Dear Advocates…. In month of April 2017, a builder promised me that his commercial shop will be ready to use by 1st June 2017. I was new in property dealing, I broke few FD and paid Rs. 30,00,000.00 to the builder without signing any written agreement. I have got only amount paid slips” from the builder as documentary evidence. I again visited the facility several times after payment and later forcasted that shop would not be ready by 1st June 2017. Till today (22 October 2017) occupancy certificate is not issued by municipality. After forecasting that shop would not be ready by 1st June 2017, I told builder on 15 May 2017 to refund my money as I am not interested in his shop. He did not refund. Instead he told me to sign on refund agreement. The refund agreement was signed on 3 July 2017. The extract/main clauses of agreement are as below, 1. Builder will refund the amount to me within 6 month after deducting administration fee of Rs. 40,000.00 2. If builder fail to refund in six month time, he will refund the amount to me with simple interest of 7.5% till the date of realization. The refund agreement will complete 6 months time on 3 January 2018. I am sure by this time also builder will not refund or assume that he will not refund. My question is, Q. Can I issue legal notice to builder in this month with following clauses? 1. This is reminder to you that refund agreement will complete 6 month time on 3 January 2018. You failed to pay the agreed amount till date. 2. After 3 January 2018, you (builder) will be given additional 2 more months (example) to refund money with 7.5% interest. If you fail, you will have to…….(clauses suggested by my legal advocate will be included in agreement).
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Yes, the clause seems alright.
Whatever be the clauses if builder fails to honour the initial or subsequent agreement you can seek legal recourse through filing case before the consumer forum wherein you get not only the refund but damages, compensation and interest also.
Issue legal notice to builder only on expiry of 6 months period
2) if builder fails to refund file complaint against builder before consumer forum and seek refund of money paid by you with interest
3) also claim litigation costs and compensation for mental torture undergone by you
Yes, this reminder, in the form of legal notice can be sent by you.
Clause 1 can be included.
No need to include clause 2. There's no need to give him additional 2 months and in any case, if he gives you the refund after 3rd January 18, you're entitled for the refund with 7.5 percent interest. Post 3rd Jan 18, you can move to the court against him seeking specific performance of the refund Agreement.
Dear Advocates, Thanks for your response, The signed refund agreement has following clause, The second party (myself) covenants and agrees, that the liability of the first party (builder) to refund the money to the second party shall be restricted, solely to the said amount of Rs. 30,00,000.00 less Rs. 40,000.00 Is this clause going to restrict me from filing case in court or consumer forum?
You cannot claim interest from the builder only recover the principal amount after deducting amount of Rs 40000
You are at liberty to file complaint against builder before consumer forum
No, this is neither going to restrict you from approaching the court nor this will restrict you from claiming Maintenance.
No, its not restraint at all to file consumer forum case.
This refund agreement is not valid because at the time of making of the payment you have not signed an agreement with the Builder. Reciprocal agreement is valid only when there is one valid agreements is subsist. However deduction Clause is valid for returning of payment in such a long period is invalid. You should not sign this agreement because it is very much inclined towards the Builder. If builder takes such a long period for repayment then you can claim interest thereupon. In this condition the refund tenure should not be longer than 1 month.
If you have already signed this agreement then you can file a civil suit under section 74 of the Indian Contract Act because terms of the contract is unfair and terms of the contract is like a penalty.In this situation the court shall determine what would be the better settlement between the parties.
Hello,
Yes you can issue a legal notice to the builder as per the clause, it is advised that you send the notice after 3 months from the last date, till then you can follow up with him over e-mail and text and keep a prove of the same.
Moreover there is no need to give additional time of 2 months and after 15 days of the legal notice if he fails to abide by the terms, you can file a case in the consumer forum and can subsequently claim the damages and litigation cost.
Regards
Follow Up::
This will not act as estoppel and you can approach the court even then
My question is,
Q. Can I issue legal notice to builder in this month with following clauses?
1. This is reminder to you that refund agreement will complete 6 month time on 3 January 2018. You failed to pay the agreed amount till date.
2. After 3 January 2018, you (builder) will be given additional 2 more months (example) to refund money with 7.5% interest. If you fail, you will have to…….(clauses suggested by my legal advocate will be included in agreement).
You cannot issue a legal notice at this point of time since you have already agreed for the refund to be made and given him time till 03.01.2018, hence you have no alternative than to wait at least until then.
The signed refund agreement has following clause,
The second party (myself) covenants and agrees, that the liability of the first party (builder) to refund the money to the second party shall be restricted, solely to the said amount of Rs. 30,00,000.00 less Rs. 40,000.00
Is this clause going to restrict me from filing case in court or consumer forum?
Approaching the consumer forum will depend on his performance of his side of contract.
You have a money recovery suit, which is a recommended legal action in this situation, the consumer case may be deferred till he becomes default of his own condition.