• Should I go for RERA or NCLT if builder is not doing construction and possession date has expired.

Hi Sir, 

Good afternoon,

i have purchased two flats from a builder in Greater Noida and the data of possession was in 2017. The current status as on date September 12th 2018 is that builder is not doing any construction by saying weak financial condition. Now I need law help to get rid of this situation. Please suggest, should I go for RERA or NCLT. [ Need Lawyer help from Delhi NCR ]
Asked 4 years ago in Property Law
Religion: Hindu

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22 Answers

You can approach either as both of these try matters in a summary manner and also in a timebound manner.

I would advise you to file a petition in NCLT as that creates maximum pressure on the Builder to settle the matter. Also, you would get shorter dates of hearings in NCLT.

Insolvency Bankruptcy Code (Amendment) Ordinance 2018 that recognises homebuyers as financial creditors under the insolvency law. Once the claim is admitted in the NCLT, the most beneficial effect is that the very next day the board of directors of that company gets suspended and it creates a lot of pressure on them.

For any other queries, feel free to contact.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

file complaint before RERA against the builder and seek orders to direct builder to deliver possession within stipulated period / pay you compensation for delay in delivery of possession

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

Hello,

I would advise you to file a case before RERA for it being an effective and efficacious remedy.

Complaint can be filed online and hearing will take place in Noida itself, before the newly constituted authority.

You could have approach NCLT in case there was an agreement to pay Committed Return Plan. The case which was in news and was decided by NCLT against the builder was having this clause. The question finally has yet not been decided by the NCLT that whether the buyers will be considered as operational creditors or not.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Hi, it is advisable to file a complaint at RERA in Noida ..RERA bench has been set up in Noida to adjudicate the builder buyer disputes ..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1. is any agreement entered with you by the builder?

2. if not then you may not get refund of money as s.18 of RERA says that if there is delay in possession as stated in agreement for sale then the builder is liable for interest and compensation alongwith refund, if the purchaser does not wish to continue in the project

3. so you may get stuck up there. Also check if this project is registered with RERA and what is the date of possession mentioned by builder on RERA website

4. you can approach NCLT as a secured creditor. But RERA is faster in giving relief. Only difficulty will be absence of a written agreement

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Dear Client,

Remedy available under all three - RERA, I & B act and consumer court (compensation). For fast relief approach RERA and for declaring builder insolvent than NCLT - buyers are now declared financial creditors as per amended act.

Criminal complain under sec 406 , 420 IPC also maintainable.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

first send legal notice through lawyer and ask builder to give immediate possession or pay rent till possession. If builder will not act per notice then file case in consumer court for deficiency in service.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

The amendments made by the Ordinance inter alia brings IBC in closer sync with Section 18 of RERA which gives the allottees the right to demand i) refund of the entire amount paid by the allottees (together with interest at prescribed rates), and ii) interest to be claimed for any delayed possession.

It is yet to be decided whether home buyers/ allottees would be treated as secured financial creditors or not.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

you are secured financial creditor

Ajay Sethi
Advocate, Mumbai
87938 Answers
6207 Consultations

5.0 on 5.0

As per the amended act " any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing " .. - consequently financial creditor.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

I have come across many cases like this. These days the number of legal cases against builders is increasing day by day. Positive outcome from the recent cases is encouraging more and more buyers to opt for filing legal cases against builders. There are numerous cases where builders have taken more than the required time to finish projects while leaving home buyers to suffer financial loss as in your case. Late government approvals, getting the completion certificate, delay in getting raw material, cement and steel procurement, manpower delay etc are some of the major factors that contribute to the delay caused in handling over the possession to the buyers. Whatsoever be the reason, the delay in completion of the project affects the overall budget of a developer and has a direct impact on the buyer.

There may be some cases already pending against your builder in Noida or Delhi as this is the routine practice of builders. Now you can claim compensation for the mental and physical agony you are facing by filing a case.

All legal action can only be taken once notice has been served upon the entity or individual you wish to take to court. It is only this process that legalizes bringing a matter to court. The intimation sent is known as a legal notice. A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them. This notice, when sent, conveys your intention prior to the legal proceedings and thus, makes the party aware of your grievance. I have observed that many times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides. And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law. Although a legal notice can service as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases.

You need not to file a case in National Company Law Tribunal (NCLT). You need to file it in consumer court.

The Consumer Protection Act, 1986 is the Act which seeks to provide for better protection of the interests of consumer. Any person who hires any services for consideration is a consumer under the Act. It provides remedies to a consumer against deficient services. When a land is allotted or developed by a statutory authority or it constructs a house for the benefit of a common man, it is as such, “service” as by a builder or contractor. When the possession of the property is not delivered within stipulated period, the delay so caused is denial of “service”. Such disputes or claims are termed as deficiency in rendering of service of particular standard, quality or grade. A person who applies for allotment of building site or for a flat constructed by the Development Authority or entered into an agreement with a builder or a contractor is a potential user and the nature of construction is covered in the expression “service” of any description. Thus, the Consumer Protection Act provides protection against the malpractices of the builders and developers. Any person dissatisfied by the services or delayed delivery of possession can approach the consumer forum for his redressal. The consumers can approach the Redressal Forums for deficiency in service at different stages of housing.

As you know today the increase in the demand of the residential and commercial property has given birth to a number of builders and developers who offer or promise special features to attract prospective allottees. The same has also developed a long ending fight between the allottees and the builders with respect to the unfair practices used by the builders and the delay in handling over the possession the allottees in which case the ultimate sufferer is the allottee who suffers mentally as well as financially. Using the remedies provided by law, the allottees have been able to get back their money with interest or have been financially compensated besides allotment of flats. In case of delay in delivery of possession the builders have been made liable to refund the amount paid with interest for the period of delay. There cannot be any justification against the delay caused by the builder once they have promised the allottees and taken their money on the pretext of their own promises.

If you need any help you can contact my assistant to book a consultation. I will help you.

SHRI GOPAL VERMA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

Shri Gopal Verma
Advocate, New Delhi
312 Answers
5 Consultations

4.0 on 5.0

if that agreement is registered then please approach RERA for faster relief

you will get refund of all amounts so far paid by you with interest and compensation

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

You have builder buyer agreement dispute you don't have any company law dispute then what is the point you are going to company law Tribunal instead of going to rera you need to file your complaint in state consumer dispute redressal Commission at Lucknow complaint in rera is not advisable at this moment because you have to apply in rera locally and even after you win you have to go to the Tribunal but in case of commission national commission is left for any further appeal

Any complaint which is worth more than 20 lacs can go to the state consumer dispute redressal Commission up to the value of rupees one crore

In case you wish to my location state consumer Commission please speak to me.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

You can file an Insolvency petition against the builder if it is company give a demand notice as secured financial creditor and further if in 15 days no payment is made approach NCLT.

Alternatively if builder is not a registered company you have also the remedy under the RERA act a complaint can be filed

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

http://www.insolvencyandbankruptcy.in/wp-content/uploads/2018/03/HOME-BUYERS-ARE-SECURED-FINANCIAL-CREDITORS-UNDER-IBC.pdf Refer the article it will help you to understand.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Without any hesitation, doubt or confusion, go to RERA.

The above is the most efficacious remedy for you.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Yes, with the amendment in the Insolvency and Bankruptcy Code, home buyers are to be treated as secured "financial creditors".

Thus, you also have the option to approach before NCLT.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1. Proper jurisdiction for any issues related between Flat-Purchaser and Builder, can be adjudicated successsfully before the RERA authorities .OR. in the local Consumer Court, wherein compensation & damages can be claimed successfully.

Keep Smiling .... Hemant Agarwal

VISIT:

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

You can communicate your decision to cancel the booking and seek refund of the booking amount with interest from the date of booking.

You can send this communication either by yourself or through your lawyer by registered post.

After that you can plan to approach RERA and then consumer court, if necessary, for further reliefs.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

I have a written agreement with builder that possession of flat will be given in July 2017. In this situation "am i a secured financial creditors ?" , If you don't mind please quote the related section(s) from NCLT Act for my further understanding....

This may not be covered under NCLT act.

You first send a legal notice to him communicating your decision to cancel the booking.

You may approach a local lawyer and issue a legal notice on the subject.

T Kalaiselvan
Advocate, Vellore
78097 Answers
1543 Consultations

5.0 on 5.0

This is my response to you:

1. Firstly send a legal notice;

2. Then if it is RERA registered then file a complaint under section 12 and 13 of the act;

3. Try to seek compensation also;

4. The property which is not RERA registered, a complaint has to be filed to the consumer forum;

5. Consult a local lawyer otherwise the period of limitation is running against you.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

At this stage you will not be considered as secured financial creditor for the purpose of filing a case before nCLT

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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