Have you been cheated out of a big­ger flat?

If you get a smaller apart­ment af­ter pay­ing the de­vel­oper for a big­ger one, he is li­able to re­fund the ex­cess amount to you

HT Estates - - HTESTATES - Su­nil Tyagi

As per the pre­vail­ing mar­ket prac­tice in the real es­tate sec­tor, res­i­den­tial flat/apart­ments are sold on the ba­sis of built- up area ( BUA). Con­sid­er­a­tion to­wards the apart­ment/flat/house is payable to the builder based on the area of such apart­ment/flat/ house. At the time of book­ing/ al­lot­ment, the area of apart­ment of­fered by the builder is usu­ally based on the ex­ist­ing build­ing plans. How­ever, sub­se­quently due to cer­tain changes in build­ing plans, nec­es­sary struc­tural changes or for other rea­sons, the ac­tual area handed over to the buyer may dif­fer from the area promised to him in the buyer’s agree­ment.

As a com­mon prac­tice, the buyer’s agree­ment ex­e­cuted be­tween a builder and a buyer usu­ally con­tains a clause that if the area promised ex­ceeds a spec­i­fied per­cent­age, then the buyer has to pay the ad­di­tional con­sid­er­a­tion. Where the area de­creases by a spec­i­fied per­cent­age, then the dif­fer­en­tial amount shall be ad­justed by the builder against the fi­nal sale con­sid­er­a­tion. But in cases where the BUA de­liv­ered is less than the agreed area, many buy­ers have al­leged that builders rarely re­fund the ex­cess amount or ad­just it against the fi­nal con­sid­er­a­tion paid by the buyer.

It is also per­ti­nent to men­tion that even if there is no clause in the agree­ment men­tion­ing the re­fund of ex­cess amount/ ad­just­ment of ex­cess amount by the builder against the fi­nal con­sid­er­a­tion, the buyer would still be en­ti­tled to a re­fund of the pro­por­tion­ate ex­cess amount paid to the builder if the BUA handed over by the builder is less than the area of­fered/promised by the builder in the buyer’s agree­ment.

This po­si­tion was also up­held by the Na­tional Dis­pute Re­dres­sal Com­mis­sion (Na­tional Com­mis­sion) in its judg­ment pro­nounced in 2012.

In the case, the con­sumer/ com­plainant was orig­i­nally of­fered a flat hav­ing a built-up area of 714 sq ft. The built-up area was also clearly de­fined i n t he buyer’s ag ree­ment. Af­ter hand­ing over pos­ses­sion of the flat, based on an ar­chi­tect’s re­port, who had taken the mea­sure­ment of the flat, the com­plainant dis­cov­ered that there was a short­fall in the BUA of the flat and the BUA handed over was only 565 sq ft as against the BUA of 714 sq ft in the agree­ment.

The buyer/com­plainant filed a com­plaint be­fore the dis­trict con­sumer dis­pute re­dres­sal fo­rum (dis­trict fo­rum), al­leg­ing that she had paid the en­tire amount of con­sid­er­a­tion but had been given a re­duced builtup area.

The dis­trict fo­rum ig­nored the ar­chi­tect’s re­port that the buyer had re­lied upon on tech­ni­cal grounds. The buyer filed an ap­peal be­fore the state con­sumer dis­pute re­dres­sal com­mis­sion, Ma­ha­rash­tra State Com­mis­sion. The State Com­mis­sion, in order to as­cer­tain the true f acts, ap­pointed an in­de­pen­dent gov­ern­ment reg­is­tered val­uer and char­tered engineer and ar­chi­tect as court com­mis­sioner to mea­sure the flat.

The court com­mis­sioner sub­mit­ted in his re­port that as per the agree­ment, the built-up area of the flat was to be 714 sq ft but the ac­tual built-up area of the flat in pos­ses­sion of the com­plainant was of 573.83 sq ft only.

The State Com­mis­sion sub­se­quently al­lowed the ap­peal of the buyer and di­rected the seller/ builder to re­fund the ex­cess amount to the buyer along with in­ter­est and also awarded com­pen­sa­tion due to men­tal agony along with the cost of the pro­ceed­ings.

The seller/builder filed a re­vi­sion pe­ti­tion be­fore the Na­tional Com­mis­sion, chal­leng­ing the order of the State Com­mis­sion. H o w e v e r, the Na­tional Com­mis­sion up­held the order of the State Com­mis­sion in favour of the buyer hold­ing that there is no il­le­gal­ity, in­fir­mity or ma­te­rial ir­reg­u­lar­ity in ex­er­cise of its ju­ris­dic­tion in the order passed by the State Com­mis­sion, which calls for in­ter­fer­ence in re­vi­sional ju­ris­dic­tion.The re­vi­sion pe­ti­tion was ac­cord­ingly dis­missed.

This case clar­i­fied the po­si­tion that in the event the area handed over to a buyer is less than the area of­fered/promised by the builder in the buyer’s agree­ment, the builder is li­able to re­fund the ex­cess amount charged from the buyer/con­sumer.

The chal­lenge, how­ever, is that very few buy­ers ac­tu­ally ver­ify the BUA of the apart­ments/ flats/ house sold and handed over by the builder.

Home­buy­ers should ver­ify the built-up area of the flat handed over by the builder be­fore mov­ing in

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