• Refund of Amount paid

Dear Sir

I bought a shop from my builder. I paid entire money Rs. 37 Lakhs on installments basis. But when the shop got constructed builder increase the area to double for which I was asked to pay further consideration. However such amount was beyond my capacity. So i sent a request for cancellation and refund of my money.

Builder did not replied for such email and then I filed proper letter in hardcopy to him. After that he told me that he will pay money after my shop got resale and that also according to the amount received by him from the new buyer. It means if new buyer pays in installment then he will pay to me.

We agreed for that also the shop got sold out. Till now he has paid me  14 Lakhs saying that new buyer is paying on installments. In the meanwhile I came to know that new buyer has already paid entire consideration to builder and builder also gave possession letter to new buyer. Whereas the original contract with me still not got cancelled.

Now when we discussed the issue builder said he got the entire money but he will pay us in installment and thats also after we return back him original contract. Builder said that we may file a letter to him acknowledging the original contract has been return and can also mention conditions therein for payment.

I told him that I will go to the court treating it as fraud then he simply says that he has my email & letter asking for refund so he will produce that in support.     

My question is can I trust on builder and return the original agreement with filing a letter. If yes what should be the contents of such letter and in case builder defaults whether such letter can be produced as evidence in a court of law 

or  

should I go to the court directly for getting the refund.
Asked 2 years ago in Property Law
Religion: Hindu

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16 Answers

1) builder could not have increased area arbitrarily without your consent

2) you had paid full consideration should have sued the builder to deliver possession of shop

3) since builder has failed to refund your full money file complaint against builder before consumer forum seek refund of money paid with interest . mention you bought shop for earning your livelihood

4) also claim litigation costs

5)you can return original agreement provided builder is willing to give demand draft for balance amount payable by him

Ajay Sethi
Advocate, Mumbai
79270 Answers
4742 Consultations

5.0 on 5.0

You can do the following:

1. First file a legal notice to him drafted by a lawyer;

2. Say that the builder is liable to pay you under UP Shops & Establishments Act 1962;

3. Say that you should get the rest of your money and cancelled agreement copy in your hands;

4. Also say that if the builder does not concede to your requests then you will file file a suit plus seek maximum compensation including damages etc.

5. Then method of last resort, you can file a suit in the relevant court.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

First of all do not return original agreement till amount entirely Is repaid to you. Lodge a complaint with police under cheating. If he produces letter where you asked him to repay money he will be caught since he has not paid entire consideration which amounts to cheating. Since you had not given him in writing any agreement authorising him to sell the property for which you paid money.

File a consumer complaint against builder seeking for damages.

Send him legal notice and also file suit for recovery of money.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Dear Client,

Above act is cheating, u should file criminal complain. Hire some good lawyer, even u can claim interest on refund.

Don`t give him original documents.

What is terms of default in agreement and what documents executed.

Yogendra Singh Rajawat
Advocate, Jaipur
21402 Answers
31 Consultations

4.4 on 5.0

He couldn't have unilaterally increased the area of the shop without taking yor consent and slapped the additional burden thereof upon you.

No need to return him the original contract.

Approach the RERA/Court seeking refund.

Vibhanshu Srivastava
Advocate, New Delhi
9126 Answers
179 Consultations

5.0 on 5.0

Hello sir , it is advisable not to return the original documents without receiving the refund amount .. You can handover the same , when he gives you the final amount .. Incase , after returning original documents he refuse for payment, then we will be retrained t proceed legally agianst him ..

Hemant Chaudhary
Advocate, Gurgaon
4595 Answers
41 Consultations

4.9 on 5.0

Firstly the builder cannot sell the shop allotted to you to another until and unless the existing agreement between you and him has been ended.If he is not paying you the whole earnest money then just make a FIR against the builder stating that as per agreement you had to purchase a shop constructed by that builder but later he increased area and purchase price so you refused and claimed your deposited money back then he anyhow kept the payment pending on the ground that when such shop will be sold then he would pay the money but in spite of the sale of such shop he did not paid you your deposit amount and now giving threats and abusing you.

You may also later file Suit of money decree for earnest money in civil court.

Mayank Srivastava
Advocate, Allahabad
61 Answers
18 Consultations

5.0 on 5.0

Hello,

If would not advise you to return the original agreement to the builder at this stage, there is no point in trusting the builder since he is already playing fraud with you.

You must immediately approach the court and also to create pressure you may file an FIR on him for fraud and cheating.

Regards

Anilesh Tewari
Advocate, New Delhi
17847 Answers
312 Consultations

5.0 on 5.0

Dont return the original sale agreement, instead you can file a money recovery suit agaisnt him for recovering the balance amount or can drag him to consumer court for deficiency in service and for the consequences thereon..

You can approach police for cheating offence, but if he is influential, he may turn the table against you, hence you got to be careful about that aspect.

T Kalaiselvan
Advocate, Vellore
69287 Answers
929 Consultations

5.0 on 5.0

1. I am assuming that you have a registered agreement for sale executed with the builder.

2. I fail to understand as to how without first cancelling the agreement with you, the builder sold the property to another purchaser and that purchaser too purchased the property. Generally a purchaser before buying any property from builder causes a search to be done from the office of the sub registrar to check whether the builder has created any prior rights for the property which this purchaser intends to purchaser.

3. Anyway I suggest you sign a formal deed of cancellation with the builder and get this deed registered.

4. Since no transfer of property happens through a cancellation deed, there is no stamp duty or there will be nominal stamp duty.

5. In this deed you mention how the builder has to make repayment of the moneys paid by you to him.

6. Also record in the deed that the original sale agreement will be handed to the builder only on the builder simultaneously repaying your entire money.

7. I dont understand why on earth you agreed for refund in installments. Anyway talk to the builder and tell him that since he has already received full consideration from new buyer, in all fairness, the builder should also repay you in one shot.

8. No need to go to court for trivial matters.

Yusuf Rampurawala
Advocate, Mumbai
5757 Answers
35 Consultations

5.0 on 5.0

Don't trust on builder. Approach Consumer court. Even if you seek refund there is no issue. You are legally entitled to the same. He will pay the balance amount with interest to you.

Prashant Nayak
Advocate, Mumbai
22417 Answers
49 Consultations

4.4 on 5.0

if builder is ready to give undertaking then let him give such undertaking to the court

that will be binding on him and the chances of his breaching that undertaking will be lessened otherwise he will become liable for contempt of court

Yusuf Rampurawala
Advocate, Mumbai
5757 Answers
35 Consultations

5.0 on 5.0

1) accept demand draft for 50 per cent amount and balance in instalments

2) if builder defaults you can sue him to recover balance money based on undertaking given by builder

3) undertaking should mention total amount payable , amount to be paid per instalment , period within which full amount would be paid rate of interest to be paid etc

Ajay Sethi
Advocate, Mumbai
79270 Answers
4742 Consultations

5.0 on 5.0

If you trust him, you can go ahead with the arrangement that he's suggesting you. But, my personal says you just can't trust these people. Just in case his proposal suits you, sign a memorandum of understanding with him, which must be duly executed.

Vibhanshu Srivastava
Advocate, New Delhi
9126 Answers
179 Consultations

5.0 on 5.0

You can accept the 50% amount that he is ready to pay now and enter into an agreement for the balance of amount with the term and period of repayment including mode.

The agreement should clearly mention that this has been entered into for the repayment of the balance of amount so that this acknowledgment will make him liable for the future litigation in this regard if he fails to honor the commitment

T Kalaiselvan
Advocate, Vellore
69287 Answers
929 Consultations

5.0 on 5.0

Yes it will constitute a legal document.

Else, you may file a case, let the builder appear and let the builder give this undertaking before the court so that the same is decreed in form of the judgment.

Regards

Anilesh Tewari
Advocate, New Delhi
17847 Answers
312 Consultations

5.0 on 5.0

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