Harassment by the builder
I would like to get an advice for the below situation. We had signed a contract with the builder to re-build the house. The agreement was to build the house in lieu of a floor after completion of the work.
It has been more than 4 years and he has not finished the work till date. He has stopped the work mid way and has been harassing to get the registry completed for the floor that was designated for him before he finishes the work for all floors.
He has also put a case against the owner of the property who are 75+ years old. He has managed to somehow get the electric and phone connections installed for the floor he built for himself. Till date, the only floor completed is the one that was designated for him per the agreement after completion.
He has encroached all the floors of the property by moving his personal belongings and refuses to move it out or do the work.
What legal course of action can be taken in this situation? Should we make the registry before the work is completed? What legal course of action can be taken if he doesn't finishes the work after getting the registry?
Asked in Property Law from United States
Hi, you to file a suit against the contractor for breach of agreement.
2. As he has not completed the work in time as per the agreement.
3.But it is necessary to know what are all terms of the agreement before filling suit based on the terms of agreement it is better you proceed further.
1. This is a clear case of deficiency of service and unfair trade practice.
2. Hence you should immediately file a case in the consumer forum wherein you can claim for damages, vacating the encroached portion and completion of incomplete works or compensation on lieu of it.
3. You can file criminal case as well.
1. What is the nature of the case filed by the builder against the owner? Has the court passed an order till date?
2. As per the contract the floor was to be given to the builder after the completion of the work i.e after the house is rebuilt.
3. Is there any time period specified in the contract for the completion of work?
4. The owner has abundant rights which he can exercise in the given scenario. He can go to court and seek specific orders to the builder to complete the work which he has since stopped. In addition to this the builder can also be obligated to pay damages for stopping the work.
5. The issue of encroachment by the builder can also be addressed by filing a lawsuit for his eviction.
6. To make the registry before the completion of the work would be to surrender to the illegal demands of the builder. Furthermore, it will leave you with no legal rights to assert against him.
if time is mentioned in the contract then builder is bound to complete the work within time. according to section 55 of Indian contract act if party to the contract fails to perform contract within time then contract becomes voidable. you two options first to file suit under section 73 of contract act for compensation & annulment of contract secondly to file suit for specific performance of contract.
Did you enter in to a written agreement with the builder? The terms of contract are important. It appears to be a breach of contract. There are options available to you. You can file a suit for specific performance of contract. You can also as per terms of contract rescind the contract and claim damages/compensation/possession of the property. As far as transferring of floor in his name, the terms of contract are to be looked into. However you have to be conscious of his intentions. My opinion is against it, if it is not contradicting any terms of contract. Due to slum in real estate transactions and fall in prices of properties, builders are resorting to various tactics to mitigate their losses. You need to take timely steps.
Advocate, New Delhi
1) it is necessary to peruse agreement signed with builder
2) if builder has failed to complete the wok within period stipulated under the contract you can terminate the contract
3) encase bank guarantee given by builder and claim damages
4) you can also obtain orders to direct builder to vacate other floors in his possession
5) case filed by builder against owner has to be contested on merits
builder has been ordered by Mumbai Suburban Maharashtra District Consumer Forum to pay arrears for the rent of 24 months for which the flat possession was delayed and continue paying the rent till the time the flats are actually handed over. The delay in handing over the possession according to the Forum amounted to unfair trade practice. Furthermore, the forum also specified that of it was not possible for the builder to complete the flats, the builder should give the consumer an option to buy a flat of the same measurement at the rate the flat was initially booked.
1. Was not the terms and conditions been clearly mentioned in the development/conctruction agreement executed with the builder?
2. The builder shall have to abide by all the terms and conditions mentioned in the said agreement,
3. If he fails and neglects to abide by the said terms and conditions, you shall have to file a specific performance suit against the builder.
A lot depends on the terms of the agreement. If by causing delay he has vitiated any of the terms of the agreement then he stands to have repudiated the agreement at his own end by his own actions and there fore estopped from claiming any further relief under the agreement.
For any illegal encroachment you may register an FIR and try and take possession of the property by legal means.
If there is any arbitration clause in the contract then you can approach to the arbitrator. Take photograph of the work remain incomplete. You can file suit for temporary injunction under order 39 rule 1 of cod of civil procedure, for removal of all the encroachments because you may bear irreparable loss and balance of convenience is in your favour.
If he has violated any terms of the contract/agreement, serve him a legal notice and file case in court for specific performance on his part or you may cancel the same and claim all the damages,loss suffered by you. For clarification you may contact through phone consultation of this site.
Advocate, New Delhi