sales consideration even after several demands and reminders being made to her. The appellant has conducted in sheer violation of the provisions of Section 19(10) of the RERA Act, 2016. After the order of the RERA Authority, the Unit was reinstated to the appellant and a valid and lawful demand as per the terms of the impugned order was raised.
6. In reply to the objection of the respondent, the appellant has filed the reply denying the averments made by the respondent and reiterating the averments made in the memo of appeal.
7. Heard Sri Rajesh Chaddha, learned counsel for the appellant and Ms Arpita Khandelwal, holding brief of Sri Harshit Batra, learned counsel for respondent.
8. On examination of the pleadings on record as well as submissions of learned counsel for parties, the admitted position is that the appellant in the upcoming Project of respondent “Galaxy Diamond Plaza” at commercial plot no. C-1A, Sector-4, Greater Noida (West), U.P. vide allotment letter dated 05.07.2016, was allotted commercial space Unit no. FA-109, 1st Floor under Flexi Payment Plan consisting of Super Built-up Area : 163.00 Sq.Ft.(15.143 Sq.Mtr), Polyline Area i.e. the R.C.C. Slab area of the shop/commercial space 81.56 sq ft (7.577 sq mtr) approx, Common Area with shop/commercial space: 81.44 sq ft.(7.56 sq.mtr) approx. on the sale consideration of Rs 24,32,775/- and possession was likely to be given within 36 months from the date of sanction of plans + FitOut Period of 45 days from the date sanction plan and as per submission of the respondent, the plan of the project in question was sanctioned by the competent authority on 07.06.2016.
8.1 Clause 19 of the allotment letter further provides that in case of delay in handing over possession of the shop/commercial space beyond six months from the proposed date of possession due to any reason which were within the control of the company, the company will pay to the allottee the delay possession charges @ Rs 20/- per. sq. ft per month for the super built-up area of the shop/commercial space for the delay period (commencing after six months from the proposed date of possession), provided all the due installments from the concerned allottee (s) were received in time. Vice-versa the penalty of Rs 20/- per. sq. ft on delay in taking possession shall also be applicable over the allottee(s) and payable by the allottee(s), if the allottee does not proceeds with the requisite compliance as per the letter of “Offer of Possession”. The respondent further stated that the agreed date as per allotment comes to 22.01.2020 and thus there is no delay. Further, after inspection of the project by the competent authority, occupancy certificate received by the respondent on 17.07.2019. The offer of possession was given to the complainant on 10.09.2019. The appellant did not took possession and the respondent on account of non-payment of dues followed by reminders cancelled the allotment of the appellant on 28.07.2020.
8.2 The appellant approached the Regulatory Authority by means of complaint on 28.10.2021 seeking refund on the ground of delay in handing over of possession of unit (delay duration 28 months) and deviation from sanctioned plan alleging that the builder has reduced this size of the shop without intimation and under the headings of other facts at serial no. 2, the appellant mentioned about the malicious cancellation of allotment vide letter dated 28.07.2020 and offer of possession was issued without getting OC/CC. The Regulatory Authority framed following three issues:-
(i) Whether the promoter is responsible for delay in project due to force majeure
(ii) Whether the complainant is entitled to get deposited amount
(iii)Whether the complainant is entitled for the interest for delayed period
8.3 While examining the issues, the Regulatory Authority has decided issue no. (i) against the respondent holding therein that the project was delayed. On the issue of refund i.e. issue no. (ii), while observing that the construction has been completed as per plan and offer of possession has already been given, rejected the claim of the complainant/allottee with the observation that in the condition of allottee being continued with the project, he is entitled for interest as per rules. The issue of delayed interest has been decided against the respondent while holding that the complainant is entitled for delayed interest in giving possession and finally directed the respondent to provide possession of the allotted unit by July 2022 along with OC/CC. The respondent was further directed to pay interest from 19.08.2019 to receipt of OC/CC or offer of possession @ MCLR+1% whichever is later. The complainant as well respondent were restrained from claiming any interest with effect from 25.03.2020 to 25.09.2020 on account of force majeure (Covid-19 Pandemic) and in case respondent failed to provide possession by July 2020 then after expiry of the said period i.e. July 2020 the respondent will return the entire deposited amount within 45 days along with interest @ MCLR+1% per annum from the date of payment.
8.4 The complainant/appellant, being dissatisfied with the impugned order dated 16.06.2020 approached this Tribunal raising various grounds but during the course of arguments learned counsel for the appellant pressed only ground (B) & (E) and prayed for setting aside the order of the Regulatory Authority passed in the complaint of the appellant and while allowing the complaint to direct the respondent to refund the entire amount deposited with interest from the retrospective date of deposit till the date of refund and also to award cost in favour of appellant and against the respondent.
8.5 During the course of hearing, learned counsel for the appellant Sri Rajesh Chadha submitted that issue of force majeure was not part of pleading and the issue of change of size without the consent was not examined by the Regulatory Authority which is in violation of clause 12 of the allotment letter.
8.6 Learned counsel for the respondent in her submission submitted that offer of possession was given vide letter dated 10.09.2019 and there is no change in the size of the booked unit and appellant has failed to examine the provisions of the allotment letter wherein it has been specifically provided that super built-up area is a constructed area of the shop/commercial space comprised of the polyline area of the constructed area of the common use and the ployline area has been defined as all constructed area of Shop/Commercial Space of with or without roof (covered or landscaped) to include beams walls, columns, usable shafts, including balconies and terraces. Common area and facilities means all facilities to be used by all Shops/Commercial Spaces, such as entrance lobbies, corridors, staircases, staircase shafts and mumties, lobbies, lifts, lift lobbies, shafts and machine rooms, all service shafts, fire escapes, all underground and overhead tanks, electricity distribution system, control panels, installation area of transformer and DG set, water supply system, fire fighting system, sewerage systems, common toilets, rain water harvesting etc.
8.7 Learned counsel for the respondent further submitted that the common area with shop/commercial space has been mentioned in the allotment letter as 81.44 sq. ft (7.565 sq. mtr) approx and in the letter of offer of possession dated 10.09.2019 vide annexure under the heading “Statement of Account” the carpet area of the shop no. FA-109 has been mentioned 52.42 Sq.ft. (4.870 Sq. Mtr.) and the super built-up area 163.00 Sq.Ft.(15.143 Sq.Mtr). Apparently appellant is confused with respect to mentioning of carpet area whereas in allotment letter, the area 81.44 sq. ft (7.565 sq. mtr) approx is inclusive of common area with shop/commercial space.
8.8 Further, it is a also emphasized by the learned counsel for the respondent that in compliance of the impugned order dated 16.06.2022, a letter dated 22.06.2022 was issued asking the appellant to complete the formality of execution of tripartite sub-lease deed etc. and also informed the amount due after adjusting the amount of Rs 9,640/- towards the interest of the delayed period i.e. from 19.08.2019 to 10.09.2019 (offer of possession or occupancy certificate whichever is later).
8.9 Learned counsel for respondent further submitted that the allotment letter dated 05.07.2016 was executed between the parties willfully and without any force from either side and in the allotment letter, at Page No.2, the super built-area has been mentioned as 163 Sq. ft. which is same as mentioned in the application form of the appellant dated 23.02.2016. She further submitted that Agreement for Sale/Lease Rules, 2018 were notified on 12.10.2018 and as per clause 1.7 of the same a promoter is required to confirm to the final carpet area that has been allotted to the allottee after construction of the building is complete and completion certificate/occupancy certificate is granted by the competent authority. Therefore, taking into consideration clause 1.7 of the notification 12.10.2018, in the offer of possession dated 10.09.2019, the carpet area of the shop/commercial space has been mentioned as 52.42 Sq. Ft. with 163.00 Sq. Ft. as Super Built-Up Area.
8.10 Learned counsel for the respondent relied upon relevant clauses 8, 11, 12 & 19 of the allotment letter dated 05.07.2016 which are as under:-
Clause 8:- The schedule of payment/installment is duly explained to the intending allottee(s) and is also mentioned herein the allotment letter. The payment on time shall be the responsibility of the intending allottee(s). Any separate demand letter for the installment falling due may not be sent by the company and that shall neither be claimed as a right by the intending allottee(s) not duty/obligation towards the company.
Clause 11:- The installments towards payments of the shop/commercial space will become due at the intervals as per prescribed payment plan mentioned in the allotment letter and opted in the application form. In case payment is not received within stipulated period or in the event of breach of any of the terms and conditions of the allotment by the allottee, the allotment will be cancelled and 10% of the basic cost of the shop/commercial space will be forfeited and balance amount will be refunded without interest. Although timely payment is the main essence of the allotment, however in exceptional circumstances, the builder may, in its sole discretion condone the delay in payment by charging interest @18% per annum. In the event of the building waiving the right of forfeiture an accepting the payment on that account, no right whatsoever, would accrue to any other defaulter/intending allottee. In the eventuality of a prolonged dela y where the cancellation could not be made by an omission or any other reason, in exceptional circumstances the company may in its sole discretion condone the delay in receipts of payment by enhancing the cost of the shop/commercial space (as per the prevailing rates) or charge interest @18 percent per annum.
Clause 12:- In case of any alteration/modification as the company may deem fit or as directed by any competent authority (ies) resulting in upto 2% change increase/decrease in the super built-up area of the commercial unit, the consent for the said change is not required from the applicant as the consent is deemed to be there and the company will neither charge additional amount nor make any refund to the applicant for such 2% increase or decrease respectively in the super Built-up area of the commercial unit.
However, if there is any major alteration/modification resulting in more than 2% change in super built up area of commercial unit in the commercial complex, anytime prior to and upon the offer of possession of the commercial unit in the commercial complex, the Company will intimate to the applicant/allottee in writing about the said changes thereof and the change in the cost. The applicant/allottee shall have to give his/her/their written consent or objection within 30 days from date of such notice about the changed cost and no changes whatsoever in the construction place will be made/entertained by the company.
In case the applicant/allottee fails to give his/her/their written consent and/or objections for such change, then the booking/allotment shall be cancelled and the company shall refund the money received from the applicant/allottee after forfeiting the 10% of Basic Sale Price and PLC and the balance amount shall be refunded without any interest. In case the applicant/allottee give his/her/their written consent, then the enhanced cost would be payable by him/her/them within a period of 30 days from the date of written consent sent by the applicant/allottee. It shall always be clear that any alteration/modification resulting in more than + 2% change in the super built up area of the shop/commercial space, then the demand or refund shall be applicable for the entire area e.g.: for the area increased/decreased over the initial offered area.
Clause 19:- If there is delay in handing over the possession of shop/commercial space beyond 6 months from the proposed agreed date of possession due to any reason (s) which were within the control of the company, then the company will pay to the allottee (s) delayed possession charges @ Rs. 20/- per sq. ft. per month for the super built-up area of the shop/commercial space for the delayed period (commencing after 6 months from the proposed date of possession), provided that all due installments from the concerned allottee (s) were received in time. Vice-versa the penalty of Rs. 20/- per sq. ft on delay in taking of possession shall also be applicable over the allottee(s) and payable by the allottee(s), if the allottee(s) does not proceeds with the requisite compliance as per the letter of “offer of possession”. The holding/waiting period where the allottee has not taken the possession will be computed from the date of letter vij “offer of possession” & the holding and wait period shall have a maximum limit of 3 months, thereafter the said allotment shall be treated as cancelled and no other claim except to refund of amount without any interest and after deducting the said charges for holding/waiting along with the maintenance dues and deduction of 10% from the basic cost of shop/commercial space shall also be applicable as per the terms and conditions of the company. That in all the case of refund where a loan was availed for the said unit in shop/commercial space, the loan dues will be refunded to the bank/financial institution first thereafter the balance amount (if any) will be refunded to the allottee(s).
8.11 At the end, learned counsel for the respondent submits that there is no illegality or perversity in the impugned order dated 16.06.2022 and the appeal of the applicant deserves to be dismissed.
9. On the basis of pleadings and submissions of learned counsels for the parties we frame the following issue in order to examine the controversy involved in the instant appeal:-
Whether taking into consideration the allegation of the complainant/appellant with respect to reduction of the size of the shop without intimation by the builder, the Regulatory Authority was required to frame, examine and decide the question with respect to allegation of the complainant/appellant in reduction of area of shop/commercial space in question
10. As per the pleadings, the complainant/appellant booked a Commercial Unit being shop No.FA-109 (herein after referred to as ‘shop’) under Flexi payment plan in the Commercial Complex Project “GALAXY DIAMOND PLAZA’ situate at Plot No./C-1A, Greater Noida (West), District Gautam Budh Nagar of the promoter/respondent by making a payment of Rs.2,72,470/- as booking amount vide Cheques on 23rd February, 2016.
10.1 In pursuance of the booking, respondent allotted shop vide Allotment letter dated 5th July, 2016, having Super Built Up Area of 163 sq ft (15.14 sq mtr); comprising Polyline Area i.e. the RCC Slab area of the shop space is 81.56 sq ft (7.577 sq mtr); and common area 81.44 Sq ft (7.56 sq mtr) under the Flexi Payment Plan enclosed with the allotment letter. Thus the appellant had to pay total sum of Rs.24,32,775/- under the said payment plan. 25% of the amount of Rs.6,08,193/- was payable at the time of offer of possession. The allotment letter further stipulates that construction of the project was to be completed within a period of 36 months i.e. by 5th July, 2019 and possession of the allotted shop was to be delivered by the respondent to the appellant accordingly within the said period pursuant to having the OC/CC of the project from the competent authorities.
10.2 The appellant as per her obligation has paid an amount of Rs.19,50,478/- out of the total sale consideration, as agreed upon. The respondent had to deliver the possession of the allotted shop in a stipulated period of 36 months, having carpet area of the Shop of 81.56 sq ft i.e.7.57 sq mtr but respondent delayed in raising the construction and consequently delivering possession of the allotted shop despite appellant had paid required agreed amount as per terms of Flexi payment plan.
10.3 The respondent vide offer of possession letter with Statement of Account dated 10.09.2019 offered possession with delay. In the statement of account, Carpet Area of shop was mentioned as 52.42 sq ft (4.87 sq metr), and the respondent also demanded various amounts under various heads which entirely were not agreed upon nor even payable by the appellant and were beyond the terms of the allotment and payment plan schedule. Only charges which are payable as per Flexi Payment Plan are IFMS, One Time lease rent, Sinking Fund, Power Back up and Electric meter charges and no other charges were payable by the appellant as asked vide Statement of Account.
10.4 After receiving the above offer of possession letter from respondent, appellant along with her husband and family visited the Project of the respondent and was shocked to see that the respondent had reduced the area of the shop substantially, as admitted in the Statement of Account annexed with offer of possession letter. The respondent had agreed to deliver the shop consisting of Super Built up area of 163 sq ft comprising of area of shop space of 81.56 sq ft (which is now reduced to 52.42 sq ft i.e. 4.870 sq mtr) with Common area of 81.44 sq ft. Thus there is unilateral reduction of area of the allotted shop and the respondent is demanding illegal amount of the same. Similarly in view of the reduction of carpet area of shop (which is for the first time disclosed in the statement of account and never before by the respondent), the Super built up area too is liable to be reduced proportionately which will come to 123.88 sq ft instead of 163 sq ft. Accordingly appellant and her husband met the officials of the respondents and informed about the said reduction of area and in view of substantial reduction, now the shop carpet area has become so small which is not worth anymore. The respondent had to deliver the area of shop consisting of 81.56 sq ft as promised to be delivered. It is further submitted by the appellant that the architects of the respondent too acknowledged that the Super-Built Up area of the Unit has been reduced to 123.88 sq ft as opposed to the promised area of 163 sq ft mentioned in the allotment letter. The carpet area of the allotment unit was also reduced by the respondent.
10.5 Aggrieved by the action of the respondent, the appellant filed Complaint No. NCR144/10/84299/2021 “Kamlesh Bhardwaj Vs. Asteroid Shelters Homes Pvt Ltd.” submitting that the builder has delayed in handing over the possession of the allotted shop and further reduced area/size of the shop substantially and thus sought refund of the amount with interest.
10.6 The main grievance of the complainant/appellant was with respect of reduction in the area of the booked unit (shop/commercial space) and on this ground as well as on the ground of delay in possession, the complainant/appellant filed the complaint before the Regulatory Authority praying for the refund of the entire deposited amount.
10.7 Though appellant has placed on record report of a Valuers dated 01.07.2022 along with rejoinder filed on 20.08.2023. In order to demonstrate the area wherein at column No. 17, area of the property- Polyline/Built up Area of Shop has been mentioned as 3.096*1.931 = 5.98 Sq.M. Or 5.98*10 .764 = 64.37 Sq.Ft. and Carpet Area: 2.7 45*1.596= 4.38 Sq. M. Or 4.38* 10.764= 47.L5 Sq.ft. Whereas in the offer of possession, the carpet area has been mentioned as 52.42 Sq. ft. (4.870 Sq. Mtr) and apparently the said Valuers has not taken into consideration the common area with the shop/commercial space along with polyline area i.e. RCC slab area of the shop/commercial space mentioned in the allotment letter and has also not mentioned about super built-up area.
10.8 Learned counsel for the respondent in her submission submitted that offer of possession was given vide letter dated 10.09.2019 before the date of possession as per allotment letter with grace period i.e. 22.01.2020 and there is no change in the size of the booked unit and appellant has failed to examine the provisions of the allotment letter wherein it has been specifically provided that super builtup area is a constructed area of the shop/commercial space comprised of the polyline area of the constructed area of the common use and the ployline area has been defined as all constructed area of Shop/Commercial Space of with or without roof (covered or landscaped) to include beams walls, columns, usable shafts, including balconies and terraces. Common area and facilities means all facilities to be used by all Shops/Commercial Spaces, such as entrance lobbies, corridors, staircases, staircase shafts and mumties, lobbies, lifts, lift lobbies, shafts and machine rooms, all service shafts, fire escapes, all underground and overhead tanks, electricity distribution system, control panels, installation area of transformer and DG set, water supply system, fire fighting system, sewerage systems, common toilets, rain water harvesting etc.
10.9 We have examined the submissions of the learned counsels of the parties and gone through the record. The appellant by means of complaint dated 28.10.2021 approached the Regulatory Authority seeking refund on the ground of delay in handing over of the possession of the unit and deviation from sanctioned plan – reduction of the size of the shop/commercial space substantially by the builder without intimation. The learned Regulatory Authority framed three issues namely: (a) Delay in project due to force majeure (b) Complainant’s entitlement to seek refund of the deposited amount and (c) The entitlement of the complainant with respect to interest for delayed period.
10.10 The main grievance of the appellant before the Regulatory Authority was reduction of the size of the shop/commercial space without intimation and in our considered view the Regulatory Authority was required to examine the grievance of the complainant/appellant by framing a specific issue on the basis of the pleadings on record. The instant case also warranted to get the dimensions of the shop inspected and measured by a technical team of RERA and thereafter issue was required to be decided after taking into consideration the area mentioned in the allotment letter and the carpet area shown in the offer of possession 10.09.2019 as the provisions of Section 14 of the Act 2016 mandates the promoter to strictly adhere to the sanctioned plans as well as to the project specifications including removal/rectification of defects in the workmanship, quality or provision of services or any other obligation of the promoter as per agreement to sale. As per page-2 of allotment letter, the construction was likely to be completed within 36 months + fit out period of 45 days from the date of sanctioned plan (07.06.2016) + 6 months grace period for delay in handing over the possession from agreed date as per Clause-19 of allotment letter. The date of possession as per allotment letter was 20.01.2020 along with grace period. Completion certificate was obtained on 17.07.2019 and offer of possession was given on 17.09.2019, before the due date of possession i.e. 22.01.2020. Apparently there was no delay in completion of the project, therefore, there was no occasion to frame the force majeure issue.
10.11 Learned counsel for the appellant, during the course of hearing also pointed out that the issue of force majeure was framed by the Regulatory Authority without there being any pleading and the issue of change of size without the consent of the appellant was not examined by the Regulatory Authority, the same was also in violation of the provisions of section 12 of the Act 2016.
10.12 We have examined the provisions related to area of unit defined under the Act of 2016, in U.P. Real Estate (Regulation and Development) Rules 2016 and in the Agreement for Sale/Lease Rules 2018. The Act of 2016 defined the carpet area under Section 2 (k) as below:-
2 (k) “Carpet Area” means the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the areas covered by the internal partition walls of the apartment..
Explanation. – For the purpose of this clause, the expression “exclusive balcony or verandah area” means the area of the balcony or verandah, as the case may be, which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee; and “exclusive open terrace area” means the area of open terrace which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee.
10.13 The term built-up area and super built-up area have not been defined in the Act of 2016. However, the “Common area” has been defined under Section 2 (d) of the U.P. Real Estate (Regulation and Development) Rules 2016, which reads as under:-
2 (d) “common area” mean:-
(i) the entire land for the real estate project or where the project is developed in phases and registration under this Act is sought for a phase, the entire land for that phase;
(ii) the stair cases, lifts, staircase and lift lobbies, fire escapes, and common entrances and exits of buildings;
(iii) the common basements, terraces, parks, play ground, open parking areas and common storage spaces;
(iv) the premises for the lodging of persons employed for the management of the property including accommodation for watch and ward staff or for the lodging of community service personnel;
(v) installations of central services such as electricity, gas, water and sanitation, air-conditioning and incinerating system for water conservation and renewal energy;
(vi) the water tanks, sumps, motors, fans, compressors, ducts and all apparatus connected with installations for common use;
(vii) all community and commercial facilities as provided in the real estate project;
Explanation – Community and commercial facilities shall include only those facilities which have been provided as common areas in the real estate project.
(viii) all other portion of the project necessary or convenient for its maintenance, safety, etc, and in common use.
10.14 Before commencement of Act of 2016, builders were commonly using the term “super area” and “built-up area” or “polyline area”. Super area included the ‘carpet area’ and proportionate share of the ‘common area’ allocated to the unit of respective allottee. Built-up area or polyline area is the area which includes constructed area of the unit i.e. covered area + walls, columns, beams etc.
10.15 As per condition no. 4 of application form for booking, the builder has defined super built-up area as under:-
“That the consideration is for the “Super Built-Up Area”. The Super builtup area comprises of the polyline (P Line) area of the Commercial Complex (i.e the area of R.C.C. slab of said Commercial Complex including walls, columns, beams, usable shaft including terraces with or without roof. The outer walls which are shared with another unit shall be computed at 50%, remaining outer walls shall be be computed at 100%) and the proportionate common area of the commercial complex project (i.e. the area/core area comprises of corridors, lifts, stairs case, escalators, entrance lobby, overhead water tanks, machine rooms, mumties, garbage room projections, etc) and the proportionate common area of the project which includes, security rooms, maintenance room, common toilets, generator room, electrical room, service area, underground water tank, pump room, sewage treatment plant (STP) and other constructed common areas which are not separately charged. The Company can sell the vacant Commercial Unit in Commercial Complex project or the complete block of the Commercial Complex units as a whole or in part to one or more person (s)/company (ies/institution (s) whosoever and the applicant (s) shall have no objection to the same.
10.16 As per allotment letter dated 05.07.20016, the builder has defined super built-up area and polyline area as under:-
“b. Super Built-up area:- The constructed areas of the shop/commercial space comprising of Poly line area of the Shop/Commercial Space and other constructed areas of common use.
c. Poly Line Area:- All constructed area of Shop/Commercial Space with or without roof (covered or landscaped) including walls, columns, beams, balconies and useable shafts.”
10.17 Section 14 (2) (i) of the Act reads as:-
(2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and nature of the fixtures, fitting, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter shall not make
(i) any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person:
Provided that the promoter may make such minor additions or alternations as may be required by the allottee, or such minor changes as may be necessary due to architectural and structural reasons duly recommended and verified by an authorized Architect or Engineer after proper declaration and intimation to the allottee.
10.18 Further clause 1.7 of the Agreement for Sale/Lease Rules, 2018 reads as under:
“The Promoter shall confirm to the final carpet area that has been allotted to the Allottee after the construction of the Building is complete and the completion certificate/occupancy certificate (as applicable) is granted by the competent authority, by furnishing details of the changes, if any, in the carpet area. The total price payable for the carpet area shall be recalculated upon confirmation by the Promoter. If there is reduction in the carpet area then the Promoter shall refund the excess money paid by Allottee within forty-five days with annual interest at the rate prescribed in the Rules, from the date when such an excess amount was paid by the Allottee. If there is any increase in the carpet area, which is not more than three percent of the carpet area of the apartment, allotted to Allottee, the Promoter may demand that from the Allottee as per the next milestone of the Payment Plan as provided in Schedule C. All these monetary adjustments shall be made at the same rate per square meter/square foot as agreed in para 1.2 of this Agreement”.
10.19 The respondent has agreed for joint inspection/measurement and submitted in its objections at Page No. 41 that it is also necessary to submit that if the change in the super built-up area or carpet area comes after the joint measurement, the respondent shall reimburse the same to the complainant subject to the conditions of payment of balance dues and purchase the unit.
10.20 In view of the aforesaid analysis we are of the considered view that the allegation of reduction of the size of the booked unit (shop/commercial space) of the appellant was required to be examined by framing a specific issue and the Regulatory Authority has defaulted in its duties by not framing the issue in pursuance to the grievances raised by the complainant/appellant, the issue is answered accordingly.
11. As the Regulatory Authority failed to examine the issue with respect to the reduction in size of the booked unit (shop/commercial space), therefore, the order dated 16.06.2022 passed by Regulatory Authority in complaint No. NCR 144/10/84299/2021 is not sustainable and the same is set aside. The Appeal is partly allowed.
12. The matter is remanded back with direction to the Regulatory Authority to examine the complaint of the appellant with respect to reduction of the area of the booked unit (shop/commercial space) after framing a specific issue and decide the same expeditiously, within a period of one month from the date of receipt of copy of this order after giving opportunity of hearing to both the parties.
13. Both the parties are directed to appear before the concerned Bench of U.P. RERA on 03.10.2023.
14. The Registrar of this Tribunal is directed to communicate this order to the Secretary of U.P. RERA for being placed before the concerned Bench on the date fixed.
15. There will be no orders as to cost.
