Comment on When does the conditional transfer fail? by Vijay Malhotra.

We had booked two 3 BHK flats with a builder who had contracted the super built up area to be 1350 sq.ft. of each. On the day of booking the towers were 3-4 stories already up. For two years all the payments whenever demanded were paid on time through cheques/drafts. All the receipts mentioned the said area as 1350 till 95% of the payments were made. With the letter of offer of possession for the first time it said the super built up area has become 1484 sq.ft. on measurement and additional amounts were demanded and paid and protested. Telephonic inquiries from the marketing staff which had mentioned at the time of booking that super area can not change since towers area already under construction, did not give any reply at all. Later builder initially said he will check with project officer how area has increased, then said all other buyers have been charged in the same way, then said the word approx. was prefixed to the 1350 fig in the agreement, then that vide a clause in agreement we had authorised him to increase the area, when told that the said provision could be applicable only on change of the layout plans he said the plans had been changed but on asking photocopies of original and changed plan he maintained that you come and see those in office, a RTI query revealed that plans were approved by approving authority only once, a company manager in meeting confirmed no plans had been changed, then it says that at the time of booking plans shown were tentative and could be changed all through the construction, one being told that that was illegal practice and construction too was illegal, he maintains that some fine tuning of the area has been done hence increase, then he further says that the salable area is 1484 and flat of 1484 area has been sold to us, we told it that sale is not there and there is no such mention of salable area in agreement the only term there is super built up area. In pursuance of letter of offer of possession we went twice after due fixing of date & time of our visit, it failed to hand over the physical possession. He is threatening and time and again putting pressure on us to take physical possession. Sale deed of one flat had been done but the physical possession was not given. Our stand is that the entire deal is within the ambit of fraud and cheating and we would not like to be part of it and we can take possession only when the paper work indicates super area as 1350 sq.ft. only or the company retains the flats and returns our amounts spent with interest as provided in the agreement. Booking date was 27.1.2011.
Please advise if it would be proper to file a complaint with the police authorities for fraud and cheating.
Please advise if it would be proper to file a case in the consumer court/since builder has blatantly violated the provisions of the agreement and embarked on giving false and misleading explanations/pleas the agreement has become defunct and he cannot force us to take physical possession.
OR what should be the best course to go about. We are no desirous to have those flats as it would involve us in fraud and that can come in the way whenever we may wish to dispose those off.
Best Wishes and thanks for your time.

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