Times of India article June 4th 2009
: In a significant judgment that could be a trend-setting step towards protecting consumers against exploitation by builders, the State Consumer Disputes Redressal Commission has directed a city builder to pay a flat purchaser Rs 10.25 lakh with interest. The builder had passed off the super built-up area as the built-up area and given the flat owner less space then what had been mentioned in the agreement.
The verdict was passed in a case filed in 2001 by a Bandra resident, Allwyn Fernandes, against a prominent Bandra builder, Sydney Lobo of Trison builders. The consumer commission delved into the definition of ???built-up area??? and differentiated it from the concept of super built-up area to hold the builder guilty of deficiency in service.
MUMBAI: In a significant judgment that could be a trend-setting step towards protecting consumers against exploitation by builders, the State Consumer Disputes Redressal Commission has directed a city builder to pay a flat purchaser Rs 10.25 lakh with interest. The builder had passed off the super built-up area as the built-up area and given the flat owner less space then what had been mentioned in the agreement.
The verdict was passed in a case filed in 2001 by a Bandra resident, Allwyn Fernandes, against a prominent Bandra builder, Sydney Lobo of Trison builders. The consumer commission delved into the definition of ???built-up area??? and differentiated it from the concept of super built-up area to hold the builder guilty of deficiency in service.
???Built-up area is to be distinguished from super built-up or saleable area. Unlike the super built-up area, the built-up area will not include common areas???lift lobby, landings, staircase and the like. The built-up area will be the carpet area plus the area covered under walls. This can be verified as per actual measurement,?????? said the two-member panel headed by Justice B B Vagyani, president of the commission, last month.
The case had its origin in a development agreement dated 1993 when Fernandes surrendered his ancestral bungalow off Carter Road in Bandra to Trison builders for redevelopement. In exchange, the family was promised cash and two flats with a total built-up area of 1,410 sq ft near Mehboob Studio in Bandra. But eventually, Fernandes said he got 323 sq ft less than promised at Escada building. Feeling let down, he decided to drag the builder to the consumer court and in 2001 filed a complaint claiming compensation.
The main bone of contention was the ???lesser floor area of the flat??????. Relying on architects??? reports and the definitions provided by BMC rules, Fernandes???s lawyer Uday Wavikar said that the builder could not give a reduced floor area under the garb of a super-built area. Fernandes said that the built-up area could only include the carpet area plus 26% more.
But opposing the complaint and refuting the claim, the builder through advocate Denzil D???Mello contended that the ???built-up area included common facilities, such as the area under the lift, staircase, landing lobby.??????
Fernandes said he was first alerted when in 1999 the builder executed an agreement mentioning the area of the flat in terms of carpet area. He got the built-up area endorsed on a certificate, and still not satisfied, got his flats measured by an architects??? firm based on a map???only to realise that the built-up area was less than what the certificate showed.
The builder???s architect too came up with his calculations on the built-up area and while the notions of both sides clashed, the commission put to rest all confusion by saying that ???the correct approach for the calculation of built-up area would be as commonly understood and followed in the Mumbai municipal corporation??????.
???Once we exclude the proportionate area of the lift, lobby, staircase, landing space and common passages, the built-up area which is made available to the complainant comes to 1205.13 sq ft (including enclosed balcony and servant toilet). It makes a shortfall of 205 sq ft in the built-up area. Since the complainant had received an area which was less than what had been agreed upon, he needed to be compensated in terms of money as it was not possible to give any additional area in the building, the judgment said. The panel put the compensation at Rs 10.25 lakh at 9% interest since 1999, when the family had taken possession of the new flats.
The builder is likely to go in appeal against the commission???s order