• Cheating by builder

Hello
I entered into a contract with a builder for the construction of my villa. The term of the contract has ended and he has not completed the work. I have email communication asking him about delays at various stages of the project. He had not improved the pace of the work. He has taken stage payments but has not provided services. He is demanding more money before he will resume work at site. He has not done any work for last 5 weeks in spite of repeated follow ups. Can i terminate his contract and proceed with another contractor since the term of the contract is complete. Will he be able to get a stay order against me for going with another builder? What should I do to protect my interests. Thanks is advance for your advice
Asked 4 years ago in Property Law
Religion: Hindu

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24 Answers

Dear Client,

Instead file criminal complain that he took money and not delivered the villa on given date and demanding more money.

Issue him legal notice for violation of time line and terminate contract forthwith and refund.

Let him approach the court, Possibilities are rare of his success.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Serve builder with a legal notice stating that the since there is delay and the period of contract/ agreement is over you are hereby terminating the contract. Also settle the account of builder with pending dues. Further in notice specifically mention the period of delay and deficiency in services by him. you also have remedy in consumer court and can seek compensation from builder for delay as you are taking services from builder and there is deficiency of services on his part on filing consumer complaint.

if the period is over and he has delayed the work then he has no legal ground to ask for stay. Since the agreement signed is over builder cannot seek specific performance of same.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

If time has lapsed, it means he has violated contract terms and conditions. You can get contract fulfilled by another.

Jaswant Singh
Advocate, Gurugram
926 Answers
2 Consultations

4.8 on 5.0

This is my response to you:

1. You should send a legal notice to the builder asking him to obey the contract otherwise you will employ another builder;

2. Ask him for refund of the money already given by you;

3. If you don't want the money, then nonetheless the builder will not pursue action against you;

4. Once you send the legal notice, the builder cannot take any action against you and you can cancel the contract from your end;

5. You have nothing to worry about, you can terminate the contract from your end.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. If the payments were linked to various stages of construction and if such construction is not completed despite payment, then this is clearly a deficiency in providing service

2. You can terminate the contract through a legal notice

3. Check for any penalty clause in the contract which can be levied on the builder in the event he fails to complete the construction as per the milestones recorded in the contract. Demand that in the legal notice

4. You can file a consumer complaint against the builder for deficient services and seek compensation and damages

5. Even if builder goes to court to get a stay against you, he won't be successful when you inform the court about the incomplete construction despite payment made by you. His case may be dismissed at the threshold itself i.e on the first hearing itself

6. So you can definitely go for a second contractor but before that have the services of the defaulting builder terminated by a proper legal notice

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

It is necessary to peruse terms of contract signed by you with the builder

2) if builder has committed breach of contract you can terminate the contract and sue builder for damages for loss caused by you

3) take photographs of work done so far by the builder

4) builder would not be able to obtain stay order against you

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Hi

In order to protect your interest, you will need to

a) Issue a Legal Notice to the Builder asking him to complete pending works and handover possession of Villa within 30 days

b) Concurrently file a caveat petition u/s 148 A of CPC in the nearest court having jurisdiction(pecuniary and location) against the builder so as to ensure that the builder does not get any stay order against you. Please note pecuniary jurisdiction of courts will be dependent on the penalties claimed by you. Cost of filing a caveat petition (Including typing charges and lawyer fees shall be less than Rs1000-/-) and caveat petition is valid for 90 days from date of filing.

c) On the date of expiry of legal notice if the existing builder fails to complete any or all of the pending works , you should issue a notice of termination of existing contract and in the same notice, you should also demand penalties for breach of contract (Section 73 / 74 of Indian Contract Act will come in to play depending on the construction of your contract).

d) You are free to enter in to a fresh contract with another builder for completion of pending works at your site and claim the costs of pending works from the builder whose contract was terminated.

By issuing legal notice and termination of existing contract after issue of notice to the builder, you would have complied with legal requirements of Indian Contract Act and thereby you will be protecting your interests.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

Before terminating the contract please see the terms and conditions of your agreement with the Builder and if there is sufficient and see if exit class available for you you can send a notice to him and terminate the contract you can also tell him that you are looking for the compensation for the delayed construction work and in case it is not being paid within the stipulated time of the notice you can go to the Court against him and he will be responsible for litigation and legal expenses relating to this dispute.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Firstly send a legal notice he cannot bring a stay rather you can seek for specific performance of contract but since the contract has ended you can delegate work to other contractor. Also seek for damages from the existing contractor for losses caused to you. You can contact me at Mysore.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1) If term of contract is over and the work is not completed. You can go for new contractor for completion of your villa work.

A valid contract is a written or expressed agreement between two parties to provide a product or service. There are essentially six elements of a contract that make it a legal and binding document. In order for a contract to be enforceable, it must contain: ... Intent of both parties to carry out their promise.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

The requisite elements that must be established to demonstrate the formation of a legally binding contract are (1) offer; (2) acceptance; (3) consideration; (4) mutuality of obligation; (5) competency and capacity; and, in certain circumstances, (6) a written instrument.

Here in your case the builder is incompetence and does not have capacity to complete the project after paying the advance consideration

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Dear Sir,

As per terms of your agreement/contract terms you can terminate the contract and ask for compensation too.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Firstly, yes you can terminate the contract, but yes there is also possibility that he may go to court and may get injunction though he should not get it as per the information been provided by you, but it is the pure discretion of judge to decide.

Secondly, that is why I advice you to first file a case for breach of contract on him and then hire new one.

Thirdly, you should also mention in your prayer to continue with the new contractor, and if you found guilty you are ready to pay him the losses.

Which would not happened as he is at fault at his end not you.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

If there is a valid contract entered with him on this, then you may issue a legal notice for his lapses and ask him to reply tht why his contract should not be terminated for his lapses mentioned in the notice.

After that you can terminate his contract and immediately file a caveat petition before the jurisdictional court so that he cannot obtain exparte injunction against you.

After that you can engage another contractor and proceed to resume the constructions that have been stopped .

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

You can do that. If he goes for stay you can challenge it. If you have occurred losses due to his act you can also approach Consumer Court for the same.

Prashant Nayak
Advocate, Mumbai
27232 Answers
88 Consultations

4.4 on 5.0

Firstly, it would be very difficult for the builder to get a stay order against you, since he is at fault here. It's advisable that you file a caveat petition in court having jurisdiction of the area concerned.

You would also have to issue a legal notice to the builder intimating termination due to deficiency in service and you can also seek refund. You can hire another builder after that.

The Supreme Court has held that a consumer has the right to approach the Civil Court or the Forum under the Consumer Protection Act for relief in a situation where the builder commits breach of his obligations.

P. S. please go through the agreement carefully, as this advise is given on merely the facts stated by you. So, take note accordingly.

Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

Hello,

Send a legal notice to them and thereupon file a case at RERA for enforcement of the terms of the contract or for refund.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Yes it is just an application that will be filed by your Advocate.

Get in touch with a local Advocate.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Yes you can apply for caveat in mysore court you need to apply in junior division and senior division court so that owner does not get stay without hearing your side court will not pass any order. Feel free to contact me for any assistance required in mysore.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

You can file caveat so that no reliefs are granted to plaintiffs in your absence

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

You can file caveat which has 90 days warranty after which you have to file another caveat. It is a good idea.

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The meaning of caveat petition is as follows:

CAVEAT

Caveat: A Caveat is an entry made in the books of the offices of a register or court to prevent a certain step being taken without previous notice to the person entering the caveat. In other words, a caveat is a caution or warning giving notice to the court not to take any step without notice being given to the party lodging the care at. It is very common in testamentary proceedings. It is a precautionary measure taken against the greater of probate or letters of administration, as the case may be, by the person lodging the caveat. Section 148-A of the code of civil procedure provides for lodging of a caveat.

Object: A caveat protects the caveator’s interest. The caveator is already ready to face the suit or proceedings which is expected to be instituted by his opponent. Hence no ex-parte order shall be passed against the caveator. The caveat avoids multiplicity of proceedings. Thus it saves the expenses costs and conveniences of the Courts.

Examples: A is owner of a house-site. He wants to construct a building He got the permission from the Municipality. A started construction. Meanwhile, B the neighbourer claimed some of the land of A and objected the construction, on the pretext of some bias, immediately on the day of threatening itself. A filed a caveat against B in the competent civil court praying the Court to give him a notice before passing any interim order or relief in case if B files any application before the Court, so that he could give the answer to the claim of B.

Form: No form is prescribed for the caveat. The caveator may file a caveat in the form an application or petition before the court submitting the cause of action giving the name and description of the opponent. The copy of the application shall be sent to the opponent party in advance by Registered post Acknowledgement due, before filing it in the court.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

You can file a caveat petition before the court, it is just a matter of filing on the same day, there is no hardship on this.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Yes. It will definitely help you. Filing of Caveat application is a very simple procedure and the advantage of it would be that the cases against you won't be decided, in your absence as you'll receive notice for the same.

Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

Yes the caveat can be filed as precaution so that no stay is passed without hearing. The lawyer shall draft and file a caveat in the jurisdictional court and further if any suit is filed by the present builder you shall receive notice for same and the court shall hear you before passing any order.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

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