• Delay in making payment

We had booked a flat at Bhartiya city, Bangalore in the year 2013 They were supposed to hand over the completed flat in the year 2016. They finally asked us to pay the balance amount and take possession in 2018 after a delay of one and a half year. I could not make the final payment and take possession due to financial constraint. They have charged us 18% interest for the delay in making the payment. whereas delay from their side, they are giving us Rs.4 per sq.ft. Which I felt is unfair.

We are now ready to make the final payment in two installments. one now and the other after 15 days. They are refusing to give us additional time 

can I go to the consumer forum to fight the case regarding the higher rate of interest charged by them. 
Can I refuse to take possession of the apartment and seek refund of the amount paid with interest.
Can you please share court order in similar cases.
Asked 16 days ago in Property Law from bangalore, Karnataka
Religion: Christian

You can file complaint against builder before consumer forum and seek orders to direct builder to charge interest for delayed payment at 10 per cent or so instead of 18 per cent 

 

also seek litigation costs and compensation for mental torture undergone by you 

Ajay Sethi
Advocate, Mumbai
62786 Answers
3828 Consultations

5.0 on 5.0

A complaint must be filed in the RERA tribunal immediately. These tribunals have been established specifically for real estate disputes.

Alternatively you can also go to the state consumer redressal forum.

Regards 

Rahul Mishra
Advocate, Lucknow
3638 Answers
10 Consultations

5.0 on 5.0

Yes you can go to consumer court and file the complaint for deficiency of service

Prashant Nayak
Advocate, Mumbai
9477 Answers
16 Consultations

4.8 on 5.0

You can approach consumer forum seeking redressal of your grievances in this regard. A latest judgment by supreme court in this connection is in your favor. 

"A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder." The Supreme Court has held that the incorporation of one-sided clauses in a builder-buyer agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986. The bench comprising Justice UU Lalit and Justice Indu Malhotra also observed that a builder could not seek to bind a flat buyer with one-sided contractual terms. The bench was considering an appeal against National Consumer Commission order that held that the Clauses relied upon by the Builder to resist the refund claims made by the complainant buyer, were wholly one-sided, unfair and unreasonable, and could not be relied upon.

Perusing the agreement, the bench found that there are stark incongruities between the remedies available to both the parties to the agreement. For instance, the Agreement entitles the Builder to charge Interest @18% p.a. on account of any delay in payment of installments from the Respondent – Flat Purchaser. Whereas, the Builder is liable to pay Interest @9% p.a. only for delay in delivering possession of flats.

In the judgment upholding the consumer commission's order, the bench referred to Section 2 (r) of the Consumer Protection Act, 1986 which defines 'unfair trade practices' in the following words : "'unfair trade practice' means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …",

The bench observed that this definition is not exhaustive and observed: "A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder."


T Kalaiselvan
Advocate, Vellore
52880 Answers
635 Consultations

5.0 on 5.0

 if you have any dispute over penalty for delay possession  please see your builder buyer agreement for this as you may have a treat for rupees 4 square feet for delay in possession how weather final payment you may negotiate with the builders if they agree for payment to be made in 2 installments.

Vimlesh Prasad Mishra
Advocate, Lucknow
5021 Answers
12 Consultations

4.9 on 5.0

Dear Sir,

You may search relevant judgments on the following site.

https://kscdrc.kar.nic.in/

Kishan Dutt Kalaskar
Advocate, Bengaluru www.kishanretiredjudge.com
4085 Answers
98 Consultations

5.0 on 5.0

I understand your grievance and this a usual case of fraudulent practices, practiced by the builders these days. It is advised that you immediately serve them a legal notice to secure your interest. 

Mohammed Mujeeb
Advocate, Hyderabad
7888 Answers
3 Consultations

4.5 on 5.0

1. If you have agreed to the rate of interest at the time of signing the agreement then you will have to abide it. 

2. Yes, that you can do on account of delay made by the builder

3. You may refer to the following judgment : 

https://indiankanoon.org/doc/173036175/

 

and there are many to support your case. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
16050 Answers
235 Consultations

5.0 on 5.0

You should not pay theexorbitant interest charged by the builder as the delay in possession is due to the fault of the builder and the terms of the agreement are unilateral and are liable to set aside by the court.

You should file consumer case against him for deficiency of service and unfair trade practices where in you can see entire refund along with interest, compensation and litigation expenses.

Siddharth Jain
Advocate, New Delhi
4382 Answers
45 Consultations

5.0 on 5.0

Dear Client,

One Sided Clauses In Builder-Buyer Agreements Is An Unfair Trade Practice, if builder is charging you 18% than for delay possession also have to pay penalty on same interest rate.

Complain to RERA and for delayed possession you can even demand refund with interest. And compensation from consumer court.

 

You can even file police complaint of cheating that first possession not delivered on time and now demanding interest as blackmail.

Yogendra Singh Rajawat
Advocate, Jaipur
10619 Answers
9 Consultations

4.6 on 5.0

Yes you can do the same

 


several judgments latest judgment is 

Supreme court in Kolkata West International City versus Devasis Rudra case on 25th march 2019

Prashant Nayak
Advocate, Mumbai
9477 Answers
16 Consultations

4.8 on 5.0

You can ask the builder to refund the booking amount with interest at the market rate in the consumer forum, let him give a reply based on his own story.

You can produce the judgment of the supreme court in this regard stating that the one sided agreement has already come under criticism by supreme court and the builder cannot take shelter on the one sided agreement to deceive the customers anymore.

 

T Kalaiselvan
Advocate, Vellore
52880 Answers
635 Consultations

5.0 on 5.0

You can cancel the booking and seek refund of your money for delay in delivery of possession 

 

if builder has delayed delivery of possession you are entitled to interest for delay in delivery of possession 

Ajay Sethi
Advocate, Mumbai
62786 Answers
3828 Consultations

5.0 on 5.0

Rate of interest is not a fixed amount, it varies depending upon the State rules and the agreement between the buyer and the builder. 

Mohammed Mujeeb
Advocate, Hyderabad
7888 Answers
3 Consultations

4.5 on 5.0

There was a delay from your side too  it they didn't object to it because they themselves were not ready to deliver the possession. Hence give a notice along with 14 percent interest.

Regards 

Rahul Mishra
Advocate, Lucknow
3638 Answers
10 Consultations

5.0 on 5.0

Yes you can go to consumer forum for dispute resolution.

And also file a complaint against the builder under section 31 of RERA act to regulatory authority Eatablished under the act for charging higher interest rate as compare to delay charge. 

And if you want refund due to delay in possession you can apply for refund with interest Under section 18 of RERA act. 

Mohit Kapoor
Advocate, Rohtak
1314 Answers

5.0 on 5.0

Yes, 9%, first default committed by builder, so you absolved from any penalty for late payment.

Yogendra Singh Rajawat
Advocate, Jaipur
10619 Answers
9 Consultations

4.6 on 5.0

Please tell whether the deal y was there on their part and as such you were reluctant in making the payment or the delay was their on your part only in making the payment? 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
16050 Answers
235 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that firstly they delayed at their end not you though it is also right that you didn’t take the possession father the delay at their request due to some reasons.
  2. Still you have the reason to ask for the refund of money as they have delayed in giving the possession and also in the limitation period to challenge their delay due to which they can’t even take the plea of one year delay at your end.
  3. You should approach the State Consumer Forum or district depending upon the amount of the property and claim amount.
  4. And yes they are not justified in charging that much of interest irrespective of the fact that whether the same has been mentioned in he agreement or not.

Sanjay Baniwal
Advocate, South Delhi
4316 Answers
8 Consultations

5.0 on 5.0

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