• Refund

I bought 4flat from a reputed builder in Jabalpur Madhya Pradesh in 2012. The projects were running about 2 years late, I bought it in 2012 and was told that it would be ready in 2014. It dragged on till 2016. I live overseas and wasted a lot of time and money visiting and asking for possession, I was told it would be ready every 6months. 

In November 2016 I was told it was ready and I asked for 4 months since I couldn't travel. I also complained about the delay and how he had sold me property for 23lakh each and was selling to others for 17lakh. I asked to either wait 4 months or cancel my flats and give me my money back.

I was sent a letter saying if I didn't give the money in one month they will cancel the flats and keep all my money 86lakh paid out of 92 lakh. I have sending my father and my chacha who are local and we have given run around and been told one month and one more month etc. The flats were rented out to other buyers whose flats were running late. 

The builder is essentially keeping my money and renting my flats and adjusting that in the purchase of the flats that he is selling to other people.

I have sent emails, letters and my family has not visited every few days. I paid everything legally and by check. I am interested in learning about my legal rights and recommendations for legal course of action.
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

Hi,

The main document in this regard is builder buyer agreement and you are suggested to go through the default clause. The builder is supposed to pay you rent and damages for delayed possession etc. Only after going through the agreement, send legal notice to builder for immediate possession and damages/compensation.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1. Were you given an Allotment letter by the builder at the time of booking of the 4 flats?

2. Did the builder sign any agreement with you?

3. Do you have any booking form or any other document containing the terms and conditions of the sale?

4. In india with effect from 1.5.16 a new law known as Real Estate Regulations Act (RERA) has been introduced to safeguard the flat buyers against malpractices by builder

5. Has the project in which you have invested, received Occupation certificate for the new building?

6. The builder has no business to deduct such a substantial sum from the money already paid you

7. He can at the highest deduct a sum which is stated in terms and conditions of allotment letter/booking form/ agreement, in the event you cancel the flat bookings

8. Instead the builder is liable to pay you interest and compensation for the delay in handover of possession as per RERA. This is if you wish to continue in the project

9. If you do not wish to continue in the project, then builder has to refund the entire money alongwith interest and compensation, after deducting from the same the agreed liquidated damages, as per agreement

10. If no agreement is signed with you, then your flat bookings will be governed by the terms and conditions spelt out in allotment letter or booking form

11. So kindly check that and share the same here to enable me to advise you more clearly

12. Also as per Rera, any project which is still not completed and for which no occupation certificate is received, is compulsorily required to be registered with the Rera tribunal and details of that project need to be uploaded on the MP state RERA website

13. Kindly ask your relatives to check the above

14. Meanwhile you will have to issue a legal notice to builder through a lawyer

15. I suggest if the flats are done up, and builder is handing possession to you, then you should accept the possession, with the only condition that he should offer you possession alongwith occupation certificate. It's better to secure something then to fight because these builders are very notorious and leave no stone unturned to harass the ignorant flat buyers.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Issue legal notice to builder to hand over possession of the flat and pay you compensation for delay in delivery of possession

2) if builder refuses file suit and seek court orders to direct builder to handover possession of flat and pay you compensation for delay in delivery of possession

3) please note that your complaint before consumer forum would not be maintainable as you are investor and not a consumer as you have bought 4 flats

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Since builder is providing you services and there is deficiency in service on part of builder.

you can file a consumer complaint for compensation of delay damages and possession of the flat or refund with interest as there is long delay and builder has been doing wrong practice. The consumer complaint in your case will be maintainable only if you show that all 4 flats you took for use not for investment as for investment consumer complaint is not maintainable.

Since amount involved is 86 lakh file before state consumer commission. Pray all the remedy before commission.

Alternatively you can file a recovery suit against builder for breach of agreement as the delay in possession and builder has rented out the flat but recovery suits take time .

So firstly issue legal notice to builder for recovery if you are able to show that you are consumer not investor than file consumer complaint else file a suit for recovery of damages and cancellation of agreement

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You first send him a legal notice mentioning all the events from the beginning and demand penalty for the delay from his side and also mention that he has illegally let out the property on rent without your knowledge or consent and he is liable for compensation towards damages.

You can also inform about your inability to come to India within this short period hence to postpone registration formalities and delivery of possession by few months.

After that, if he is not complying with the demand you can drag him to consumer forum for relief and remedy.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Hello,

Immediately contact some lawyer and send a legal notice to the builder.

If he does not respond to the same then file a case before the RERA.

The acts as being done by the builder are not legally viable.

And since you have purchased 4 flats therefore it is not advised that you file a case before the consumer forum.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You can do the following:

1. You should issue a legal notice against the builder immediately;

2. If the OC has not come, you have the option to file complaint before the RERA authroirty;

3. Nonetheless you must also complain to the consumer forum and demand the money back along with heavy compensation;

4. You also have the option to file an FIR under sections 34, 120B, 403, 405, 406, 415, 418, 420, and 425 of the Indian Penal Code, 1860.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Hello sir,it is advisable to file a complaint at NCDRC ( national consumer forum ,Delhi) and seek refund alongwith compensation...The NCDRC is the highest appellate authority ,and compensation for more then 1 crore are decided by the NCDRC..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Dear Client,

You are running late to get delivery of flats or refund, Consumer case last option, Limitation for filling consumer complain 2 years from date of cause of action arise.

Hire local lawyer and file consumer complain.

Also, file FIR against builder u/s 406, 420 IPC.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1) You can make on complaint to consumer forum and in the RERA office of where do you have purchased the flats local city i.e. Jabalpur.

2) You can also make online police complaint regarding about financial crimes.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

There are lot of ways available to this and claim the amount for late possession if supported in the builder buyer agreement.

It seems that builder is playing with you to ignite for asking the refund and want to resell the flats.

Better idea would be to discuss and adjust the amount to take possession. Other wise state consumer commission can be approached and the complaint me done in RERA.

But all this definitely hold the possession as the matter will be subjudice.

Please take the possession and then go for complaint.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

You can file a complaint under consumer protection Act at state commission for defiency of service.

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

Firslty, if the builder is at his own fault like same in your case, then even if there is no clause in the agreement that if you don’t pay then allotment would be cancelled, would have no meaning in the eyes of law as first fault has made by him.

Secondly, you can then make a representation to them stating the same in the form of legal notice.

Thirdly, then give one POA, and file case in RERA court.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

I think this builder and his particular project must be registered with RERA, since the project is still not complete and hence I am assuming that the builder is yet to procure the completion certificate. Thus, I will advise you to raise this issue in a detailed complaint before MPRERA.

However, before taking the final recourse of approaching RERA, it is advisable that you send a legal notice to the builder and seek your refund with interest

Contact a local lawyer.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Sir,

RERA: Homebuyers to get 10% penalty for delay in projects, but is that enough?

There are a number of clauses in the Act that aims toward protecting the buyer’s interest and envisage a transparent system in the real estate sector.

In a bid to protect the interest of homebuyers as well as weed out non-serious and unscrupulous players from the market, the Real Estate (Regulation and Development) Act, 2016 (RERA) has proposed heavy penalties on builders who will henceforth either delay their projects or won’t comply with RERA norms.

For instance, RERA recommends imprisonment for a term which may extend up to three years, or fine which may extend up to 10% of the estimated cost of the real estate project, or both, in case of non-compliance with the Act. Moreover, in case of any structural defects arising within five years of handing over the possession of project to buyers, developers will be liable to rectify such defects without further charge.

If a project is delayed, which has become the sector norm today, developers are required to pay 10% interest to the buyers on the invested amount as against the Rs 5 to Rs 10 per sq feet penalty contracted in the sales agreement. It may be noted that a majority of developers are currently charging 12% to 18% – going up to 36% in some cases – interest from buyers for any delay in payment, while they themselves usually pay in the range of Rs 5 to Rs 10 per sq ft even in case of a luxurious project, which is not a fair deal to buyers.

However, after coming into force, RERA has raised the expectations of buyers multifold. In fact, the buyers who suffered from the delay in delivery of the projects or the delivered product not being as promised at the time of booking in terms of quality, specification, and carpet area etc. are looking towards this Act with high hopes.

UP has included compounding of offence clause to avoid imprisonment and even the compounding has been limited to ‘maximum 10% of the estimated cost of the real estate project’, which means it may even be zero in some cases. Please read following link:

Big relief to UP builders, Yogi Adityanath government redefines ongoing projects

The Uttar Pradesh government’s real estate rules have amended the definition of an “ongoing project”, allowing a builder to be exempt from the purview of Real Estate Regulation Act (RERA) even if he has just applied for a licence or received a part-completion certificate before the Act was notified.This effectively means that those builders who do not complete projects and leave home buyers in the lurch cannot be penalised as per RERA guidelines.

Clauses related to penalties for non-compliance by developers have also been diluted. While Central RERA recommends imprisonment for a term which may extend up to three years, or fine which may extend up to 10% of the estimated cost of the real estate project, or both, UP has included compounding of offence clause to avoid imprisonment and even the compounding has been limited to ‘maximum 10% of the estimated cost of the real estate project’, which means it may even be zero in some cases.

This is likely to encourage corruption as quantum of money to be paid will be at the discretion of the authority. As was given in the central draft rules and also provided in the final rules, this should be rolled back to match the Centre’s rule on ‘compounding’,” says Abhay Upadhyay national convener of Fight for RERA. As on date, around 834 developers have registered with the portal.

“UP has decided to keep all those projects outside the purview of RERA which have been either issued, or have applied for occupancy certificates. The main problem here is that of delayed possession. Projects that were launched 7-10 years back are still not completed. And because of this clause they will get an escape route. Home buyers who are battling these builders will find no redressal under RERA,” said Indresh Gupta, co-founder, Noida Extension Flat Owners’ Association.

According to industry officials, in Noida alone, around 50 under-construction group housing projects have been delayed by three to four years due to the slowdown in the realty sector. This has affected around one lakh buyers who had invested in projects that were to be delivered by 2012.

In Greater Noida, around 3 lakh home buyers in 63 delayed realty projects are yet to get possession of flats that were to be delivered from 2012. Similarly, 13 realty projects in the Yamuna Expressway industrial area, along the 165-km Yamuna Expressway connecting Greater Noida with Agra, are yet to be delivered.

“By exempting projects for which an application for completion or occupation certificate (CC/OC) has been made on or before the rules are notified, UP has taken a lenient attitude towards builders. A CC is a certificate given by the competent authority that the real estate project has been developed according to the sanctioned plan, layout and specifications as approved by the authority. An OC is a certificate issued by the competent authority to the developer permitting buyers to move into their apartments.

The Uttar Pradesh government’s decision to continue with the watered-down version of RERA rules that were notified by the Samajwadi Party government in October last year, has come as a major setback to home buyers in the state. These diluted rules are far more lenient to builders than those in the central RERA or Real Estate (Regulation and Development) Act, 2016 and therefore make it easier for them to evade the regulator.

Upadhyay of Fight for RERA said the UP real estate rules are a huge let down. “The state rules have redefined ‘ongoing projects’ in direct contradiction to central Act provisions and it excludes many ongoing projects from the RERA ambit as a favour to the builders. If not withdrawn, it will ensure the failure of RERA in providing justice to home buyers of any ongoing project,” he said.

http://www.financialexpress.com/economy/big-relief-to-up-builders-yogi-adityanath-government-redefines-ongoing-projects/787305/

http://www.financialexpress.com/money/rera-homebuyers-to-get-10-penalty-for-delay-in-projects-but-is-that-enough/659011/

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. It was not legally prudent on your part to talk about cancelling your booking of the flats in black and while though informing him that you shall arrive in India for registering the flat after 4 months is absolutely within your right.

2. You shall have to inform him the date of your arrival and ask him to sell you te draft copy of the sale deed for your perusal.

3. On arrival if you find that he is not ready to register the sale deeds for the said flats and also if you find that other people are staying therein, then take photographs of those occupants and then take the following steps;

a. lodge a police complaint against him for cheating you by refusing to handover the flats to you even after their completions and using it for other's occupation.

b. file a complaint case before your local District Consumer Dispute Redressal Forum against the builder alleging deficiency in service and unfair business practice praying for a direction upon him to immediately handover the possession of those 4 flats to you, register the same in your name, pay rent for those 4 flats at appropriate rate applicable in that area from the period when those were supposed to be completed and handed over to you, pay damages with interest and cost.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

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