You can during arguments take the plea that you are not pressing prayer 3
2) that only reliefs 1 and 2 be granted
Housing project delay
CASE 1 : 1)The Whispering Tower housing project in Mulund west, Mumbai by HDIL started in 2009/2010 . 100s booked flat with possession date ( as per agreement) ranging from 2014/15/16/17/18 etc in phase 1 ( many ) & phase 2 ( few. In Phase 1, 3 wings erected till around 18/19 floor out of 40 floors till date. Phase 1 and 2 are integral part of the same complex. Recently both phase are listed in RERA with possession date 2021/22 etc. Project was closed many times since 2011 and BMS sealed it around 6+ months back for non payment of their dues. 2)During last December 2017 a group of 42 flat owners filed complaint to NCDRC thru appointed lawyer. Final hearing slated for 28 Sept, 2018 as HDIL failed respond to court notice in last May, 2018 3) Last week Allahabad Bank slapped e-auction notice for the Phase -1 of the project for their nonpayment of loans and e-auction slated for 22 Aug, 2018. Allahabad bank also granted loand to other flat buyers in the same project and also given NOC to others to avail loan in the same projects. 4)Now flat owners are in dismay and knowing nothing what to do next , so around 75 persons are planing to to go to DRT. It will also true that no bidder will come forward bid as the project is riddle with multiple problems. 5) Request you to advise the best course of action to be taken to project my interest. Should Phase 2 people to go to DRT now since the e-auction per se for Phase -1.? My flat is in Phase 2, possession date as per agreement is Dec,2016. CASE 2: In the above project--- Builder increase around 10 lakh each after ( around 1+year) after the booking on the ground of FSI and increased the area 145 sq ft. without any change in drawing or in dimension. Area increased only paper to increase the CV .This changes happened before the agreement. In view of the delay , all signed the agreement . In our prayer to NCDRC, I have asked as drafted by lawyer: 1) possession as per agreed amount less 10lakh 2) alternative flat of similar size in similar area 3) If option 1 & 2 not possible, then to pay market price which is in proportion to their payment made to builder. Ex : I paid 30% of CV and CV being 1cr at the time of agreement. Now market value is 1.25cr,so they have to pay 30% of 1.25cr. Market value as per ready reckoner. Now, I feel , I have to withdraw my payer Point 3 , becoz , I paid only 30% in pase 2 but majority paid 70% in phase 1. As the present market value is low , I will be the loser. Pls advise how to go about case 2.
Asked 7 years ago in Property Law
Religion: Hindu
9 Answers
hello
the project is riddled with multiple problems as the builder has not only failed to give possession to the builders but has also failed to repay his debt. now in the 1st project, the persons have approached NCDRC. now the situation has become more complex as the case is before DRT, NCDRC, and therefore there are multiple buyers lenders, courts. the Allahabad bank is also the lender to the people and the builder.
I would advise you to go to the high court so that appropriate directions may be obtained on how to go about the process. a writ petition should be promptly filed. you have been duped long enough as your possession date was 2016. you can go to the RERA/NCDRC but go to the HC first.
as far as case 2 is concerned, a legal notice should be sent to the builder and such a contract was signed under duress and hence is no contract at all. challenge the contract as being unenforceable in law as it was also criminal breach of trust.
regards
1. Your primary relief lies from the builder only. So pursue tour remedy against him and not against bank which is creditor to the builder , not yours.
2. So once you get necessary reliefs from consumer forum the builder would be obliged to abide by such direction as in default of which he can be imprisoned.
3. Your pursuing reliefs from consumer forum against the builder has nothing to do what his creditors are ding to attach and auction sell the properties.
4. In the consumer forum you will be seeking refund of money and not the flat and hence there is no question to visit DRT to redress your grievances which would never be fulfilled in DRT.
Good luck.
Sir since your flat is in phase 2 and no notice of auction.and possession is there you don't have to go DRT. As for going DRT you need to challange auction notice of bank or any other possession letter.
So you are not required to go.to.DRT at this stage.
Can file an application before the National.comsumer forum for amendment of the prayerand complaint , And you can File the amendment removing the prayer clause 3 or amending it .
Case 1:
1. file complaint with RERA for delay in handover of possession as per agreement
2. HDIL is bound by the possession date given in your agreement and it cannot make you wait till the possession date updated by it on RERA website
3. seek interest plus compensation
4. when builder sells flats to flat buyers which are already mortgaged with some bank, the builder obtains NOC from that bank to release the flat from mortgage. The amount paid by the buyer for the flat goes to the bank towards its loan dues. So bank cannot touch a flat for which it itself provided NOC for sale to flat buyer. The bank can proceed for e-auction against other flats which are mortgaged with the bank and which have not been sold to flat buyers. So you need not worry about your flat being put to auction, because it cannot be auctioned in the first place
Case 2:
1. when builder said that area is increased by 145 sq.ft. - did you ask for the sanctioned amended building plans which reflect this increased area?
2. or is it that builder increased the super built up area by 145 sq.ft.?
3. how can builder increase the area at his whims and then demand extra payment from buyers? this is an unfair trade practice
4. even if you have signed the agreement, the payment for increased area should not be binding on you
5. at the most it should be considered as a blanket consent
6. also even if at the relevant time the project was governed by MOFA, the builder ought to have registered agreement with you after accepting max. 20% of sale price
7. you can claim refund from builder as agreed in the agreement. Therefore you cannot say that builder has to pay you 30% of present market value. Builder will refund you your 30% paid by you plus agreed interest as agreed in agreement
Dear Client,
You can approach RERA, Consumer Court and DRT once possession is taken by bank. Along with it, the best course is to file police complain agasint the builder u/s 420, 406 IPC.
fast recovery
1. The project has already been sealed by BMS 6 months back and now Allahabad Bank has initiated SARFAESI Proceeding against the loan provided by them which has now become NPA for which they have published Sale Notice u/s3(4) of SARFAESI Act,2002.
2. All of your should now jointly file a S.A. (SARFAESI Application) before the DRT praying for an order upon the Allahabad Bank to first repay your dues in the form of the amount you have paid with interest, damage and cost, from the sale proceeds and thereafter realise the balance amount to recover their dues.
3. Recently the Bankruptcy and Insolvency Code, 2016 has been amended by including the flat buyers who has made the payment as creditors for filing application before the NCLT to realise their debts along with the Bank by selling the properties of he builder. So, enquire from Allahabad Bank to ascertain whether they have gone before NCLT or not and if yes, then you all should file an application for being added as parties in the case.
4. For the time being file the SARFAESI application (S.A.) within 45 days from the date of publication of the said E-Auction Notice in Newspapers.
5.The prospect of completion of the project appears to be zero for which it will be prudent on the part of all of you to take refund of the money paid by you from the sale proceeds with interest, damage and cost.
1) If HDIL having money they could have completed their project on time so don't go for taking money back with interest.
2) And don't agree for additional anount of rs 10 lacs plus increased 145 sq fts.
3) Better you go for completed projects of HDIL and get in that place flat or in similar area get deal fixed ASAP and close the chapter.
The market rates will keep fluctuating and it may vary at different points of time.
You cannot decide based on the varying rates..
YOu may have to take a firm decision on this whether to continue the bookingor to cancel the same.
What is the case that you filed in consumer forum?.
If you have opted for cancelling the booking then you may have to seek the booking amount with the nominal interest only and not an exorbitant rate.
