8 August 2018

NATIONAL CONSUMER FORUM JUDGMENT | INTERNAL AND EXTERNAL WALLS CANNOT BE INCLUDED IN THE CARPET AREA

The National Consumer Dispute Redressal Commission (NCDRC) in the case of Shailendra Kumar v Jagdisha Dialani & Anr, decided on the issue of ‘whether the internal walls and external walls are included while measuring the carpet area?’

This update briefly summarises this decision of the NCDRC.

FACTS OF THE CASE

1. The Complainant purchased a ready flat in the building developed by the Respondent. Under the agreement with the Respondent, the Complainant purchased the flat admeasuring 760 square feet carpet area for the consideration of Rs 25 Lakhs.
2. On taking possession of the flat, the Complainant found that the flat was smaller, and therefore filed a complaint before the Maharashtra State Commission against the Respondent / Developer, as well as against the estate agent.
3. The Respondent claimed that the shortfall in area was an inadvertent lapse—the term carpet area was used when the 760 square feet actually referred to the built-up area.

OBSERVATIONS OF THE MAHARASHTRA STATE COMMISSION

1. The Maharashtra State Commission (MSC) observed that the requirement to mention carpet area in the agreement for sale was introduced in 2008 by an amendment to the Maharashtra Ownership of Flats Act, 1963.
2. Since the agreement between the Complainant and the Respondent was executed prior to this date, the Respondent could not be faulted for mentioning the built-up area instead of the carpet area.
3. While dismissing the complaint, the MSC further observed that the approved floor plan annexed to the Agreement indicated that 760 square feet is the built up area and, therefore, the Respondent had not suppressed any facts.

JUDGEMENT BY THE NCDRC

1. Thereafter, the Complainant approached the NCDRC, who directed the Respondent to re-measure the carpet area. In compliance with the aforesaid direction, the Respondent filed a report of a qualified architect. As per his report, the total carpet area of the flat was 674.74 square feet whereas the carpet area of the servant toilet was 51.25 square feet. The area of the internal wall was stated to be 19.50 square feet while the area of the external wall was stated to be 57.49 square feet.
2. The NCDRC observed that the area under the internal and external walls cannot be included in the carpet area. Similarly, the area under the door jams is already accounted for in the floor area and cannot be separately added to the floor space. It concluded that instead of 760 square feet, the actual carpet area was only 713.39 square feet, resulting in a difference of area of 46.61 square feet. The NCDRC held that the Respondent was liable for this deficiency.
3. Accordingly, the NCDRC ordered the Respondent to refund the value of the deficient carpet area. In addition, the Respondent was also directed to refund stamp duty charges on the deficit area of 46.61 square feet. Both these amounts would also carry 9% interest from the date of the complaint till the date of refund.

MHCO Comment: The developers in the new age buildings have been including all the common space as part of buyer’s area at the time of the sale. This judgement has clarified that even internal and external walls cannot be included in the carpet area and the builders/developers can be held liable for manipulation of the carpet area. We believe this will have substantial impact on developers and protect the buyers.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.