• Builder has failed to deliver possession of apartment

I had booked a flat on 2nd October 2017. While booking the flat we had noticed certain issues with the flat and informed the in charge person. He told us that, the building is under construction, only 90% of the work is completed and other work will be completed at the earliest. Before handling over /registrations all the issues will be rectified.
 
My home loan was sanctioned on 6th December 2017. I had informed them, that we were ready for immediate registrations since we wanted to shift immediately. December end when I contacted them and asked for the status, they told me to send an email, which was sent on 1st January 2018. On 5th January 2018, i received an email promising to complete the work at the earliest. On 12th February 2018, i visited the flat no work was done has assured. On 27th February 2018, I call the head office and informed them about the issues, they told they will get back to me. But till today nobody has provided any information. I am already paying monthly EMI from January 2018 till date.
 
Since the builder has failed to deliver the possession of apartment. 
1.The agreement does not specific deliver of possession of apartment date.
2.What would be the maximum time I can give the builder to hand over possession? 
3.Can I cancel the flat and ask for refund the booking and loan amount. 
4.Ask the company has to bear the other monetary losses which I will be incurring because of availing loan for the said flat.
5.What is the consequence from the bank side towards me, since I have availed the loan and started paying EMI. Can I cancel the loan?
Asked 4 years ago in Property Law
Religion: Christian

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12 Answers

1) if agreement is silent on date of delivery of possession wait for period of 3 years for builder to deliver possession of flat

2) you cannot cancel the booking and seek refund as no period for completion is mentioned in your agreement

3) if you cancel the booking you would not get full refund of your money

4) you are liable to pay bank EMI as loan has been availed by you

5) dont make the mistake of cancelling the loan

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

Sir, first of all I would advise you to send a legal notice to the promoter, specifying that they had promised to handover the flat to you in a specified time frame. Please state that if they fail to do so, you will approach the consumer forum. You can approach the consumer forum for claiming compensation. Please talk to the bank for cancelling the bank loan. You may get in touch with us for further clarifications

Abhishek Dutt
Advocate, Kolkata
31 Answers
1 Consultation

4.0 on 5.0

1. Even if the date for delivery of possession is not specified then also the builder is liable to complete the work within a reasonable point of time.

2. The reasonable time to complete the constructions should not be more than 6-8 months.

3. Yes you can cancel the agreement and ask for refund of money along with interest.

4. The damages and refund with interest is be borne by the builder or the company.

5. Since you have availed the loan and have been paying the EMI it is better to wait till the constructions is complete.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
407 Consultations

5.0 on 5.0

If the bank has disbursed the entire loan amount, the builder is liable to come forth and register and hand over the possession of the flat in your favour.

If the sale and construction agreement does not specify a date for completion or possession, then see the offer document i.e., booking form to ascertain the date of possession, this will usually be with 3 or 6 months grace period.

Now if you want you could seek cancellation and refund of the entire amount together with interest and compensation and other incidental charges that you have incurred,

Apart from this you could also seek the courts indulgence to direct the builder to come forth and deliver the possession within a time (say 1 month or 2) to complete the pending works and deliver possession, along with delay compensation (if specified in the construction agreement only), in either of the above two options, you are duty bound to pay the EMI's as the bank in good faith has disbursed your loan amount in favour of the builder on your instructions. Therefore cancellation of home loan is ruled out.

If you wish to exercise any of the above options, you will have to get issued a legal notice to the builder and give him 07 days time to comply with your demands, failure on the part of the builder to comply, you could approach the consumer court.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

1. In the absence of any specific time for completion of construction and handing over possession, the correspondence from the builder side about this may be taken as evidence for this.

2. You can issue a notice with15 days time for this.

3. If you feel this to delay further and there is no respite in the near future then you may decide about cancelling the booking.

4. You can make a demand for that, let the builder give a reply.

5. If the booking is cancelled then you can intimate bank about this and cancel the loan observing necessary formalities.

T Kalaiselvan
Advocate, Vellore
79184 Answers
1611 Consultations

5.0 on 5.0

1. If the agreement is silent on the date of handover of possession, then check the disclosures made by the builder on the RERA website for the date of completion of the project and handover of possession. (I am assuming that the project is RERA registered).

2. Maximum time will be as agreed in the agreement for sale or as disclosed on RERA website. If the builder has issued you an allotment letter, then that will form an agreement for you. Check if any date is mentioned in the allotment letter. So if there is any such date, then the maximum time to handover possession will be the date mentioned in the agreement/allotment letter or the disclosure made on RERA website, whichever is earlier. Generally the authority follows the date mentioned in the agreement.

3. Yes you can

4. Yes you can claim all the monetary losses since the builder is at default.

5. The loan must already be sanctioned and the loan amount disbursed to the builder. Upon cancellation, you can claim that amount plus the interest you paid on the EMIs plus compensation plus all charges like stamp duty, registration fee, etc. borne by you.

6. File an online RERA complaint. Give the facts in simple words and be precise. The authority will issue notice to the builder. The builder will either plead guilty or not guilty. If he pleads not guilty, then he will be asked to file his written say. You can rebut that written say with leave of the Tribunal. Thereafter the matter will be heard for arguments and then final order. All this happens pretty fast and not like what happens in regular courts.

Yusuf Rampurawala
Advocate, Mumbai
6990 Answers
79 Consultations

5.0 on 5.0

hese are my following suggestions to you:

1. You should collect the papers evidences relevant to your case;

2. You should collect evidences of advance payment made by you, including the agreement copy, make sure it is signed by both the parties, the banking transaction

showing that you paid the advance amount for the booking;

3. You should write a personal letter to the the builder asking him to not back out from the transaction, otherwise you could take legal steps;

4. If they still don’t respond, then issue a legal notice through a lawyer to them stating that you have been wrongfully been cheated by the builder;

5. You can also file a complaint before the RERA authority if the project is RERA registered;

6. Then last stage you can file a case in court whether a suit or consumer forum or an FIR in police station

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

It is settled law that if exact time of completion of work is not mentioned in the agreement then the time for completion of the work should be reasonable and in any case it shall not be exceed more than 3 years from the date of commencement of the project. Therefore you should calculate the reasonable time for completion of work and handover the possession to the flat owner. If your building does not disclose final date for completion of work then you should prefer a claim before the consumer forum. In this scenario you have right to cancel this flat and stop the EMI. The consumer forum is empowered to recover the EMI paid by you in this three or four months as a compensation.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Dear Sir

You need to issue a consumer notice and file the consumer complaint.

1.The agreement does not specific deliver of possession of apartment date.

- Needs to look into the document

2.What would be the maximum time I can give the builder to hand over possession?

- Notice period 15/30 days

3.Can I cancel the flat and ask for refund the booking and loan amount.

- Yes you can

4.Ask the company has to bear the other monetary losses which I will be incurring because of availing loan for the said flat.

- Yes. Company will bear your EMI and also rent your are paying till the possession is handed over.

5.What is the consequence from the bank side towards me, since I have availed the loan and started paying EMI. Can I cancel the loan?

-You can. But you decided first to have the flat or not

We deal against well known builders in consumer court/police and other authorities.

Feel free for any assistance for support

Shettar SS
Advocate, Bangalore
182 Answers
1 Consultation

4.4 on 5.0

Dear,

First send a written complaint about your issue in their office and if your problem remains the same

then file a consumer case against them for amount you given, for mental harassment, for every problem

you suffer with interest.

Any dispute over rs.1 crore can be filed before national commission

dispute over 20 lakh but below 1 crore can be filed before state commission

dispute below 20 lakh filed before district commission.

No time limit mention in books.

cancel your flat after court order only.

sent notice and file case afterwards

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

Hi,

It is strange to hear that there is no specific date fixed for possession of flat. You are suggested to send a legal notice to builder and ask the possession and also for paying for the damages suffered by you.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Generally the agreement specifies the time limit for possession. Presently under rera builders need to complete thier construction in fixed timelines mentioned on rera websites. You can cancel the and seek refund. Yes you can file deficiency in service before consumer court and claim compensation. You need to pay the amount and cancel the loan.

Prashant Nayak
Advocate, Mumbai
28058 Answers
93 Consultations

4.4 on 5.0

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