• Additional claim by builder for areas not necessitated by me

I had already asked this question on this forum on 17.10.2015 with following reference:
Your order#Question-42431 on https://www.kaanoon.com is successful.
 I got some answers. But now I reproduce below the exact correspondence I had with the builder copied below, for your valuable advice: The builder wants me to pay for additional 102 sqf SBA, even though 2/3 of the so called added are are below windows having a roof height of 3ft.
The correspondence via e-mail is from bottom to the top (latest)
Quote:
From Builder: 13.01.16
Dear Sir,

We have broadly replied to your queries and since it is highly impossible to answer series of queries through mail. We request you to kindly drop in at our office any day suitable to you with advance intimation so that we will try to explain all your queries/doubts to the best of our ability.

                However all the charges as intimated to you would be applicable and it is not possible to have any discrimination on that.

Regards

From me: 10.01.16
Dear Sir,

We are really not satisfied with your explanations. We would like to comment to your answers as under, also in bold under your answers.
We will appreciate your specific comments to our specific questions, and not in general terms.
If we are satisfied with your specific answers, we will then take a final view.
Awaiting your reply.
Regards, 

From Builder 10.01.16
Dear Sir,

Responding to your mail below, please find our answers/ clarifications below in each of your queries which are in bold letters for an easy identification.

For any further clarification, please feel free to communicate.

Regards
From me: 05.01.2016

Dear Sir,

Thank you for your notification regarding expected readiness of the flat and tentative schedule for handing over possession of the flats.
We plan to take possession of our flat during January 2016, and hope you have already received occupation certificates from the competent authority by now. Kindly confirm.

Ans) Sir, we have not yet received the occupancy certificate. The 2nd inspection by the fire department was made on 26.12.2015 and their observation/clearance is now awaited. Once this fire clearance is issued then only we can apply to BDA for the occupancy certificate.

Regarding payment of final instalment, we have to comment on 2 separate issues as under:

1.	We find you are asking us to pay for additional SBA of 102 sqft, which was not as per the original agreement, but half way during construction phase of the project, you came up with the idea of adding this area for some reason. This additional area was really not of much use for us, as you said these were all towards additional storage space. We already opted for a bigger flat, for the same purpose of more space or storage space. We did not comment that time, with the thinking that you will not charge for the space. But subsequently you informed that you want to charge for it which we find is not fair. Frankly we did not know, how to react to this additional claim that time, because it was neither necessitated by us, nor we approved it. For issues, which have wider financial implications, we think it should have been discussed with all prospective and affected buyers, and a consensus should have been arrived at based on majority feedback/voting. 
Further we are of the view, that the  added carpet area, as per you, does not really qualify as additional carpet area, major portion of this added carpet area, have only a roof height of 3feet or so from the floor level, below the windows. As per our knowledge in order to qualify an area as carpet area, it should have a roof over it at normal height which is clearly not the case for the added space below the windows. So we request you to kindly reconsider your additional claim on this account and do not burden us with further financial hardship, by deleting the additional claim.
Ans) Sir, you have to please realise that these additions have been made after a lot of deliberations( Please tell us with whom the deliberations were made?We are affected parties, did you take consent of majority?) and as required and or consultants advise and have been carried out with all good intentions (what is the definition of good intention here when you don’t consult). Since these are all extra construction area they are being charged to all the flat buyers and are being uniformly enforced (you can not enforce without an agreement) to everyone without any exception. It is therefore not possible to waive this charge on selective manner. We may kindly be apologised for not being able to keep to your request. What is your answer to the areas you have provided with a ceiling height of only 3 feet, which cannot be defined as a carpet area.(My questions to builder's comments in this paragraph are bracketed)

Ans by me) Please tell us specific with whom the deliberations were made, who were the parties? Is there any record of the deliberations made? Who were the flat owners who participated in the deliberation and gave consent. Your intentions can not be termed as good, if you are coercively charging for the area which cannot be used properly by buyers.  You and your consultants can not advise for changes, and enforce it, without specific agreements from buyers. Further you cannot go on adding areas, which do not have a proper roof height (only 3 feet) and still add it to your carpet area. Please answer specifically, why you should charge for carpet area, when the height above it is not full height? Unless we get a satisfactory answer in the matter, we regret that we cannot accept this claim, based on your logic that you are charging this way to everyone, and we are bound to accept it.
2.	You have asked for 1 year advance payment for maintenance charges, which as per normal practice is OK. But we are concerned with the high rates of Rs.2.50P per square feet being charged by you, which we feel is too high, for a place like Bhubaneswar. We are currently staying at Gurgaon, and we also stay in a multi-tower gated community, having all the facilities, that Z1 is providing, but the charges are less at Rs.2. So we feel the charges at Bhubaneswar should be around Rs.1.50P per square feet, which may possibly be reasonable. So please let us know, if you are able to consider a lower maintenance rate in this case. Needless to mention that on a long term basis, to stay here, we feel this charges will turn out to be a huge financial burden for all flat owners, and many of the flat owners will find the rate unaffordable.

Ans) On calculation we found that Rs. 2/- per sft is not getting sufficient to cover all the common nature expenses even after taking into consideration some extra earnings for the common income through some users fees as well as interest on the deposits. We were therefore compelled to increase it from Rs. 2/-  to Rs.2.50p.  However we would like to explain you that in case of any surplus the same will be kept credited to the common fund and same applicability vice versa for any shortfall. And by the way after the Owner’s Society is formed, they will always take the final call in all these matters. 


Further the maintenance deposit asked by you is also high, We paid a flat maintenance deposit of Rs50000 per flat, which does not bear interest in Gurgaon. So this amount being collected by you is also high which may please be reconsidered.

            Ans) The FMC Security Deposit is Rs. 30/- per sft and the total amount varies depending on the area of the flat and bigger flats obviously will have higher amount. And for your information all these money collected are being kept in Fixed Deposits and interest earned out of those deposits are being credited to the income of the Common Fund and inspite of doing this also Rs. 2.50/- paise in probably going to be just meeting the required expenditures.  Your explanations are OK, but we can not comment about your figures, this can only be commented, when proper audit is made.

We request your kind consideration to our above submission, and we look forward to taking possession of the flat soon,.
Thanking you,


From Builder: 08.10.2015
We are pleased to intimate you that the 1st phase project is ready to be delivered to the respective customers on and after 15th October 2015. You are therefore requested to kindly prepare yourself accordingly to take the delivery of your flat preferably within 15th November 2015. The details of your accounts & the payables are attached herewith for your kind  knowledge and perusal. You are requested to kindly bring the form 16 B against the TDS you have deducted and deposited in our favour, copy of your pan card and four copies of your photographs for necessary submission at our office. You may kindly ignore this request in case you have already submitted all these to us.
Apart from the settlement of your main account, you are also requested to make the following payments relating to the common maintenance which are  as follows:-
Sl No				SBA	2538	SQFT	AMOUNT 
1	Monthly Maintenance charge @ Rs. 2.50/- per sft per month for 12 month in advance	        76,140 
2	Service Tax on Monthly maintenance charge (14%)	        10,660 
3	FMC security deposit of Rs. 30/ per sft.	        76,140 
4	Society security deposit of Rs. 10,000/- per flat.	        10,000 
5	Total	     1,72,940 

All the above three payments should be made in favour  of the facility management company. Please also note that all expenses of common nature, like maintenance, security, housekeeping and gardening  etc and all  such other related expenses of phase-1 complex shall be made effective and start getting taken care of and consumed from the flat owners common fund contribution fund with effect from 01st January 2016 irrespective of different dates of taking delivery of their flats by the buyers.
Regards,
Asked 11 months ago in Property Law from Bhubaneswar, Odisha
Religion: Hindu
1)you have stated that  the builder wants me to pay for additional 102 sqf SBA, even though 2/3 of the so called added are are below windows having a roof height of 3ft.


2) pay the amount under protest 

3) take possession of your flat 

4) then move consumer forum against builder and seek refund 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Your rely and further questions posted to the builder are really awesome and perfect. 
The only place where you should have added a little essence was in the place where you had repeatedly mentioned bout the 3 feet above floor  (widow).  In this question , the question itself should have been a bit more severe stating that "will you keep adding all those spaces just 3 feet or 2 feet  or even feet vacant spaces available as an addition space provided to us for the purpose of demanding the costs for such absolutely useless spaces?"
The builder is doing a great injustice and appears to be more greedy than what a normal builder would be.
Dont leave him just like that and also put more pressure on him, if he takes shelter on this to delay handing over the premises, you can issue notice (legal)to him demanding possession along with occupancy certificate or can drag him to consumer forum.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
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To deviate from the original agreement, without a bilateral amendment in the agreement, is breach of trust, hence actionable at the instance of the aggrieved party. In your case the builder has without your consent increased SBA. Either you accede to the demand of the builder, or you file a lawsuit to seek judicial directions to the builder to not to charge for the increased area. Alternatively, you can cancel the agreement to seek refund of the entire earnest money paid so far with compensation. Decide soon as the builder has communicated his intention to deliver the project. 
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
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