• Cancellation before agreement

Dear sir , 
 I boooke a flat in a pre launch offer paying 2 lkh and fallowed by 3lkh +service tax . 
At the time of booking they commited on handover by Dec 2019 .After my booking it is almost one and half years now builder is calling for aggrement and they have mentioned feb 2021 as hand over date . Apart from this agreement dosent mention any undivided share and i am not ok with the terms of agreement from the builder which was not communicated to me at the time of booking . I have decided to cancel the booking and asked the builder to refund the money as he project is getting delayed .
The builder has replied he would be deducting 15% on my booking amount of 5 lkh + service tax as per booking claus . 
Kindly suggest me what should i do now ?
Asked 4 years ago in Property Law
Religion: Hindu

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12 Answers

Hello sir , builder cannot deduct the amount as he has defaulted on his part .. You are entitled to get the entire booking amount refunded alongwith interest of 18 percent per annum .. It is advisable to serve him a legal demand notice for refunding the amount and if fails to comply file a complaint in the Consumer forum ..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

You can contact me in person for drafting of legal notice to the builder .. Thank you

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Do you have any documentary evidence that possession was to be delivered by December 2019 ?

2) if so and builder has extended date of delivery of possession you are entitled to cancel your booking and seek refund of money paid by you

3) if builder fails to refund file complaint before consumer forum and seek orders to direct builder to refund your money with interest

Ajay Sethi
Advocate, Mumbai
87893 Answers
6207 Consultations

5.0 on 5.0

The deduction is exorbitant, you can fight for it.

Since this is the fault of the builder you can take up the matter with RERA also for relief.

You first communicate your decision by sending a letter by registered post to cancel the booking and demand refund of booking amount citing that the inordinate delay in completion of the construction as a reason for cancellation besides other reasons therein.

Let him give a reply based on the booking clause which is not maintainable in law since it is not an agreement.

You can drag him to consumer forum seeking relief and proper compensation for the harassment as well.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

A. First, you need to get clarity on the project as to whether this project has been registered under the Real Estate Act, 2016 if the project status is ongoing?. To verify the same you can visit http://rera.karnataka.gov.in/

B. As per the RERA Act,2016, the builder cannot confiscate amount more than 10% of the total consideration by dint of cancellation flat by virtue of his own fault.

C. The builder has bounden duty to follow the RERA rules and regulation strictly and shall mention carpet area of the flat and undivided share in the Sale Agreement.

D. You may issue a legal notice towards cancellation of booked flat and insist to refund the entire amount by virtue of promissory estoppel. Further, you may file a complaint before the Consumer Forum or initiate summary legal proceedings to recovery of the money or lodge the complaint in RERA website by paying prescribed fee.

B.T. Ravi
Advocate, Bangalore
943 Answers
96 Consultations

5.0 on 5.0

1. When was the flat booked by you?

2. Was the commitment to handover the said flat to you made in writing or verbally? Is there any evidence that the builder had made the said commitment?

3. In the brochure issued by the builder before collecting the booking amount, was there any mention as to when the construction will be over and when the agreement will be executed? Or was there any term mentioned in the said brochure which contradicting the terms mentioned in the agreement he wants to execute now?

4. Undivided share of the land is owned by default for want of which.you can not claim to cancel the booking without paying the cancellation amount.

5. After detecting the the term/condition mentioned in the written commitment or application has been violated by the builder, you can cancel the booking and ask refund of the amount paid by you with interest without any deduction.

6. If he does not comply with, then file a complaint case before the local District Consumer dispute Redressal Forum against the builder alleging deficiency in service and unfair business practice demanding refund of the entire amount paid by you with interest, damage and cost.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1) he can deduct only when he has made sale deed or agreements with you otherwise not.

2) please ask him to refund whole amount, if he is denying, than go with consumer forum of your city.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1. What is the date of delivery of possession mentioned in the agreement or receipt, if any? Oral commitments are not enforceable as they cannot be proved.

2. This practice of signing the agreement after the payment of advance is attributable to the ignorance of prospective buyers. This is how the builders fleece the buyer and then beat him around with a carrot stick.

3. Not mentioning the undivided share of the land is not a ground for cancellation by you.

4. If and only if the any of the terms mentioned in the agreement or booking receipt or any other communication made in writing is violated then alone you may cancel the agreement through a lawyer's notice and seek the refund. If he does not refund then a complaint case can be filed in the District Consumer Forum.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Consumer Protection Act gives end consumers certain rights against exploitation. A consumer can take help of this Act for claiming compensation in case of project delays. According to this Act, the builder is liable to refund the amount paid with interest (for the period of delay) if there has been a breach of contract. A promoter, who constructs or intends to construct such blocks of building of flats, shall specify in writing the date by which possession of the flat is to be handed over. Default would attract penalty under Consumer Protection Act.

Hence . as per law your builder has committed the offense of deficiency of services after extending the date of handing over the date of possession. So you have full right to cancel the booking and the builder is entitled to pay full amount paid by you including compensation for harassment , mental agony caused due to delay on the part of builder.

You should send a notice to the builder, claiming the refund of the amounts paid along with interest and damages. If the builder denied to refund the same within stipulated time of 15 days then, you should file a consumer complaint for ‘deficiency in service’ as defined under the Consumer Protection Act, 1986 against the builder.

Recently Unitech Builder was penalized Rs 3 crore by the National Consumer Dispute Redressal Commission, for delay in giving possession of its flats.

You should give your plea that you was planning your life to be shifted by 2019 and further you are not ready to wait and after knowing the extended deadline to 2021 , you have no faith upon him and further facing mental tension and agony.

Good Luck and dont forget to positive Rating

Mohammed Shahzad
Advocate, Delhi
9872 Answers
121 Consultations

5.0 on 5.0

Send a legal notice to the builder seeking refund of your dues, that's because due to his fault you are compelled to back out from the project.

In case the builder does not adhered to the legal notice, file a case before RERA/Consumer Forum.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Client,

If default is from builder side and u have document which show - schedule of payment and completion of project, than complain to RERA for recovery of earnest paid. Effective remedy.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Hello,

File a complaint before RERA.

Before filing the complaint send a legal notice to the builder.

He does not have any right to refund the money, if he is at fault.

At the time of booking they commited on handover by Dec 2019: THIS HAS BEEN GIVEN SOMEWHERE IN WRITTING

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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