• Builder not refunding the amount even after No BBA signed

Hi, 

Pls. find the details of my case and provided legal opinions on the queries below (at the last).

I booked one flat with Gurgaon based builder in Nov 2013. This was a prelaunch project wherein builder has demanded 30% of amount in 1 year from the date of booking & rest based on the construction linked plan CLP. In 1 year I paid 30% of the amount upfront. Later on builder has done allotment which was handwritten just on paper with unit & size and no actual site construction kicked in. After few months builder send another demand letter & has changed the size of the unit to addl 10% from what was agreed @ the time of booking. After many months in July 15 builder sent the BBA having mostly all one sided b clauses favoring builder.. but the most shocking was the escalation clause wherein builder has the right to ask for additional 10-25% extraa of the project value based on the changing conditions (increase in price of construction material,labour..). I rejected this BBA and didn't sign and ask them to correct it. They never did and despite that threaten ( by sending letter) to cancel the booking if BBA is not singed within 30 days and additional amount is not paid. ). In the meantime found lots of people started filing the cases with the lawyers.

I filed the case through one of the lawyer in State consumer forum New Delhi. From April 2016 till date there were only 3 hearings and each time there is not much significant update. In last rejoinder reply by builder's advocate made first & foremost point on the jurisdiction to be Haryana (being builder corporate office in Gurgaon) not Delhi. This was my great concern since beginning itself but before filing the case my lawyer has informed several times that since my first demand letter from builder has Transfer/payee address of Delhi the case can undoubted be contested from there instead from Panchkula Haryana. 

But since filing the case I am somehow not much satisfied with its progression. My lawyer informed me that the case is now at evidence stage but not confirming how many more hearings required when the judgement could be made Bit skeptical now about my lawyer as I am not finding the case proceedings updated in "cms.nic.in" neither the next hearing date as my lawyer claims. Even NO agreement happened (only initial booking done) with the builder still I am struggling to get my full refund amount.

Queries :

1. Can this case could be contested from Delhi as my lawyer claims based on the 1st payment demand letter which builder sent having "Delhi's address".

2. Based on the inputs provided what are your views; Is case is progressing with the right pace & right manner considering " No builder buyer agreement sign off happened & Only booking is done on which builder collected hefty amount in 1 year based on that"

3. Should this case be filed in National Consumer form instead (considering unit value 1.6 cr+).

Much appreciate your legal opinions.

Thanks
Asked 5 years ago in Property Law
Religion: Hindu

First answer received in 10 minutes.

Lawyers are available now to answer your questions.

21 Answers

1) case can be filed in Delhi if first demand notice was issued from Delhi

2)cases before state commission take years to be disposed of depending upon pendency of cases in state commission

3)jurisdiction would depend upon reliefs claimed by you

Ajay Sethi
Advocate, Mumbai
89045 Answers
6352 Consultations

5.0 on 5.0

This is one issue that the property is in Gurgaon so case should be in Haryana it self.

The consumer courts are very busy and normally giving the 4 to 5 months date which is really time taking and can not be help out.

As you told that there are many complaints and you should form a group to represent in the case.

Value wise the national commission is the option.

Vimlesh Prasad Mishra
Advocate, Lucknow
6849 Answers
23 Consultations

4.9 on 5.0

1. Can this case could be contested from Delhi as my lawyer claims based on the 1st payment demand letter which builder sent having "Delhi's address". S.17 of the CPA "(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction, - the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily re-sides or carries on business or has a branch office or personally works for gain;

Answer: As payment demand letter which builder sent having "Delhi's address". it is considered to be a branch and therefore the commission in delhi is vested with the jurisdiction to entertain and adjudicate the matter.

2. Based on the inputs provided what are your views; Is case is progressing with the right pace & right manner considering " No builder buyer agreement sign off happened & Only booking is done on which builder collected hefty amount in 1 year based on that"

Answer: Agreement is not a condition precedent to institute or maintain a proceeding, whether you are able to establish each and every cause of action which you allege.

3. Should this case be filed in National Consumer form instead (considering unit value 1.6 cr+).

Answer: Section 11(1) of the Act deals with this; National Commission : The National Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any, exceeds Rs. One Crore. As you have instituted in 2016, if it is above 1C, then it shall be tried by NC.

Hope this answers all your questions.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1) you have invested so much amount on paper work and not on actual physical construction. Actually you should have paid maximum 10% of flat cost not more than that it could not see any work had been not started.

2) As you said you want to move National Consumer Forum, here you can move within 2 years from th dispute took place when property is costing above 1 crore.

3) try to read RERA Act as well and you can go National Consumer Forum...where the project has been not started yet. So builder has to return the advance amount took from you along with compensation.

Ganesh Kadam
Advocate, Pune
12420 Answers
193 Consultations

4.9 on 5.0

Yes it can be Delhi jurisdiction. Consumer laws are to ease the Consumer and not to harass them. It doesn't follow rigid law procedure but follow rules of natural justice.

It's clear case of deficiency continue the same.

It will be on the amount you paid to builder of it is more that 1 crores then jurisdiction will be National Consumer forum.

Prashant Nayak
Advocate, Mumbai
28075 Answers
93 Consultations

4.4 on 5.0

1. If this builder is having a branch office in Delhi and it was this Delhi address which was mentioned on the 1st payment demand letter, this case is maintainable before State Forum, New Delhi.

2. This case is proceeding as the desired pace. If you want this dispute to be decided expeditiously, you can withdraw this case from the consumer forum and file it before RERA.

3. No point in approaching the NCDRC now. NCDRC is equally slow.

Vibhanshu Srivastava
Advocate, New Delhi
9441 Answers
251 Consultations

5.0 on 5.0

Your lawyer is right u can file the case in Delhi.

U will surely win the case if ur provided information are right.

Subhendu Ghosh
Advocate, Barrackpore
234 Answers

4.0 on 5.0

1. If at any time during the project the office of the builder was at Delhi then the case can be filed in Delhi. there are various judgments in this regards.

2. It is not in progression with the right pace, ask your lawyer to be more active.

3. Ye obviously, if the value of the flat in more than 1 cr then it will be filed before National consumer Forum in light of the judgment passed in Ambrish Kumar in 2017

Regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

1. Well first of all if the total cost of the booked unit is around 1.6 cr., the pecuniary jurisdiction will be of National Consumer Dispute Forum and not state commission. As mentioned by your lawyer that if the case has been on Evidence stage, that means the state commission has accepted its jurisdiction based on the actual amount paid by you and you can continue therein.

2.The case is going on the right pace as it usually takes this much time for such disputes considering the hefty number of cases going on in state commission and usually 2-3 months long dates are given. The time taken in proceedings have nothing to do with the Buyer's agreement been signed or not as it will still follow the whole procedure of pleadings and arguments.

3. if you are not satisfied with the current status of the matter, you can always withdraw the matter and file it again in NCDRC, but you should keep in mind that then you have to again follow the whole procedure which will be time consuming.

Further, you can contact me if you have any other query along with other details such as case name, number, project name etc.

Pratibha Singh
Advocate, New Delhi
1 Answer

4.0 on 5.0

Hello good evening,1) Firstly , if the lawyer of builder has filed an application for objecting the jursidiction of Delhi, it has to be confirmed by you what order has been passed by the court in the said application..if the application is still pending then the case is still at its initial stage...2)Now if we talk about the jurisdiction ,the location of property or the builder office or the place of execution of initial agreement has to be seen in determining the jurisdiction..3)you can approach national forum if the compensation amount exceeds 1crore..however it is advisable to directly file a petition in supreme court by withdrawing your complaint from the consumer forum

Hemant Chaudhary
Advocate, Gurgaon
4626 Answers
67 Consultations

4.9 on 5.0

with due respect to your lawyer it can be said that he misled you. as the office of builder at the time of filing complain is at panchkula, you have no other alternative buy to file the complaint at hariyana state forum. one thing you may be missed. when the project is at surat, obviously the builder has a site office at surat, if it is so, why did not you file the complaint at surat state forum. you have no other alternative but to withdraw the complain from delhi and relodge at hariyana or surat. if you continue the complaint upto order you will loss everything.

for information regarding your case you have to search confonet website not at "cms.nic.in" .

further if your purchase price of the flat is 1.6 cr then you are entitled to lodge the complaint at national commission but not based on current market value of the flat.

Manish Paul
Advocate, Kolkata
287 Answers
2 Consultations

4.9 on 5.0

1. The case can certainly be filed before the Consumer Forum at Delhi if the seller has an office at Delhi and has claimed payment to be made to or sent to their Delhi office.

2. Cases at Consumer Fora takes least time in comparison to cases filed before the Civil Courts. You shall have to bear patience.

3. Since your claim is for more than Rs. 1 Crore, you should have filed the case before the National Consumer Dispute Redressal Commission and I fail to understand as to how the State Consumer forum has accepted /admitted the case at the time of filing it.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

1. Unquestionably, the case can be filed in New Delhi if the builder has an office in Delhi and the first demand letter was issued by the builder from Delhi.

2. Furthermore, in view of the fact that the claim amount is more than 1 crore the exclusive jurisdiction vests in the National Consumer Forum. How the State Consumer Forum registered the case in the first instance is beyond my comprehension. I hope you have not missed out anything in your query. You are at liberty to withdraw the case from State Commission to file it in National Commission.

3. The cases in the consumer forum are more or less decided in the same time frame as civil courts. Once oyu have started the process you have to bear patience.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1) jurisdiction depends upon reliefs claimed

2) in your case you ha v e claimed refund from the builder of 30 per cent amount paid by you

3) as reliefs claimed is more than Rs 20 lakhs national consumer commission wound have jurisdiction

4) if you withdraw and file case Afresh it would be fresh case

5) builder can file appeal against order of NCDRC

6) litigation fees vary depending upon Lawyer engaged by you

7) disposal of case depend upon pendency of cases in NCRDC

8) number of lawyers on this website from Delhi having good ratings contact any of them

Ajay Sethi
Advocate, Mumbai
89045 Answers
6352 Consultations

5.0 on 5.0

Y r u trying to defect ur case by withdrawing and filing again??

It will cause technical defect and u will loose the case.

If state forum have accepted it case then it has jurisdiction to try that case. If the state forum transfer the case to national forum then there will be not defect

Subhendu Ghosh
Advocate, Barrackpore
234 Answers

4.0 on 5.0

1. Does the property price is the eligibility for NCDRC or the amount paid to the builder which is my case wherein 30% of the property price of 1.6 cr is been paid/collected during prelaunch before construction. - The compensation sought is the criteria to decide the pecuniary limits and if you have filed a complaint for a damages of 1.5C, then NC will have the jurisdiction.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1. Property price is the criteria

2. It will entirely be a new hearing again, further appeal will lie to the Supreme Court.

3. This I am not aware of

Regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

1) you can go with National Consumer Forum at Delhi.

2) It will held as National Consumer Forum and different lawyer has different fees.

3) check on Google against Vatika for Tranquil heights project and builder and their partners name.

Ganesh Kadam
Advocate, Pune
12420 Answers
193 Consultations

4.9 on 5.0

1. Where is the flat proposed to be constructed.

The question is that you might have paid the consideration amount from a foreign country also but it does not means that you can file a case in that country.

If the project is in Delhi, then you can file the consumer case in Delhi.

If the builder's demand letter bore Delhi address and the further correspondences had Delhi address then your case in Delhi is justified and maintainable.

2. Your claim is justified, i.e., the builder cannot include the clauses on his own will and wish.

The BBA should not be lopsided and the conditions are to be acceptable otherwise you can always cancel the booking and claim refund with interest.

3. If this is coming under pecuniary jurisdiction of the national forum, then you can approach the national forum.

T Kalaiselvan
Advocate, Vellore
79208 Answers
1614 Consultations

5.0 on 5.0

1. If your claim amount is less than the pecuniary jurisdiction of the National Commission then you may not be eligible for filing the case before National commission.

2. If you withdraw it from Delhi state commission and file it before NCDRC then the proceedings will start afresh.

Since the claim amount is less than Rs. 1 crore, the builder will again raise the same point of jurisdiction and may request the National commission to dismiss the same since it is not falling within its pecuniary jurisdiction.

Why do you withdraw the case before the Delhi commission?

The Delhi state commission would not have taken this case on its file if there was a dispute in the jurisdictional point of view, moreover as your advocate mentioned that it is coming up for evidence or trial, why dont you better continue it in the same forum.

3. This you have to look it personally, no suggestions can be made on this.

T Kalaiselvan
Advocate, Vellore
79208 Answers
1614 Consultations

5.0 on 5.0

1. The claim over Rs. crore and above is the criteria for filing the case before the National Commission and not the price.Generally the claimants raise the amount to more than Rs.1 Crore by adding damage, interest, cost etc. for filing before the National Commission.

2. If you can not raise your claim to Rs. 1 Crore convincingly then there is no point in withdrawing your case filed before the State Commission. The NCDRC decisions can be challenged before the Supreme Court only and the cost will vary from lawyer to lawyer and it should be more than Rs.1 to Rs.2 lakhs as estimated ordinarily.

3. There is no guarantee that a reputed builder will not change. You shall have to google search your lawyer to file your case.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

Ask a Lawyer

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