• Legal option available for layout change without intimation

I have bought a under construction apartment a couple of years back against a bank loan and almost 90% of the payment is already released as per the stage of construction. Recently I have visited the flat and found that they have done some major changes in the layout which was proposed and mentioned in the agreement without any intimation or information to us. They didn't even provided us a final sanction copy. Bank has also released the payment based on my request without any kind of physical verification. I am following up with the developer since last few months. They conveyed that they will look into the matter and provide us the refund if there is no alternate solution available. They are now coming up with the below clause which is mentioned in the agreement :

"The Purchaser/s hereby irrevocably and unconditionally agree/s and give/s his / her / their / its specific, full, free and unqualified consent and permission to the Developer for carrying out alterations, amendments, variations, modifications and/or additions in respect of the plans, designs and specifications of the said new buildings"

But at the same time the below statement is also mentioned there "to the extent such alternation(s), amendment(s), variation(s), modification(s) and/or addition(s) does not hamper the interest of the Purchasers with regards to the said apartment". 

Since there is no option to attach the document I can't attach the particular page of the agreement.

I would like to know what option do I have under the circumstances to cancel the allotment and seek the refund and how long it might take.
Asked 4 years ago in Property Law
Religion: Hindu

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15 Answers

1. well,now it is to be seen whether such change ahs indeed hapendred your choice or interest in the flat or not. To get this answer it is be further seen what actually prompted you to go for this purchasing this flat so the change of layout has damaged this intrerst.

2. If that is so then you have got the right to cancel agreement with full refund along with interest. The damages and compensation is to be paid extra.

3.if the developer refuses to do so you can then see the intervention of the consume forum praying for such relief and considering the merit of the case the Forum is likely to grant you the reliefs as you seek for in the complaint beofre it.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear Client,

Since there is no option to attach the document I can't attach the particular page of the agreement. -- What this mean.

After RERA coming into force, all under construction site, required to be registered with it.

Issue them legal notice for refund of paid amount - for major altercation without your notice. Failure to which , complain to RERA, effective remedy.

Another option consumer complain.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You can cancel the agreement and seek refund as major changes have been made in layout without your consent

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

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

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

Number of lawyers on this website from Kolkata

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

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

Hello,

Filing a case in the consumer forum will take 1.5-2 years to get decided.

Let me know if you want me to refer you an Advocate at Kolkatta or you may contact Advocate from this pannel who is based in Kolkatta.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. send a legal notice to the builder alleging that he has already deviated from the sanctioned plan and also the agreement while constructing the said flat for which they now want to take a blanket approval for having already made the said change without your consent which is not acceptable by you for which you are cancelling the sale agreement entered in to by and between the builder and demanding refund of the amount paid by you with interest, damage and cost. You shall have to specify the amount the builder shall have to refund to the Bank directly with interest, within next 30 days.

2. If he refuses or fails to refund you the said amount, you can file a complaint case before the local District Consumer Dispute Redressal Forum against the builder alleging deficiency in service and unfair business practice claiming the amount paid by you and the bank with interest, damage and cost.

3. This is a good case to win.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. It is a clear case of deficiency in service and unfair business practice on the part of the builder.

2. If your said flat is located any where near New Town, Rajarhat or Dum Dum area, you shall have to file the complaint case before the District Consumer Forum at Barasat.

3. If the value of the amount claimed exceeds Rs.20 Lakhs, then you shall have to file the case before the State Consumer Dispute Redressal Commission at Kolkata near New Market.

4. If the value exceeds 1 crore, you shall have to file the case before the National Commission at Delhi.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. The builder has deviated from the sanctioned plan which was placed before you while agreeing to buy the said flat.

2. You have all the rights to cancel the agreement for his making the said deviation with out your consent.

3. Arrange to file the complaint case as advised in my earlier post at appropriate Forum/Commission depending on the amount claimed to be refunded.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

If ether is a deviation in the approved plan then the construction itself can be held illegal and liable to be demolished by authorities concerned.

However from your contents it can be understood that there are minor changes which do not attract ,major violations in the construction and such deviation are within the permissible limit

Even then it is your decision whether to continue with project as it is or to cancel the booking citing this variation as a reason as the same was not intimated or take your consent invoking the clause in the agreement what you have mentioned in your post.

You can very well communicate your decision to cancel the booking and this communication to be sent to the builder by registered post or to be handed over in person under acknowledgement.

You can seek refund and also intimate bank about this and take steps for cancelling the loan as per loan agreement conditions.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Could you please suggest how long will it take to get the matter settle at the level of consumer forum and also please suggest a lawyer who can handle this matter. I would prefer some one who is located near to Kolkata Airport area.

Approaching consumer forum for relief and remedy should be the last resort, before that you give a chance to the builder by sending a legal notice communicating your decision to cancel the booking for the cited reasons and demand refund of the entire amount within a time stipulated therein.

You can plan to approach consumer forum after exhausting the remedy available with RERA (if it is effective in your state).

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

This could not have been done without your consent in terms of the WB Apartment Ownership Act.

The builder has breached the above act, besides the agreement which he entered with you.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Send a legal notice to him, seeking refund of your deposit together with interest.

If no heed is paid to the legal notice, approach RERA/Consumer Forum.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Hi,

The finalisation of case depends on parties to the cases and the burden on the court.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Dear Sir,

You may call upon your builder to cancel the contract and refund the amount with interest or you may approach Consumer Forum and seek refund with interest and compensation. Apart from this you may also considered my views that the possession of the said apartment may be taken and start your litigation for only damages/compensation otherwise you will be deprived of enjoying the property.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

It's better if you visit Consumer Forum office. In Consumer cases, even the consumer himself can file and take steps for his case.

Moumita Mitra
Advocate, Kolkata
366 Answers
1 Consultation

4.0 on 5.0

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