• When to file case for late delivery of flat

Dear Advocates,

I bought an apartment from a reputed builder few years back. The possession was supposed to happen by March 2014 according to the agreement. After that a grace period of 3 months up to June 2014 is provisioned in the agreement for providing delivery without any penalty. From July 2014 the builder is required to pay penalty for the late delivery of the property @ 9% per annum. 

The builder hasn't delivered the property yet also they haven't paid any penalty yet. The builder is saying that they will pay the penalty along with the possession when they will deduct the penalty from the final settlement charges. At the same time they are not willing to tell how much penalty they are willing to give. The agreement mentions that the penalty will be given along with the final possession of the apartment. 

Another point to note here is that the agreement is void after Dec 2014 because of another clause in the agreement. This clause says that if the builder is not able to give the delivery by Dec 2014, then the builder will return the money to buyers with interest starting Dec 2014 (no interest need to be paid till Dec 2014).

My questions is whether I should wait for the apartment to be delivered and check if the builder has given correct penalty at the possession or should I file a complaint in the consumer court right now demanding the money to be paid for the delay till date and then every subsequent month of delay. The builder is planning to give delivery by June 2015. I am worried that if I file a consumer complaint right now, the builder might get offended and create problems giving me possession or doing registration.

Other option for me is the ask for refund of the entire money with interest starting my payment date till date, now that the agreement is invalid. The agreement only provisions for interest post Dec 2014. Please suggest on this option as well.

Sachin
Asked 2 years ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1. In case of delay, the builder is liable to refund the amount paid with interest (for the period of delay) as there has been a breach of contract. A promoter, who constructs or intends to construct either commercial or residential building, shall specify in writing, the date by which possession of the flat is to be handed over. 

2. The agreement is void if the builder could not hand over the flat by December 2014. However, you may accept the flat even after the said date.

3. Send a Legal Notice through your lawyer to the builder. If still the possession is not granted, then file a case in the Consumer Forum for recovery of money and compensation for the ensuing delay. 

4. Let the builder get offended. If you keep on giving him a long rope he will not deliver the possession for years.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
Hi, from your narration it is clear that there was a delay in possession of the apartment for that you may approach consumer court for deficiency of services and also for refund of the amount with interest.

2. But from your narration you have stated that the builder is likely to deliver the possession in the month of june and if he did not handed over the possession in the month of June also then you can initiate proceedings under law.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) it is in your interest to take delivery of possession in June 2015 . since agreement provides interest for delayed payment would be made at time of possession see whether builder honors its commitments 

2) if builder fails to pay interest then you can move consumer forum against the builder 

3) under no circumstances issue legal notice or file case before consumer forum now . 

4) you should not take refund of money with interest as market rates  for flats would be higher now . you would only get peanuts now
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. Take delivery from the builder,

2. Let him pay any penalty he feels like,

3. Get the flat registered first and get out of tye clutches of the builder,

4. After that file a complaint case before your local District Consumer dispute Redressal Forum alleging deficiency in service and unfair business claiming the amount what as per you the builder should have paid you, interest thereupon, damage and cost.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
5.0 on 5.0
A. Issue a legal notice to the builder to pay the penalty and instruct to the complaince of the agreement to deliver the possession within stipulated time.

B. The builder has bounden duty to deliver the flat as mentioned in the agreement, so the builder nosing takes any action against yourself mere issue a legal notice or file a complaint before the Consumer Forum.

C. Don't cancel the flat because of they have mentioned about the grace period and payment of penalty towards the failure to deliver the flat in time in the agreement. Hence, you would better wait till June 2015 and visit the site and verify the construction of the project and find out how much work has been completed so far. Later, you can take any decision i.e, an approach to consumer forum to claim, penalty or seek instruction for delivery of flat.
B.T. Ravi
Advocate, Bangalore
736 Answers
30 Consultations
5.0 on 5.0
1) take possession of the flat . regsiter flat in your name then file case before consumer forum 

2) cases in consumer forum dont take more than 2 years to be disposed of 

3) registration charges would not be substantial .

4) you would get a better price for your flat too 

5) first option is not a feasible one . once you have sold the flat and flat registered in name of third party you may not get any reliefs from consumer forum 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1.Your first option is very much legal and can be pursued by you provided you do not want to stay in the aid flat and want to sell it off without registering the sale deed in your favour,

2. After selling the property, you can file the consumer case claiming the penalty for late delivery of the possession of the said flat.
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
5.0 on 5.0
1. Unless the property is registered in your favour you cannot sell it. The doors of consumer and civil court are open for you regardless of whether you hold the property after its registration or sell it.

2. The maximum which the builder can do, and what he is entitled to do, is to engage a lawyer to contest your case. The lawyers appear in the court to 'influence' the judge but they do it with their legal acumen. Muscles cannot be flexed against the court.

3. If you sell the property and then move the consumer forum it will be a dispute between you and the builder alone, albeit it may not be possible to sell the property in the first place if there is a dispute pending in relation to it in a court of law. 
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

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