• Bangalore: builder loaned project after 2 years of project launch and sale of flats

Hi all

We purchased a 3BHK in Banglore from some small builder in 384 flat project and got the Agreement of Sale(AOS) stamped (around 4000stamp duty) in June2013. Scheduled Delivery was June2015.

Builder not able to sell all flats and perhaps diversion of funds, so our project progress was too slow. Frame structure of 14floor was done in 3years and thus we had to pay 90% of the amount in Construction linked purchase plan. After that till now (2020), progress is slow in 3BHK but he delivered other towers of 2BHK (few of them got registered, few are just possession no registry).

In 2016 timeframe, builder financed 30+ crore from AnandRathi global finance and he put his 3 plots and this project as security for the loan . Builder has shown around 96 flats as UNSOLD (even though they are actually sold before 2016 itself like mine in 2013 with AoS in 2013). We also paid last instalment in 2017 in Anand Rathi Escrow account as the project was financed by that time.

Now builder is not able to pay money back to AnandRathi and thus AnandRathi has given advertizement not to deal with builder under SAFARESI Act. Anand Rathi has also posted a notice in front of my flat (under construction project) which is shown as mortgaged to Anand Rathi
There is case going between builder and AnandRathi in DRT but we don't know whats the issue in that.

I already send mail to AnandRathi person in notice in my flat that this flat is purchased by me in 2013 but he says talk to builder as he gave them unsold list. When i did AoS in 2013, AnandRathi was not in picture at all as project got financed in 2016. I had taken SBI loan to finance flat but loan is now closed in 2019

As a flat buyer who purchased in 2013,
- what should be done so that AnandRathi can't get a hold on my flat if they win the case in DRT with the builder as my flat is unsold it appears to AnandRathi.
- What should we do to make the builder deliver the project?

Thanks a lot for your time and patience to read this.
Binny
Asked 4 years ago in Property Law
Religion: Hindu

13 answers received in 1 day.

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15 Answers

You can cancel the said allotment of you want. If it's builders fault you will get entire refund

Prashant Nayak
Advocate, Mumbai
32148 Answers
185 Consultations

4.1 on 5.0

1);You have to file intervenor application in DRT that you are bonafide purchaser of flat . That loan had been taken from SBI to purchase the flat and has been repaid 

 

2) enclose copy of agreement for sale with builder 

 

3) seek orders to restrain Anand Rathi from sale of your flat as full consideration was paid 

 

4) also file police complaint against builder for cheating , criminal breach of trust under section 406 , 420 of IPC

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

Yes ,definitely you have solution under the law against both Builder and financial Company who financed the project of Builder.

You have to file suit for declaration of title ,possession and interest and injunction under section 34 and 36 of Specific Relief Act against Builder and Finance Company. Pl file it urgently and move the Court as your matter is under the caption of urgent hearing and ad-interim order. 

Pl move the Court and get the matter circulated for urgent hearing of ad-interim order of injunction against Builder and Finance Company. 

You would definitely succeed and get injunction order against both parties. 

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

5.0 on 5.0

1. Don't worry.  If your sale agreement was executed before the security was made your interest in the flat is protected in full. 

2. So give a written notice to the financier with proof of your sale agreement. 

3. If the financier doesn't relent then you have the option of seeking injunction from DRT.

4. Another option is to seek refund money from builder on cancellation of sale agreement and file case before the consumer forum. 

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

Contact a lawyer practicing in DRT and get impleaded in the case as necessary party and apprise the correct facts before DRT and get your flat excluded from the flats shown as mortgaged.  Hurry to avoid complications in future and obtain a stay order. Good luck.

 

Dalip Singh
Advocate, New Delhi
1085 Answers
36 Consultations

5.0 on 5.0

You can go to DRT and provide the reference of above case is running in DRT provide your all transactions details and cross questions how builder can do mortgage of your flat which already mortgage to SBI. So here nor builder or Anand Rathi is in the picture. 

Do keep SBI in the cc and bring in the notice of SBI this scenario, tell bank specifically that if Anand Rathi is going to win this case then you're not going to pay a single EMI. 

Ganesh Kadam
Advocate, Pune
12940 Answers
256 Consultations

4.9 on 5.0

From the facts narrated it looks like the builder was unable to deliver the flat to you as promised in 2015. Post 2015 what steps have you taken up against the builder demanding immediate completion and delivery of your flat, any written communication or notice sent to the builder If so, then my suggestion to you would be to file a consumer complaint in the Consumer Forum or RERA authority immediately.

As regards your next issue, the builder has raised a secured loan from AnandRathi, who have created a charge over certain flats, including your flat allegedly. If that is the case, then file a Objector or Interpleader application before the DRT where the case is proceeding between the builder and the financier. Submit your documents such as AOS etc., along with the application and seek a stay of further proceedings immediately.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

Dear Sir,

You are suggested to approach the DRT with an intervention application and ask the court to hear you also should be heard. 

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

You falt was mortgage after your booking. Mortgage of your falt is illegal. You can obtain stay by filing application DRT in same case. Delivery date was 2015, you are entitle to interest on delayed delivery. You can complain to RErA and consumer complaint for interest and compensation.

AR will certainly win the case if you dose not file allication in same suit to implead you party in the case and obtain stay. 

Stay may grant in your favor.

Yogendra Singh Rajawat
Advocate, Jaipur
22713 Answers
31 Consultations

4.4 on 5.0

- What about your flat , dully registered in your name or not . 

- However, when you entered into a registered sale agreement with the said builder in 2013 , and that duration there was no case was filed by the Anand Rathi , hence you have a legal ground for claiming the said flat . 

- You should send a legal notice to the said Anand Rathi after explaining your side along with the copy of the agreement to sell dully executed before 2016 and the proof of payment of loan with the SBI. 

- if, no response , then move an application for Injunction before the DRT , where the petition of them is going on. 

- Otherwise, you can also take refund from the builder with interest after filing a complaint before the Consumer court as well. 

Mohammed Shahzad
Advocate, Delhi
13526 Answers
201 Consultations

5.0 on 5.0

The flat was purchased by you and the builder took loan, was unable to pay the same, and hence the problem. You should engage a lawyer who will find out the bature of allegations pressed against the builder in the DRT. He will find the file and then you should lodge a complaint against the builder in the RERA tribunal. The tribunal shall appoint someone to take over the construction and selling of the flats and hand it over. 

Rahul Mishra
Advocate, Lucknow
14091 Answers
65 Consultations

5.0 on 5.0

Firstly you should realise the fact that you have not purchased the flat.

You have entered into a sale agreement with the builder in the year 2013.

You can claim title only after the property has been registered on your name.

Even this agreement of sale is by an unregistered deed hence not enforceable in law.

However since you have proof of having paid the money so far, you can claim the refund of your booking amount with interest against the builder for delay in construction by cancelling the booking.

The financier is not answerable to your notice, only the builder has to give an explanation or return your booking amount.

So you can sue the builder if he is not responding to your demand.

 

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

You can make a intervention application and submit it in the Drt along with the copies to serve the other parties. Your application will be heard and if relevant u will be allowed to intervene in the matter. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

File s case in the consumer forum.

Swarupananda Neogi
Advocate, Kolkata
2965 Answers
6 Consultations

4.7 on 5.0

You should make an application in DRT for joining you as necessary party because financer is claiming your flat as unsold flat by builder which is wrong hence lender cannot claim your flat under SURFAESI act.

You can file a complaint before RERA against builder for delaying possession. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

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