• Builder asking more at possession - take possession?

I booked an apartment  in Jaipur in 2007. Paid 2 installments but then the builder got in problems and stopped construction completely in 2009. Then the property was taken over by another builder and completed. They offered to take possession in Nov 2013 after a delay of 2 years. In the mean time I funded the property by taking bank loan. So I have paid around 6 Lakhs and the Bank paid 16 Lakhs for the property.

The builder has increased quite a few demands in the new possession letter issued in Nov 2014. They are charging for a higher super built-up area, higher external development charges, asking more for covered car parking, asking for club membership charges, asking for one time maintenance charges, asking money for land lease, and interest on late payment by me. What they have done is that they are asking for all the money they are charging extra for the new buyers in the new agreements from the old buyers as well. There was a supplementary agreement signed when the builder changed but these new charges were not mentioned in that. They have not increased the per square feet charges though. Also the builder is not willing to pay any late delivery charges. The additional burden turns out to be an additional Rs 6 Lakhs, that was not agreed in the original agreement. The Late delivery penalty that they need to pay me is around Rs. 2 Lakhs. So the total loss that I suffer is around Rs. 8 Lakhs.

I already filed a case against the builder in the consumer court in Jaipur. I didn’t take possession of the property. Now I want to review this situation again. While I am not taking the possession of the property I continue to pay EMI on the loan. Also, I am not able to get any rental on the property. I am not able to enjoy the tax benefit on the EMI. My case is going very slow, the court rejected my case once because I asked me Father in Law to represent the case as I don’t stay in Jaipur, my father in law does. Now, I filed the case again with my representation only. 

My question is whether I should take possession of the property now, and then continue with the case or should I wait for case the settle. I think it might take 1 to 2 years for the case to settle. Please give practical answer based on your experience please.
Asked 2 years ago in Property Law from Bangalore, Karnataka
Since in the supplementary agreement signed when the builder changed these new charges were not mentioned in that. So,you are not bound to pay the additional Rs. 6 Lakhs to the new builder legally.Moreover you are entitled to get late delivery charges around Rs. 2 Lakhs.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
1. What is your benefit for not taking possession of your flat?

2. I suggest you to take possession of your flat immediately and carry on your case with the Consumer Forum,

3. If the new builder is charging amounts beyond what was agreed upon before and if the delivery of possession is being handed over after the prescribed period or (if not prescribed in the agreement) after a reasonable period, then you have a fit case to win in the said Forum.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Hi, if you willing to pay the extra money then you have to take possession or if you wait for the court order you  to wait for the verdict or else take possession of the property and fight for the delay in delivery of the possession of the property and ask for compensation.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) the mistake you made was not taking possession of flat . you could have paid amount under protest and taken possession of flat . 

2) then you should have filed case before consumer forum . 

3) in any case you can pay  amount now under protest 

4) you are not bound to pay Rs 6 lakhs as no supplementary agreement was  signed by you 

5) you have good case on merits . please note that as per SC judgement builder cannot sell car parking slots further flats have to be sold on carpet area . builder cannot arbitrarily increase the price to recovered from purchasers for increase in super built area .
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
Hi,
 While continuing the case in the consumer court , take the possession, as the promised period as per the agreement is over, you can get the compensation for delayed delivery/possession . 
The supreme court ruling regarding the parking and common area  ensures that builder can not sell it to other than owners.
You are not bound by any terms other than the original agreement registered, the new possesion letter demands cannot over rule the agreement you signed with him, other than the VAT if it was not mentioned in the agreement and the agreement happened to be signed before the new VAT laws.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. You can take the possession of the flat under protest and simultaneously continue the case which you have filed in the consumer forum.

2. The demand of Rs.6 lakhs raised by the builder, which is not traceable to the agreement you entered with him, is illegal. Builder cannot unilaterally increase the price. The delay in delivery of possession is another ground on which you can make him liable in the court. You have a good case to win on merits.

3. Take the possession of the flat and continue the case. Taking of possession will not impair your rights.
Ashish Davessar
Advocate, Jaipur
18256 Answers
450 Consultations
5.0 on 5.0
1) pay the amount demanded by builder under protest . take possession of the  flat . 

2) if builder is willing to forego interest and holding charges arrive at an amicable settlement with the builder 

3) you have not mentioned what is the stage of your case before consumer forum . whether affidavit of evidence has been filed by you and builder . 

4) you can amend your complaint and contest additional demands made by the builder 

5) if your case is at stage of arguments you can now wait till your case is disposed of . demand for interest  and holding charges  made by builder is unsustainable 

6) consult your local lawyer before taking any final decision
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
1. You can take possession under protest and recover the amount by filing a suit for recovery against the builder.

2. What is the clause relating to holding charges in the agreement? Agreement will rank sacrosanct.

3. If the builder is willing to let go the interest and holding charges then it will be wise for you to withdraw the case. 

4. If the builder does not agree to waive the interest and holding charges then you will have to amend your plaint to seek inclusion of the charges in the aggregate amount of money of which you have sought refund. Depending on the stage of your case the amendment may or may not be allowed. If the amendment is disallowed then the only remedy would be to move the higher court.
Ashish Davessar
Advocate, Jaipur
18256 Answers
450 Consultations
5.0 on 5.0
1. As I have posted earlier I did not find any valid reason for not taking possession of the flat for which you have been paying huge money,

2. First of all take possession of the property even after paying those illegal additional charges,

3. While paying those illegal charges, write down 'under protest' on the respective documents/papers,

4. After taking possession and/or getting your flat registered, file the consumer case as advised in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1)under no circumstances should you stop paying EMI  to bank 

2) if you fail to pay EMI bank will charge you penal interest as per agreement signed by you 


3) in addition bank will auction flat  to recover its dues
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
Do not stop paying EMI to bank. In the event you discontinue paying the EMIs the bank will charge you interest as penalty and eventually take out proceedings for recovery against you which will result in auction of your flat. Bank is interested in only recovering its loan. It will not share your pain. Rather your pain will increase if you stop EMIs.

Talk to a lawyer and chart out your legal recourse.
Ashish Davessar
Advocate, Jaipur
18256 Answers
450 Consultations
5.0 on 5.0
1. Under no circumstances, bank can be termed as 'Equal party' in the instant matter,

2. Bank has provided loan to you by mortgaging the property and/or collecting colateral security,

3. You shall have to repay the loan to the Bank and can not drag the Bank in any dispute you face with your Developer,

4. You should not stop paying EMIs,

5. If you stop paying EMIs, then your said loan account will become NPA for which the Bank will initiate SARFAESI proceeding and recover the outstanding dues in your loan account by selling the mortgaged property.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Property Lawyers

T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18256 Answers
450 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2792 Answers
41 Consultations
4.9 on 5.0
Atulay Nehra
Advocate, Noida
444 Answers
15 Consultations
4.7 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0