Super area – extra amount of increased sale area – Developer must give reasons, computation & calculations
Judgment dated 18.8.2023 of the Supreme Court
The appellant had constructed housing project “Windchants” at Gurgaon. The respondents are the allottees or subsequent purchasers / buyers of their apartments. Clause 8 of the Apartment Buyer Agreement pertains to the changes and variations in the sale area.
By the letter dated 27.4.2017, the appellant informed the respondents about the increase in the sale area of apartments and demanded differential amounts.
The payments were made without protest during the period of December, 2017 to August 2018.
The appellant executed the sale deeds during April 2018 to January 2020.
On 25.2.2022 the respondents filed consumer case in the National Commission for the refund of amounts paid for increased sale area on the ground that neither there was increase in the carpet area nor in the built up area. As a result, the demand was illegal.
The National Commission, by the judgment dated 16.1.2023, directed the appellant to refund amount to the respondents.
HELD that the cause of action arose when the appellant compelled the respondents to pay but did not furnish the particulars of increased sale area. The sale deeds were executed during the period of April 2018 to January 2020 and the complaints cannot be dismissed on the ground of limitation. Moreover, the Consumer Forums have powers to condone the delay even after two years.
Complaint filed after four years of payment for increased sale area without any protest is hit by the legal bar of acquiescence and estoppel.
The appellant is well within its right to ask for enhanced sale consideration on increase in the sale area as per the agreement. The respondents have not questioned the said right. They had challenged computation and calculations. They have right to ask for details of such computation.
Extra money for Extra or Increased sale area – the Developer must share the actual reason for increase in the super area based on the comparison of the originally approved building plan and finally approved building on completion. Basically the idea is that the allottee must know the change in the finally approved lay out and areas of common spaces and originally approved lay-out and areas.
The matter was remanded to the National Commission to consider if the principle of estoppel will apply and whether the appellant has substantiated claim for increase in the sale area.
Civil Appeal No.1434 of 2023 Experion Developers Pvt Ltd Vs. Himanshu Dewan and Sonali Dewan and others
