• Sale deed executed but possession letter not yet offered

Recently I bought a flat from a builder. My mother booked the flat by giving 2 Lakhs as a token money on behalf of me, I was in the USA at that moment so decided to book sign sale agreement after 4 months when I will visit India. So we signed sale agreement in January 2017 and then applied for a loan from HDFC. He raised his first demand to pay till 5th stage and I paid in 15 days time period. After paying 80%, we executed the sale deed during the month of December, 2017. Agreed date of the flat handover was December 2017 but still builder didn't install the lift and some small work is pending in the apartment, so I hold 10% of the property cost. Now builder is threating to cancel the sale deed as payment is pending from my end and also charging extra 2laks interest for payment delay. Whenever I asking for clarification about when you raised the demand letter and when I didn't pay, he is not replying.

What course of action should I take now? 
I am in the USA. Can builder cancel sale deed without my presence? 
Should I pay the remaining balance without getting the lift and possession letter?

My email id: [deleted]
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

In the present case scenario, you should serve a legal notice to the builder asking him to do the necessary acts and then you'll remit tye balance amount.

Also state that he cannot cancel the contract as more than 80 percent same consideration and he hasn't performed his part of the agreement.

Give him 10 days to do the needful, if he doesn't, then you can proceed to file a complaint in consumer court seeking damages for delayed possesssion by the builder.

Feel free to call for any other doubts or queries.

Regards,

Siddharth Jain.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

Hello,

You have done the right thing .

Your mother in absence of you can file a case in the consumer forum for not delivering the flat in time . You can also file a case for violation of contract and claim damages .

The builder has little option that is to threaten you but you can actually sue him and get proper relief .

Hope this helps.

Thanks

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

Issue builder with a notice that since he has delayed the project you are entitled to compensation for delay and has not handed over flat on agreed date so this breach of agreement you are entitled for compensation, further kindly check if the project is registered under rera authority then you can make a complaint with rera authority otherwise you can file a consumer complaint for deficiency in service from builder and can seek compensation.

Further pay builder the amount as agreed by you deny to pay any extra amount, builder cannot unilaterally cancel the sale deed.

See in my opinion pay the amount to builder as agree no extra amount and if there is any further delay in possession file a consumer complaint for compensation.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. You must make all payments as per the payment milestone contained in the agreement

2. If the builder notifies you that a particular construction stage has reached and buyer is required to make payment of agreed instalment corresponding to the construction stage, then buyer is obligated to make the payment as agreed

3. So i suggest you make the payment. You can always make the payment under cover of your letter that payment is being made under protest and without prejudice to your legal remedy to see that all work is done as per construction milestone

4. If the builder has agreed on a particular date for handover of possession in the agreement and has not yet given possession then you can complain to regulator known as Rera and seek interest and compensation for delayed possession

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Make payment of balance amount demanded by builder

2) ask builder to waive interest as delay on his part in delivery of possession

3) builder cannot cancel sale deed unilaterally

4) file complaint against builder before consumer forum and seek orders to direct builder to deliver possession of the flat

5) pay penalty for delay in delivery of possession

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1) First you take physical possession of the flat.

2) later on complaints in consumer forum and in RERA office.

3) Don't pay money till its not get complete projects, initially all procedure and plan of work completion must be signed both of you and accordingly payment will be made.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Builder can not cancel it. You need to check again terms and conditions of the contract and sale deed. You can file an case in against him seeking possession.

Jaswant Singh
Advocate, Gurugram
926 Answers
2 Consultations

4.8 on 5.0

1. Are you sure that a sale deed has been registered by and between the vendor without his receiving 100% consideration?

2. If so, then what has been shown as consideration received? Without receiving full consideration, sale deed can not be registered.

3. However, if it is a sale deed registered conveying the title of the flat in your name then the vendor can jot cancel it without both of you signing a cancellation deed and registering the same before the Registrar.

4. You can file a complaint case before the local District Consumer Dispute Redressal Forum alleging deficiency in service and unfair business practice praying for a direction upon the builder to complete all the remaining prt of the construction within next 2 months failing which he shall be liable to pay you Rs.2 K per days delay and if the arrears accumulate to Rs. 10 lakhs, his other properties will be attached for conducting sale to realise the said amount of penalty.

5. Do not mention any where the fact of the balance payment to be made by you if he has shown in the sale deed that he has received the entire payment.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

Dear Client,

Deed once Registered cannot be cancelled except by court order, which builder will not go for, as litigation cost, time and bleak chances of success. And notice will issue by court if suit filed for cancellation of sale deed.

Instead you should complain to RERA for not adhering to time line in offered flat and facilities.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The builder cannot cancel the registered sale deed unilaterally for any reason.

If there are dues to be received from you he has to notify you by a demand notice.

If he has obtained OC you can issue a legal notice to him to provide OC and also the possession letter or the CC.

You have to issue a legal notice to the builder to bring him to your line or else you can drag him to the consumer forum seeking releif and compensation for the mental agony he caused.

T Kalaiselvan
Advocate, Vellore
78105 Answers
1543 Consultations

5.0 on 5.0

Clear the amount claims by builder and request builder to issue you possession letter

2) if builder fails to deliver possession file complaint before consumer forum seek orders to direct builder to deliver possession of flat to you

3) seek litigation costs and compensation for mental torture undergone by you

4) you can execute POAin favour of mother or wife to file complain

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. Sir, with a written letter ask bank to disburse amount as the basic amenities in society are completed and you need pay your final payment as on delay builder can charge you with penalty bank shall take step or legal action against bank can be taken.

2. Try contacting builder personally if not possible issue a notice to the builder further disburse the payment as agreed.

3. you have good chances to succeed but it will take time and resources.

4. Builder cannot unilaterally cancel the registered deed further he has agreed that he has recieved the payment. Further he is threatening sub registrar doesnot have power to cancel the register deed builder has to approach court.

5.yes this is right approach if he demand more or doesnot issue possession letter consumer complaint can be filed against him.

6. Yes you can issue a power of attorney to file the complaint to ,mother or wife before the consumer court.also if RERA registered project can approach the RERA authorities.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. It is your problem to pay the builder and not the bank.

You only have to arrange for payment of balance sale consideration.

However the builder cannot cancel the registered sale deed unilaterally.

2. Why should you write to builder or contact over phone? You can alternately communicate the matter by registered post.

3. It is the builder who has to approach court for non payment, against you, hence wait.

4. Let him go to court because he is in a problem now for having registered the property without receiving full consideration amount.

5. You can make the payment and demand possession letter.

6. After making payments you should place your demand for possession in writing and send it by courier service, after which you may authorize anyone to file the complaint before consumer forum, by executing a GPA.

T Kalaiselvan
Advocate, Vellore
78105 Answers
1543 Consultations

5.0 on 5.0

Firstly, you'll have to serve him a legal notice asking him to do the needful, and if he doesn't do so within 15 days of the receipt of notice, you can file a complaint in National Consumer Disputes Redressal Commission (NCDRC), Delhi if the subject matter is more than Rs. 1 crore and in State Consumer Disputes Redressal Commission in your concerned state, if subject matter is less than Rs. 1 cr. but more than Rs. 20 lakh. Your mother can also represent you, if you can give her a Power of attorney in this regard.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

You should also consider sending a legal notice to the bank as well to honour their promise of remitting the loan amount when the lift is installed, thereby asking asking them to remit the amount to you, as the lift has already been installed in the building. Also, attach photographs of the lift from inside and outside both, along with the notice.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

1. As per records, you have already paid him the entire amount before the sale deed was registered in your name. The builder can not cancel the said sale deed.

2. Never accept/mention the fact anywhere in your letter/email/discussion that you have not paid the entire consideration. You need not ring him. File the consumer case as suggested in my earlier post if you have not yet received possession of your flat. It will be a very good case to win.

3. the flat already stands in your name. So, you can claim its possession. If you wish, you can pay him any amount showing it as extra amount paid but never write anywhere that you have not yet paid the entire consideration.

4. The builder can refuse to handover the possession of the said flat for which you shall have to approach the Consumer Forum as suggested in my earlier letter.

5. If you pay him the said amount, mention it as an extra amount as demanded by him and never mention that it was due from you. My suggestion will be to pay him the said amount only after taking possession of the flat.

6. It will be prudent on your part to pay him the amount only after receiving posession of the flat. iuf he does not handover the possession, approach teh local District Consumer Dispute Redressal Forum as suggested in my earlier post. You can execute a POa in favour of anybody in India by getting the print out of the said POA on Rs.50 stamp paper from your Indian Advocate and then sign it before the appropriate officer of your local Indian Consulate for returning it to your POA holder in India to file the complaint case for and on your behalf.

7. Engage a local lawyer having expertise in this field.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

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