E.J. Bellie, President

1. The complainant is an Association known as Nithya Apartment Flat Owners' Welfare Association. The members of the Association individually entered into building agreements with the opposite party-builders in November, 1987. For each of the members the opposite party had to build flats at No. 1, Dr. Thomas Road, Thiyagaraya Nagar. The terms in the agreements were similar except for the area of the flat and the floor in which the flat would situate. The rate agreed upon for construction was Rs. 260/- per sq. ft. The complainants have paid the amounts as per the terms of the agreement. The opposite parties agreed to complete the construction within 18 months from the registration of sale of land which was in July-August, 1988. The opposite party agreed to pay penal charges of Re. 0.50 per sq. ft. per month if the completion of construction is delayed. The opposite party delayed the completion of construction even though the work was started in time. According to the complainant the opposite parties demanded to increase the rate for per sq. ft. at Rs. 10/- stating that the cost of construction has escalated. The complainants with their anxiety to get the flats without delay agreed to the same. It is further according to the complainants that the quality of construction was poor. The opposite party then made additional demands of Sales Tax, M.M.D.A., developmental charges, electricity connection charges and water and drainage charges. With the amount paid towards these, the total additional payment was Rs. 15/- per sq. ft.

2. The complainants further plead that the land agreed to be sold was 3 grounds and 2311 sq. ft. but actually the opposite party had conveyed only 3 grounds and 2197 sq. ft. This is a clear violation of the agreement. Further the opposite party agreed to build only 29 Hats, but the fact is he has built one extra flat and that is a violation of the sanction plan of the M.M.D.A. They have made an excess payment of Rs. 8/64,261/-, The opposite party is liable to return this amount. On these allegations the complainants have claimed various amounts under different heads all totalling to Rs. 8,64,261/-.

3. The opposite party-Company in their written version contended that there was no deficit in the area of the land conveyed as alleged in fact the flats have been constructed on an area of 4 grounds and odd. A delay occurred in signing the agreement and by that time the cost of construction had increased and therefore it is wholly unreasonable for the complainant to insist upon the construction of the flat at the rate of Rs. 260/- per sq. ft. The opposite party did not resort to any pressure tactics as alleged. It is the further case of the opposite party that there was nothing sub-stranded in the work. The complainants were to pay other amounts such as deposits, developmental charges, expenses for securing electricity connection, water supply and sewerage connection and sales tax besides other taxes levied by the Central and State Government and the complainant has agreed to reimuburse the said amounts to the opposite party. The complainants were irregular in making payments of the cost of construction and therefore the opposite party cannot be blamed for any delay in the construction. Even as per the agreement the complainants have agreed for personal construction of 30th flat in the ground floor and for the opposite party to retain it for his personal occupation. It is denied that the complainants have been charged for 22398 sq. ft. The super built up area which has been put up exceeds the area agreed to be constructed and accordingly there is no question of any excess payment by me complainant. The complainants have taken possession of the flats after fully being satisfied about the construction and after having delivered full satisfaction letter. Apart from the complainant, there are others also in the building occupying flats and there has been no complaints from them. The complainants cannot maintain action on behalf those others also. Therefore the complaint is liable to be dismissed.

4. The complainants have filed a reply statement mostly denying the averments made in the written version.

5. The point that has to be considered is whether there was any deficiency in service on the part of the opposite parties and if so, what reliefs can be granted to the complainants.

6. Point : The building agreement is between each of the flat owners and the opposite party and as per the agreement flat of a specific area has to be constructed. Now some of the people who have entered into such agreements formed themselves into an association and they filed the complaint through the association. Their first complaint appears to be that the total area of land which was agreed to be conveyed was 3 grounds and 2311 sq. ft. But actual the land conveyed is only 3 grounds and 2197 sq. ft. i.e., with a deficit of 114 sq. ft. But this is denied by the opposite parties and it is contended that the actually area conveyed is 4 grounds and odd. As regards this the complainants have not let in any evidence and on the other hand a report of an Engineer by name Srinivasan who was appointed Commissioner of this Court was filed and the Engineer has stated in his report that the flat area comes to 4 grounds and 235 sq. ft. and this clearly supports the case of the opposite party. Hence there is no merit in the case of the complainant that the opposite party had conveyed lesser area with a deficit of 114 sq. ft. than the area agreed to be conveyed.

7. The next plea of the complainant is that the total plinth area assured to the complainant is 22398 sq. ft. but the total plinth area occupied is 20980 sq. ft. and that there was a deficit of 1480 sq. ft. But it must be remembered that the agreements have been executed by each of the flat owners and admittedly the plinth area differs from agreement to agreement and it is not stated in the complaint how much was the deficit in the plinth area with regard to each of the agreements. The opposite parties denied that there was any such deficit. It is not in dispute that besides the members of the complainants' association there are other flat owners also who have not made any complaint. In these circumstances there is no merit in this plea of the complainant association. Nothing about any parking area in the complaint has been mentioned and for the first time in the statement filed in reply to the written version filed by the opposite party something about the parking area has been mentioned. In the builders' agreement there is no reference to any parking area at all. Hence no question of restoration of any parking area as claimed by the complainants arise.

8. The next claim of the complainants is that the opposite parties have claimed extra amount per sqft. and that amount shall be refunded. It is pleaded that as per the agreement the complainants are liable to pay Rs. 260/- per sq. ft. and therefore the excess amount collected has pot to be refunded. The contention of the opposite party appears to be that the complainants themselves because of the escalation in the cost of construction agreed to increase the rate and they have paid that amount/and that being the case there is no point in claiming back the amount. We find no justification in the complainants claim and and there is merit in the opposite party's contention. Further in a letter dated 21.1.1988 from the complainants to the opposite parties they have clearly stated that it was mutually agreed to escalate the cost from Rs. 260/- per sq. ft. to Rs. 270/- per sq. ft. There is no gain saying that the complainants have voluntarily paid the escalation charges and there is absolutely no evidence that there was any compulsion for such payment. Therefore there is no substance in the case of the complainant that the opposite parties have collected more amount per sq. ft. than the amount mentioned in the agreement. Hence no question of any refund of the amount collected from the complainant arises at all.

9. Then there is a claim for refund of an amount of Rs. 3,94,119/- for the reason that the construction was sub-standard. But the Engineer's report referred to above is silent about any substandard work in the construction. It is not stated in the complaint as to how and on what

basis the sum of Rs. 3,94,119/- is claimed for substandard work. Here it must be remembered that it is the definite case of the opposite parties that the complainants have taken delivery of the possession of the flat after giving full satisfaction letter and this has not been denied by the complainants. Therefore no question of payment of any amount arises in respect of the alleged substandard construction. 10. It is also claimed a sum of Rs. 4,800/- as amount payable in lieu of non-construction of compound wall in southern side. The agreement is totally silent about any such compound wall. Hence this claim is devoid of any merit. 11.Thusconsideringweare of the view that the complainants failed to prove any deficiency on the part of the opposite parties. 12. In this view of the matter, the complaint is dismissed. However, there will be no order as to costs. Complaint dismissed.