Homebuyers Cannot Seek Refund Of Contractually Agreed Super Area Charges: Punjab RERA

The Punjab Real Estate Regulatory Authority has recently held that a developer cannot unilaterally charge homebuyers for any increase in carpet area or super area unless such charges are expressly agreed upon in the buyer's agreement.

However, it refused to order refund of super area-based amounts paid by buyers in a case against Omaxe New Chandigarh Developers Pvt. Ltd., after finding that the pricing structure had been clearly disclosed and accepted by the buyers at the time of booking.

Member Arunvir Vashishta, who decided the matter, held, “But definitely in the opinion of this bench nothing can be charged for an unilateral increase either in the carpet area or in super area if so has not been agreed upon by the parties in the buyer's agreement hat has to be ofcourse in the form as prescribed in accordance with Section 13(2) of the Act. RERA rules, 2017.”

"Complainant side has not been able to show if referred demand or charges were in derogation of the terms and conditions mentioned in the Form prescribed. Rather another rule of mercantile jurisprudence 'Caveat emptor' also applies in the matter which means 'buyer the beware'. So, complainants should have been vigilant enough about the terms and conditions duly mentioned in the agreement", the authority observed

The ruling came on a complaint filed by homebuyers Megha Chowdhri and Varun Kumar Sharma. They had booked a penthouse in Omaxe's “The Lake” project at New Chandigarh. They sought refund of about ₹75.84 lakh, alleging they were wrongly charged on the basis of super area instead of carpet area. They also sought interest for delayed possession.

The apartment measured 2570 square feet super area and 1498 square feet carpet area. Under the apartment buyer's agreement executed on January 4, 2023, the total sale consideration was fixed at ₹1,85,26,170 excluding GST. Possession was due by July 31, 2023.

Omaxe opposed the complaint. It argued that the concept of super area and the corresponding pricing had been clearly disclosed in the agreement signed by the buyers. It also said possession had been offered after obtaining the occupancy certificate.

Rejecting the buyers' challenge to the pricing structure, the Authority held that all terms agreed between the parties are binding unless they conflict with the prescribed model agreement or the law.

It observed, “all the terms and conditions of the agreement are binding and nothing can be charged over and above those unless those are against the terms provided in the said Form Q or in conflict with those."

It said the complainants had failed to show that the charges imposed were contrary to the prescribed framework. Applying the principles of pacta sunt servanda and caveat emptor, the Authority held that buyers who knowingly agreed to the pricing terms could not later seek a refund of those amounts.

However, Punjab RERA partly allowed the complaint on the issue of delayed possession. It directed Omaxe to pay interest from July 31, 2023 till January 18, 2024. The rate will be the State Bank of India's highest MCLR plus 2%, after adjustment of any pending dues payable by the buyers.

For Complainants (Megha Chowdhri and Varun Kumar Sharma): Advocates Mohd. Sartaj Khan, Divya Jyoti and Akshra.

For Respondent (M/s Omaxe New Chandigarh Developers Pvt. Ltd.): Advocate Arjun Sharma.