• Delay in possession of flat

I booked a Flat in July 2013 
Total flat Price was 38.5 Lac Rupees ( Including VAT and Registration charges) out of which i have already paid 34.5 Lacs to him and i have all the original receipts for the same from builder. I am ready to pay the remaining amount as and when demanded from him, I still haven't received any demand from him for the remaining amount.  

I was promised verbally by Sales Guy of the builder the possession of the Flat by Dec 2013, However when we had gone for the agreement in Aug 2013 the person from the Builder side came with the agreement already typed in which the date mentioned was FEB 2014 as per the agreement and I had no other option than to go for the agreement as he said it has been revised and I shall get the same by FEB 2014, then he delayed saying it will be given in 1-2 months However on 08 May 2014 got the Email from builder side assuring for giving possession of the said flat by 15th December 2014 and the reason for Delay mentioned was : Upon thorough review of the situation, we narrowed the cause to delay in material and labor shortage and delay in MSEB supply. 
Despite repeated follow up meetings, emails and phone calls with Builder on project schedule, builder is neither replying to emails, nor providing us possession or reason for delays or a concrete date for possession. Hopefully he is telling it will be given in 1-2 months as only MSEB connections are pending.
Agreement Clause reads as below: 
The Builder shall give the possession of the said Flat on FEB 2014. It is clarified that possession date mentioned herein is subject to the purchaser unit only. It is agreed between the parties that the builder will complete the common facilities and amenities of the entire project as per their convenience in due course of time. Provided that builder shall be entitled to reasonable extension of time for giving delivery of unit on the aforesaid date, if the completion of unit is to be situated is delayed on account of:
1 Non availability of Labor, steel, cement, other building material, water & electric supply 
2 War, Civil commotion, Heavy rains or act of God
3 Any Notice, order, rule, notification of the Government and/or other public competent authority or any decree/ order of any court
4 Delay in making available electricity connections and water connections
5 Delay or default committed by the purchaser or other purchaser in making timely payments of installments, without prejudice to the right of builder to terminate the agreement
6 Changes in the Rules, Regulations BY Laws of various statutory bodies and authorities from time then affecting the development of project.


However the Developer shall not be liable to pay any compensation for delay in possession on any account whatsoever.


I have a Question and need your assistance on this.
Builder was in Dominant position while signing the agreement as per his terms and conditions and i had no other option than to sing as it was typed or he has the right not to sell the Flat to me 
Do i stand a chance for any sort of compensation on this in consumer court and till date i haven’t got the possession??????????
Asked 2 years ago in Property Law from Pune, Maharashtra
1) you are entitled to seek  compensation for delay in delivery of possession by the builder .

2) since builder is charging you 18%interest if you delay making payment similarly he should also pay interest at 18%for delay in delivery of possession by one year 

3) you can move consumer forum against the builder  to direct builder to pay you interest / compensation for delay in delivery of possession . 
4) further you can seek direction that builder shall hand over possession within stipulated period .
Ajay Sethi
Advocate, Mumbai
23155 Answers
1216 Consultations
5.0 on 5.0
In one of the recent judgment Mrs. Veena Khanna of New Delhi Vs M/s. Ansal Properties and Adharshila Towers, New Delhi: Before National Consumer Disputes Redressal Commission, New Delhi:
Due to abnormal delay in handing over the possession of flat, the Complainant had demanded refund of the deposited amount with interest @ 18% which the Opposite party refused to pay. The State Commission, Delhi. directed the Opposite Party to refund the amount to the complainant with interest @ 13% p.a. from the date of deposit of the last installment till the date of payment of refund. In the alternative it also directed that if the Opposite Parties choose to handover the possession of the flat, the order of refund with interest will not come into operation. Complainant filed appeal the National Consumer Dispute Redressal Commission decided that the Complainant is required to be compensated for delay in construction of the flat and for not allotting the same to her.
Buyers can take recourse to Section 8 of the Maharashtra Ownership Flats Act, 1963, which makes a developer liable to refund the money obtained from a customer with 9 per cent interest if he is unable to justify non-completion of his project.
Judgement of consumer court for non registeration of flat by builder
Ajay Sethi
Advocate, Mumbai
23155 Answers
1216 Consultations
5.0 on 5.0
Well, I have seen the 'Force Majeure' clause and I dot think any of it applies to you.
Even if any clause applies in this case then the onus is upon the builder to prove the same .
Hence you can claim damages, interest as well compensation out of default on the part of the builder to deliver possession in stipulated point of time by filing case in consumer forum.  
In this case you indeed had no level playing field for proper negotiation and you had to sign the dotted line as provided by the builder.
In that event the Forum may ignore the 'Force Majeure' clause if the same is unjustified. There is dearth of such decisions of the supreme court which can be cited at the time final hearing.
Devajyoti Barman
Advocate, Kolkata
5181 Answers
54 Consultations
4.9 on 5.0
When we plan to buy a flat /Villa from builder it is an important thing before paying any amount is scrutinizing the agreement for buying the property. If it with the help of a lawyer or a knowledgeable person, so that the builder does not include clauses that are to his advantage and your disadvantage. If it contains any such unacceptable clauses, please have them struck out or suitably modified before you sign the agreement. Do not make any payments unless this is done. Check whether the agreement contain all the costs and charges up front, details of actual measurable dimension of the flat, the dimension and specifications of the entire building, common amenities must be mention


Solution before you
You can claim damages and loss occurred due delayed delivery of the flat with interest as well compensation out of default on the part of the builder to deliver possession in stipulated point of time. Delay in handing over with respect to the date of handover mentioned in the agreement can be complained to the Consumer Court and you are likely to get some compensation.
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
1. The said Agreement is invaid since the builder was in a dominating position to incorporate the one sided clauses like the time of completion is restricted to the flats only and not the common area for which there is no completion period stipulated,

2. You can file a complaint case before the local District Consumer Dispute Redrssal Forum alleging deficiency in service and unfair trade practice claiming immediate possession of the flat, payment of amount equal to the probable rent of similar flat in identical locality, interest, damage anst cost,

3. Before filing the complaint case, send a legal notice to the builder.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1. The Greement is one sided,

2. One sided Interest can not be charged for delay,

3. File the complaint case before the Consumer Forum as suggested in my earlier post,

4. This is a good case to win.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
1. You can file a case in the consumer forum to demand early possession with no escalation cost or the damages and compensation along with the interest on the money with total amount refunded. Both the options are open to you to avail.

2. You must note that courts do not enforce oral promises. As per your statement of facts, builder had promised the possession by December 2013, a promise he could not honour. When no time frame has been mentioned in the agreement the time frame should be reasonable. In your case the delay is unreasonable.

3. The agreement you entered into with the builder is one sided in as much as it speaks of interest in the event there is a delay in making payment by you, but it is silent on the liability of the builder if there is a delay on his side in giving the possession.
Ashish Davessar
Advocate, Jaipur
18083 Answers
447 Consultations
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1. Issue a lawyer's notice to the builder.

2. If he does not comply with the notice then move to the consumer forum as suggested in my previous reply.
Ashish Davessar
Advocate, Jaipur
18083 Answers
447 Consultations
5.0 on 5.0
A. Breach of oral promise will be liable to pay damages under the doctrine of promissory estoppel. It is an unfair trade practice of the builder.  You can issue a legal notice through your advocate in respect of delivery of the flat.

B. File a complaint before the consumer forum to give direction to the builder to complete the construction or claim damages and compensation for the delay of delivery of possession by submitting all material records.

C. The clause of "Force Majeure' i.e, act of god, not applicable in your case and this clause misused by the builder. If the builder willing to get protection under the same that the builder shall prove the same before the court.
B.T. Ravi
Advocate, Bangalore
733 Answers
29 Consultations
5.0 on 5.0

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