• Need to take possession of our house and seeking for the quick and correct solution

Dear Sirs,
Me and some of friends have booked a flat in Chennai around 2015 March. During booking, builder has promised the handover by September 2015 and till date he has not completed the construction. However our construction agreement was registered stating 12 months as duration for completion and also there is no penalty clause in the agreement in case of failure to do so. In the mean while builder has promised different dates for handover during our follow up via email asking for money without even completing the stages. We also forced our banker / financier to release the payment to support the builder. After he gets all the payments as per agreement, still he is not completed the construction and suddenly he came up asking for more money than the agreed amount to complete the construction claiming that he has undergone loss and hence we need to pay him extra to complete the construction. He was very quite till he got fully money from us and after we paid full amount, now he came up and is asking more money for construction and he is very adamant as well. We already faced enough loss by paying only interest to our banker for the delay caused and we are unable to pay him more than the agreement value now. Also we need to take the possession of our home and we need to take care of the balance works on our own instead of paying the builder because we do not have trust on builder.  Also he involved in few of the fraudulent activities like, he sold one flat called G1 which is not at all available in the approved plan and got full payment from one purchaser with out registration of the flat G1. This is also a joint venture project and POA is given to our builder for construction and he has not paid any amount to the land owners as well. We filed the police compliant in local station and in commissioner office. Police has not taken any action yet and they are reluctant in taking action stating it as civil. Land owners also filed the police compliant and already cancelled their POA to builder legally with 960 Sqft UDS left out. Also the land owners are ready to join with us to carry out the balance work pending in the flat. Hence request your legal suggestion for taking over the flat and for the following clarifications.
1. Is there is any provision to cancel the registered construction agreement made with builder? because that is the only live document which permits the builder to enter in premises.

2. If we take the possession on our own, what will be the legal consequences which we may face from builder? because the doors are locked and he is refused to provide the key. So we need to do a duplicate key to enter into the un finished house to carry out the balance work. What will be consequences if we do that? Can the builder file a FIR on us?

3. Can we go to consumer court for this & how long it will take to get judgement? will it be favorable to the buyer?

4. Is there any other best way with quick solution?
Asked 8 years ago in Civil Law

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7 Answers

1) you should file complaint against builder before consumer forum seek orders to direct builder to deliver possession of flat within stipulated period

2) seek interest for delay in delivery of possession

3) also claim litigation costs and compensation for mental torture undergone by you

4)if project is registered with RERA then you cna file complaint against builder before RERA

5) cases before consumer forum take 2 years to be disposed of

6) builder cannot offer you possession till OC is issued

7) you should not break the lock and enter the flat

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

This builder is guilty of rendering deficient services to you and the other buyers for he has drastically failed in handing over the possession of the flat within the agreed stipulated time period.

File a case before the Consumer Forum seeking appropriate reliefs. As regards to your questions:-

1. The said Agreement has already been breached by the builder, time being it's essence. Therefore, builder can't take the protection of this agreement to interfere with your possession over your flat.

2. No. That's because he has the one who's at fault.

3. Consumer Forum can be approached. The forum will take approximately 6 months.

4. You can consider approaching RERA, together with an application for interim relief.

Vibhanshu Srivastava
Advocate, Lucknow
9763 Answers
323 Consultations

It is advised that you do not break the lock and enter the premises,

you have the right to lodge a complaint before the consumer forum and seek timely delivery along with the payment for delay in the delivery. It will take around 1-2 years to decide the case

Also, you can claim the litigation cost

Please see if the project is registered with RERA then file the complaint before RERA, for it being an effective forum. It will take around 90 days.

Regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

 it is a breach of contract. It is immaterial that there is no penalty clause in the agreement. In this situation you may file a petition before the consumer forum or RERA Tribunal for compensation and completion of the project as per the sanction plan. Builder is bound to complete the project in stipulated time, if he failed so to do then he is liable for compensate the flat owner. According to Section 73 of the Contract Act party to the contract is entitled for compensation even in absence of penalty clause in the agreement. 

You can file a civil suit against builder but you should prefer to file case before consumer forum/ RERA tribunal because proceeding before the consumer forum/Tribunal is more shifter then the Civil Court.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

1. Is there is any provision to cancel the registered construction agreement made with builder? because that is the only live document which permits the builder to enter in premises.

The conditions in the agreement will clearly state that under what conditions the agreement may be cancelled or terminated, you an visit the construction agreement between the builder and the land owner

2. If we take the possession on our own, what will be the legal consequences which we may face from builder? because the doors are locked and he is refused to provide the key. So we need to do a duplicate key to enter into the un finished house to carry out the balance work. What will be consequences if we do that? Can the builder file a FIR on us?

If the building is still under the custody of the builder then you canot forcibly enter into the same without his permission.

He cannot be made liable for any loss or damage due to this act.

3. Can we go to consumer court for this & how long it will take to get judgement? will it be favorable to the buyer?

The consumer court is the appropriate forum to seek redressal of your grievance against the builder.

4. Is there any other best way with quick solution?

Putting pressure on police to initiate fraud case against him.

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

do not take forcible possession of the house

2) file complaint before consumer forum seek court orders to direct builder to complete construction within stipulated period , obtain OC and deliver possession of flat

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

worst Scenario: the builder may file a case against you for illegal possession.

Best option: File a case in the consumer forum and press the interim relief that the possession be given to you till the final disposal of the case.

Regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

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