• Builder and bank not cancelling allotment even after 1 year

I had purchased a flat in Noida Expressway in May 2010 after taking a home loan from a reputed bank. The flat was completed in Nov. 2015 after a delay of 6 years from the promised delivery date but it is of low quality. The builder is asking for more money saying that the super area has increased by 5% but has not furnished any proof for it. Due to the long passage of time, my personal circumstances have also changed and I am no longer interested in this flat. 
Over the past one year, I have been asking both the builder and the bank to cancel the allotment and close the loan respectively according to the Flat Buyer’s agreement with the builder and the Tripartite agreement with both the builder and bank but to no avail. The bank has only recently asked the builder to cancel the allotment. However, the builder is not cancelling the allotment and refunding the money to the bank. Instead, the builder is asking me to pay the remaining amount with 18% interest and holding charges and take possession of the flat. This is completely against the Flat Buyer’s agreement and the Tripartite agreement which do not have any clause stating that the buyer cannot cancel the allotment. 
On the other hand, the bank is also asking me for the outstanding EMI amount with 18% interest. First, they delayed sending the flat cancellation request to the builder by more than 9 months and now with the builder not refunding the money, they still haven’t sent a legal notice to the builder to recover their money according to the Tripartite agreement. This is when I am not even asking for refund of around 30 lakhs paid to the builder and bank in last 7 years. Kindly advise.
Asked 7 years ago in Property Law
Religion: Hindu

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7 Answers

The issue has become really complicated and only way to get out of this entanglement is to fby filing a case before the consumer forum wherein you can make both the builder and the bank party to it.

Sekk refund of your money and cancellation of sale agreement.

Cancellation is very integral part of any agreement and no agreement can restrain the party to it from doing so.

So file the case beofre the consumer forum.

Your problem would be resolved for sure.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1)the builder cannot increase the area of flat without the purchaser consent

2) if builder is refusing to cancel the allotment file complaint against builder before consumer forum and seek orders to direct builder to refund the Rs 30 lakhs paid by you

3) also seek litigation costs and compensation

4) on receipt of refund you can repay the bank loan

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

Dear Concerned,

Firstly the Loan has been taken by you the house has been bought by you its you who need to send a cancellation notice not the bank . Even in case of cancellation clause missing (which seems weird) then too you should have sent the cancellation letter. WHAT NOW - Referring to the cancellation letter sent by bank immediately send a reminder letter of cancellation and do state that the project has been delayed by so and so time .

The loan has been taken by you and hence the EMI's has to be paid by yourself. In this case the bank will send you a legal notice to pay the EMIS followed by a Legal Notice of NPA and later might file a case in the Debt Recovery Tribunal and the bank will make the builder party in the case.

THIS CANCELLATION REQUEST is something that will safe guard your interest - Send an application and simultaneously file a complaint in the consumer forum to recover your money from the developer making the Bank performa defendant - if you want to spend some more money you may choose to file a RECOVERY suit against the bank .

Best of Luck

Atulay Nehra
Advocate, Noida
1309 Answers
58 Consultations

5.0 on 5.0

1) both co owners have to request builder to cnacel the allottment

2) file complaint before consumer forum against builder and bank as advised earlier

3) builder cannot increase the super built up area without flat owners consent

4) you are entitled to contest the arbitrary increase in super built up area

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

Dear Concerned,

1. No it is not necessary for both the allotees to send cancellation, however it is better if one letter was sent signed by both or the email communication always had the second allotee CCed. Not to worry this can be taken care off.

2. You would be having your loan statement - if not take it from the bank , they can not deny your loan statement to you it will give you details of money released to bank --- add this money to the money you paid as down payment etc - thats total money paid to them

3. Yes you can file criminal case against the Builder but not against the bank - as bank is asking you charges for the legitimate money they have given on your behalf to Builder. Also stay on the charges can be obtained in rarest of the rare cases through court.

4. Yes you can fight for the Super area increase based on the one sided builder buyer agreement.

5. Yes in case of cancellation after all deduction the builder will pay the money directly to the bank and in case of any shortfall to the bank you will have to pay the balance.

You may feel free to call us for free consulting on your subject.

Best of Luck .

Atulay Nehra
Advocate, Noida
1309 Answers
58 Consultations

5.0 on 5.0

You have confused yourself by letting the things going out of your control due to lax in your follow up or approach on the subject.

Did you send the communications in writing to the builder as well as to the bank informing your decision to cancel and did you get anything in written as confirmation.

If so secure all the evidences and issue a legal notice demanding the desired relief from them giving them time to respond or communicate.

After that you can resort to legal action against them through consumer forum also.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

1. If there are two owners, then both have to initiate the process jointly.

But regular follow up by at least one should be there.

2. You will not get responses to your frequent emails.

You have to resort to legal process once you dont get proper response to your personal efforts.

Consult a lawyer and send a proper legal notice demanding the reliefs.

3. First of all ascertain the facts of the case as well as other circumstances.

Dont jump into any conclusion hastily.

The details would be different from the builder side to that of the banker.

The banker's demand is for repayment whereas the builder's demand would be of a different subject.

You should ascertain from the tripartite agreement that who should pay the amount to bank and how much etc.

4. Your entitlement of super built area would have a mention in the agreement itself, if not you can demand the details of the same from builder.

If you find that the builder is violating the agreed conditions you can make a representation tothe builder and seek his explanation after which if you still are not satisfied, then you may resort to legal process.

5. If the builder has to reimburse to bank directly then why would the bank ask you for the repayment,

Consult a local lawyer and decide about further action as per his advise.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

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