Yes you can send the legal notice and then go before the consumer court as per the details mentioned above
Need guidance regarding consumer court case filing against builder for "deficiency in services"
Dear All, Our society Fusion Homes Greater Noida West , has recently been delivered (1 year passed), however it has lot of issues : - Poor construction quality (photograph of building can itself is a live evidence), - seepage in basement (weakening pillars , risking life of building & residents living in it) - Low quality substandard cement based tiles used in stairs that are breaking at many places , just within a 1 year, whereas in BBA Marble & granite were mentioned. - One of the wall has fallen due to seepage on its own, we also lodged an FIR (post that builder fixed the wall) , but this is a proof of faulty construction & many such cracks & seepage are building at other walls too (photos are live evidence). we discussed with builder multiple times since last 1 year, but his response was very pathetic & doing temp fix rather than permanent solution & always compromise in quality in everything. Although we paid a premium amount for our flats. We're some of the owners 60+ , agreed to collectively file a case against builder for these issues in Consumer court, we hired one local lawyer - he suggest to start with District Consumer court, whereas i asked him why we don't go to NCDRC as collective value of our flat is already above 1 Crores, : - So is there any benefit in starting with district court when you can start directly from NCDRC ? his logic is in case we loose in NCDRC then we don't have any option left , so better start from district court, is that logic correct ? & whether NCDRC takes lot of time to dispose compared to Local/District courts ? - The Building has received Pre Certification of "IGBC platinum rating" for "Green Building" , & by seeing that on brochure we've bought the flats , however as of now i don't see any such special greenery in society - that can be justified said as "Platinum" , In actual society has very little or no Greenery maintained, .....so can we send a legal notice to IGBC to take action against builder for Non-compliance of "Pre certified Green Building Rating" , as its misleading buyers & builder is still using the same in his brochure, However in actual on ground nothing is followed !
Asked 5 years ago in Property Law
Religion: Hindu
24 Answers
you can take legal action against the builder but you will have to get proper legal opinion depending on the earlier agreements with the builder and the earlier owners.
Also, you will have to take civil and criminal action against the builder in addition to the consumer complaint.
If all the buyers want to file class action suit together the pecuniary jurisdiction of NCDRC would be invoked.
All the buyers cannot file class action suit in district consumer forum.
Even if you lose in NCDRC, you have a right to appeal under Section 23 of the consumer protection act in Supreme Court of India against the orders of ncdrc passed in its original jurisdiction.
Also, cases are disposed of in a time bound manner in NCDRC, unlike district forum and state commissions.
There are no benefits of filing separate cases in district forum. Contact some other advocate.
It is better to file complaint in NCDRC than district consumer forum
2) you have strong case on merits and it does not make sense in filing complaint before district consumer forum
3) you can approach RERA in alternative as builder has done a shady job in carrying on construction and seek orders to direct builder to rectify defects in construction
- You have to first file your consumer case in district consumer Court because of subject matter jurisdiction.
- If you file in NCDRC, it will be thrown away. Appeals against judgement of district consumer Court are accepted in State consumer Court; and appeals against judgement of State commission are accepted in NCDRC. So NCDRC is second appeallate forum, not the court where you file your original consumer complaint.
- The logic provided by your lawyer to move district consumer Court is humbug and utter nonsense. You don't move NCDRC because of the reason I have stated. Releve this lawyer of yours from your case. If he doesn't have such basic knowledge, he'll botch up your case.
- Yes you must initiate legal action against IGBC too.
- As already hinted to you, you must appoint a competent and expierenced counsel, instead of quacks you appointed. Expert legal services don't come cheap. So if you really desire such counsel, my services are at your disposal. Take appointment with me at my office.
Hi. Excuse overlooking pecuniary value. Yes as you are filing together and the collective value exceeds One crore, you must move the NCDRC, as neither the district, nor state forum has pecuniary jurisdiction in your case
1. This is a clear case of deficiency of service and unfair trade practice for which can can be filed in consumer fora seeking damages, compensation and reversal of deficiencies.
2. Now if the value of flat and services prayed for in the petition of complaint exceeds Rs.1 crore then the case is to be filed in NCDRC only. Else in state commission if total value is within 1 core or district if within 20 lakhs.
3. Your case has good merit.
The district courts have no jurisdiction as the value exceeds 1 crore. His reasoning is flawed. File a case either in the national commission or the rera tribunal.
District and state consumer forums have no jurisdiction to entertain such a case which involves a sum of 1 crore. I wonder if he ever read the consumer protection act!
Regards
Hi,
As per your input here, i will suggest you to file the case in NCDRC collectively by all buyers and this will have big impact on buyer. In District forum, the desired relief may not be obtained and you will have to move NCDRC for adequate relief.
Directly to National commission, loss of two step i.e. district --> state -- > national -- > SC.
Approaching NC will be finality of litigation and no time will waste in appeals.
Pecuniary jurisdiction involves consideration plus compensation and accordingly jurisdiction of forum can be made.
1. you can approach NCDRC
2. its order can be challenged in High Court by filing a writ petition
3. if HC rejects the petition then you can file SLP in supreme court
4. legal notice to IGBC can be issued calling upon it on what basis it issued the certificate to builder when the reality on ground is totally different
Dear client
You can also file FIR against the builder for the fraud done with you in name of good material he has provided you low grade material and it is also criminal breach of trust by agent which is punishable under section 409 IpC which is non- bailable.
Also you should file the complaint in district consumer forum as they value if claim will not be under thier jurisdiction they themselve will recommend you for going to NCDRC and ask your lawyer to take one time fees for both the cases if application will got dismissed by District consumer court then he will file the case in NCDRC without extra fees.
For substandard quality in the construction you can very well obtain an expert opinion from an architect or an engineer, and on the basis of the same you may even send a legal notice to the builder demanding rectification of the repairs and damages including the seepage etc, failing to respond, you may proceed against the builder through consumer forum. Approaching NCDRC is not a bad idea, you may weigh the pros and cons on this and proceed through another advocate if this advocate is not cooperating properly.
Hello,
No, if collectively value of the flat in more than 1 cr then you can directly approach the NCDRC, there is no need to approach the District commission first.
go ahead and file the case in group at the earliest if the builder has not abided by the promises made in the brochure.
Regards
Section 4(8) of the UP Apartment Act 2010 read as under:
The promoter shall be responsible upto two years after handing over the apartments regarding construction and structural defects in the building constructed by him and he shall get such defects removed at his own cost, failing which he shall liable to pay compensation for the losses incurred by him for such defects.
In light of the above, you are advised to approach the State Commission as early as possible.
Also, in case this project and the promoter is registered under RERA, better to file a case with RERA.
Builder given me the offer of possesion of My Flat in April 2018, after that i paid all final charges to builder & got the registry of flat done in Dec 2018 , At that time My Flat was totally Raw , Builder said that final white wash & finishing would commence only after Registry & would be done in 1 month.........However since then i am following up multiple times with their local team on various issues of seepage, crack, poor civil work etc & they're getting it done but slowly, I said I'll not sign physical possession unless you get all these work done (because after signing i know that they'll not do anything). My query is in this case as builder is taking a long time to fix my issues - can i ask for compensation for delayed possession ? It was mentioned in Builder-Buyer agreement (BBA) as Rs10 per sq ft , but builder says that BBA is "null & void" after Registry , But still due to builder's slow work I am unable to accept possesion of Poorly constructed flat since Registry (6 months already passed & i am loosing on rent) On the Top of that Builder has sent me bill of Full Maintainence "since the time of Offer of Possesion (which is April 2018)" & saying that if i don't pay it timely then he'll charge additional 24% on that ! ..............Can he really do that ?............... because I've not taken physical possesion of My flat, Builder is forcing me to accept the possesion in whatever pathetic condition that he's offerinig & i am ooposing that.
Asked 5 years ago
Yes you can claim compensation for delayed possession. As you have not taken physical possession he can't force you to pay the maintenance. You can object to the same.
Builder is faking, you can demand compensation along with penalty for delayed possession from court. Limitation 2 years for filling case.
You can refuse. And for any coercive action, restrain order will pass by court.
You can ask for interest on the delay in possession from the builder even after the registry has been done as the builder has failed to fulfill his agreed upon responsibilities.
You can claim 18% interest from him and the the delay in possession would not be given at Rs10 per sq ft as it is a unilateral clause of the agreement owing to the fact that the builder is charging 24% per annum from the homeowners. So, that clause is liable to be set aside by the court. You should only take the possession once the occupancy certificate and completion certificate have been issued by the competent authorities. The maintenance amount would be made payable from that date only.
1) you can seek compensation for delay in delivery of possession
2)you are not liable to pay interest for delay in taking possession as builder has not completed painting of flat , poor civil work
3) builder can deliver possession only after obtaining OC / completion certificate
You can refuse to pay the maintenance amount tht he demanded because physically it ws registered on your name in the month December 2018, the papers are evidence for that.
You can demand penal interest for the delayed period to handover possession proper in all the respects.
You may even drag him to RERA or consumer forum for relief and remedy in this regard.
Hi,
In the present conditions, you have a fit case for compensation and same can be filed to RERA. You are suggested to first serve a legal notice to him in this regard.
1. BBA does not become null and void on registry
2. till possession is handed with occupation certificate, the builder is bound by that agreement
3. so you can definitely claim compensation and interest for delayed possession
4. you must refuse to accept the possession unless it is given to you with proper occupation certificate issued by local body
5. without OC you are not bound to take possession
6. you are liable to pay maintenance charges only after you are put in possession of the flat and not before
7. giving possession without OC is no possession at all
8. so the builder's demand for maintenance is illegal
9. his threats of levying interest or penalty of 24% if maintenance is not paid are only empty threats. Builder is aware that his acts are illegal
10. please either approach RERA or file a consumer complaint against the builder complaining unfair trade practices by builder and for compensation for delayed possession
11. do not get intimidated by the builder's threats. He cannot do any such thing as threatened
You should file a consumer case as you have a good case. He is trying to extract money from you for things he did not do.
Regards
yes you can claim compensation and there is no need to give maintenance, till the time the entire services as given by the builder has been provided.
Regards
Builder cannot force you to accept the physical possession an start billing you for monthly maintenace since the flat till date is not in a habitable condition. Fit case to approach UPRERA and moot your grievances.
Feel free to get in touch.