• Carpet area shortfall discovered 18 months after taking possession from builder

Facts of the Case (Based in Andheri West, Mumbai):

1. in 2014: Booked a 2 BHK with carpet area of 912 sq feet as per MOFA standards. 

2. in 2017: Rera was already formed and builder asked to register the sale agreement. Mentioned in it is Rera Carpet area is 838 Sq ft of my 2 BHK and Mofa carpet of 912 is also mentioned.

3. On 20th Dec 2018, got the carpet area measured, sent an email to builder that there is area shortfall of about 70 sq ft, builder denied and i got occupied in my work. OC was received on Dec 30, 2018

4. in Jan 2019, i took possession of the flat, signed the possession letter that i accept everything in the flat as is including area, quality etc..and that i have no complaints against the builder etc..standard stuff.

5. in Feb 2020, i got my carpet area measured again by a government authorized engineer, who gave a certificate and based on that there is carpet area shortfall of about 60 sq ft. Which sums to about 24 lakh rupees.

6. As per registered agreement, builder has 5 year of defect liability on the construction quality, which ends in Dec 2023 as OC received in Dec 2018.

7. There are many other residents in same situation, i am not alone with carpet area shortfall. Members of Newly formed PMC got compensation from builder for shortfall and so did few others, but they don't give proof of it... just tell verbally.

Questions:

1. Since i have already signed the possession letter, can i still talk to builder about the shortfall for compensation ? 

2. If the builder says that i signed the possession letter which says that i am fully satisfied with everything in accordance with the agreement and have no complaints against the builder, can i still file a case against the builder? 

3. What is the right course of action i should take to get compensation of 25 lacs for the area shortfall, discovered almost 18 months after taking possession.
Asked 3 years ago in Property Law
Religion: Hindu

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27 Answers

You should send a legal notice for the same.

This comes under deficiency in services. Possession is different from fraud and cheating. Taking possession only means that you have taken the flat feom him but that dies not mean that you cannot lodge a complaint against him in case there is a problem in quality of construction or taking money morw the agreed amount and giving you a flat of lesser area.

File it in RERA TRIBUNAL or consumer forum.

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

You can seek compensation from builder for shortfall in carpet area 

 

2) file complaint against builder before RERA or consumer forum and seek orders to direct builder to to pay you compensation for shortfall in carpet area of flat 

 

 

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

1. You may issue legal notice to builder for shortfall of area and may seek compensation on same if on notice he fails you may file complaint before RERA authority or you may alternatively file complaint before the consumer court.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1. Yes, you can still confront him for the fraud and deficiency of service. You might have signed the possession letter but you have discovered the fraud only now. 

2. Yes, you can file both a criminal as well as civil case against him. Because it appears that the builder had an intention to cheat since inception. 

3. To obtain compensation you need to file complaint before the RERA Tribunal or State Consumer Forum. The quantum of compensation would be determined by the court taking into consideration several factors. If the difference alone is 24 lacs, it is advisable you seek higher compensation and include the compensation for unfair practice, deficiency of service, mental agony and legal costs. 

Hope this answer is of some help to you.

Best wishes. 

 

Agam Sharma
Advocate, New Delhi
617 Answers
6 Consultations

5.0 on 5.0

1. Yes, infact you should.

2. There can be certain grounds, like the agreement was got signed by making false promises n all.

3. Complaint, consumer court 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

Hi,

Answer 1: Yes, you can talk to builder and also file consumer complain as well as case of cheating and civil suit for recovery of excess amount which is paid by you. It is admitted fact that you have signed the possession letter but as per agreement, builder was liable to provide you 2 BHK with carpet area of 912 sq feet as per MOFA standards but builder had failed to provide the same carpet area.

Answer 2: Yes, you can file a cases as mentioned in answer 1.

Answer 3: Right course of action, you should file a consumer complain as well as complain of cheating and civil suit for recovery of the excess amount.

Thanks.

Ashish Pandey
Advocate, New Delhi
21 Answers

Not rated

1. You can still complaint bout it before consumer court and criminal Court under mofa. 

2. Possession letter is only for seeking possession it can't include all the frauds done by builder. 

3. You can calculate the market rate for that much area under the saleable component and charge the same along with compensation and interest

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

Yes, you can ask him verbally or send him a legal notice if not complied you can file a complaint with RERA or consumer forum.

Regards

Swarupananda Neogi
Advocate, Kolkata
2963 Answers
6 Consultations

4.7 on 5.0

You can make complaint against builder in the Consumer Forum and RERA office for the refund of the extra amount charged by the way of false transactions.  Fraud, Misrepresentation, etc.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

1. You can take up the matter with the builder and inform him about the deficient carpet area, while asking him to compensate for the deficient carpet area in lieu by money.

If he is not agreeing for the oral demand made, you may issue a legal notice to the builder through a lawyer and follow it by a case before consumer court.

2. You can very well fight agaisnt the builder for the deficient carpet area stating that you were not allowed to measure the carpet are at at that time  and were pushed  to take possession.

3. See the anser given in the first above.

You may resort to legal action if the builder denies to compensate the loss.

 

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. You have an positive option to file a grievance petition against the Builder /Developer, in the local Consumer Court, for their illegal trade practice, negligence, deficiency, harassment, intimidation, cheating etc.... with proper documentary evidences and you can claim damages /compensation & interest on your investment, and for your physical & mental trauma.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

issue a legal notice through an advocate and file complaint before district consumer court for deficency of services enclose govt authorized engineer report and claim compensation

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

1. You ought to have exercised due diligence and either not taken possession or taken it under protest.

2. Now you have no cause of action against the builder.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. Yes you can still take legal action against builder for short fall in carpet area as mentioned in the sales deed or agreement.

2. Yes you can still file case agaisnt because no one take measurements of carpet area while signing satisfaction form.

3. File suit against builder in RERA or consumer forum for claiming compensation along with interest but before that send a legal notice to builder for claiming compensation for short fall in carpet area. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

If the builder is calling for a joint inspection to measure the carpet area, you may join him, note down what all he says and then give a written objection stating that whatever he had included towards the measurement of the carpet are incorrect other than the genuinely accepted subjects. 

Denying to join the inspection with the builder may go agaisnt you, you keep the engineer with you during the inspection.

The time take for disposal of the case either by high court or the national commission cannot be predicted owing to various factors involve in it.

The lawyer fee and the court fee will be intimated by the lawyer who you will be engaging for the services.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

You can have join inspection or not. He is liable to make good the loss for the same

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

Consumer forum cases will take two to five years maximum. 

Swarupananda Neogi
Advocate, Kolkata
2963 Answers
6 Consultations

4.7 on 5.0

BMC engineer inspection report would help you in Court. 

 it may take one to three years

Depends on your understanding with the lawyer. 

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

You cannot file case directly in Bombay high court 

2) you can approach RERA or consumer forum for necessary reliefs 

 

3) you can agree for joint inspection . BMC can give in writing that builder method of measurement is incorrect 

 

4) legal fees vary depending upon lawyer engaged by you 

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

1. You are no obliged to accede to his demand for a joint inspection, but it is worth doing it.

2. Duct area cannot be made a part of carpet area.

3. The case has to be filed in the Consumer Forum. It may take around a year.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. See you may allow joint inspection though if builder is adding wrong areas in the carpet area you may take objection on same.

See for 30 lacs you have to file in commission in Mumbai only not before the National commission , the court fee is minimal though lawyer fee shall be as per lawyer you engage.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

You are not obligated to do it, but it is advisable you allow him to do it. You can always object to the report prepared by the builder. 

If you deny the inspection, the builder will try to prejudice the mind of the court later.

You cannot file the case in National Consumer Forum or Bombay HC directly. National Forum deals with high stakes matters (1 crore and above) and Bombay HC is not the appropriate court for such cases.

The time would vary depending upon multiple factors. It cannot be predicted accurately. Under normal circumstances it should take about 3 years.  

Court fees is nominal (Rs. 2000 or Rs. 4000) and depends on the amount you will claim (Note: There is difference between amount claimed and amount genuinely expected).

Advocate's fees depends upon the advocate you engage. Fees drastically varies depending on the location, experience, expertise of advocate, paying capacity of client etc. 

Agam Sharma
Advocate, New Delhi
617 Answers
6 Consultations

5.0 on 5.0

Fee can be known by discussing with the particular lawyer you choose 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

1. Yes builder can ask for joint inspection but you can refuse builder proposal for adding duct area in carpet area of flat. 

2. Denying of joint inspection cannot go against you. You can ask court for inspection by local commissioner.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

1. Yes, you should talk , and also for compensation 

2.If the builder refused , then you can approach consumer court on the ground of deficiency of services ,and for claiming compensation as well.

3. On refusal , you should firstly sent a legal notice for claiming the said compensation , otherwise you can approach Consumer court. 

- Yes, you should join , and can adopt your method of measurement . 

- You cannot approach Mumbai High court or NCF directly , you should approach District consumer court. 

Mohammed Shahzad
Advocate, Delhi
13095 Answers
195 Consultations

5.0 on 5.0

You may file for a joint inspection but after that file a complaint in the district  consumer forum.  Fee varies and can be askedfrom individual lawyers.

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that there has been mistake at both the ends.
  2. I would like to apprise you that the mistake at the end of the builder would be considered as concealment of facts.
  3. And the same at your end would be considered as ignorance or would say misguided on the urge of others.
  4. As per the agreement itself you are within the period of limitation, and otherwise also as now it’s been done by the authority you have got to know about this now so it also makes and puts you on supra to the agreement too, resulting you have a right to file a suit for your rights.

Sanjay Baniwal
Advocate, South Delhi
5473 Answers
13 Consultations

5.0 on 5.0

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