Black Ace Chambers

Unwarranted Demands by Realtors

Pawan Gupta Vs.  Experion Developers Pvt. Ltd. On 26th Aug, 2019,Consumer Case No. 286 OF 2018 by NCDRC, which has been upheld by the Hon’ble Supreme Court in Civil Appeal Nos 3703-3704 of 2020

Para 17. The complaints have been filed mainly for two reasons. The first 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 been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. 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 the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required.

Para 18. Now coming to the compensation for the delay in handing over the possession, it is seen that the possession in both the cases has been offered after obtaining the occupation certificate. Thus, the possession cannot be called a paper possession as alleged by the complainant. The opposite party is already ready to rectify the defects noted in the joint inspection. In these circumstances, the complainant will be entitled to compensation for delay only upto 3 months beyond the offer of possession from the date of due possession in each case. Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, (supra) has clearly observed that when the contract/agreement has been signed by the builder and the allottee, both of them are bound by the terms of the agreement and from this aspect, the allottee is only entitled to get the compensation as mentioned in the agreement. The Hon’ble Supreme Court has given some compensation for mental agony and harassment to such allottee. In the present case, a compensation of Rs.7.50/- per sq.ft. per month is agreed between 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.

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