Both forum are good but nclt is slightly speedy than consumer court.
In a dilemma to file case in NCDRC or NCLT
Hi I had booked a Flat under " construction linked payment plan" with Supertech Upcounty at Greater Noida. I have paid ~ 90% of the property value as per the construction linked payment plan.I have paid on time all the demands raised by the builder and as on data there is no demand raised and no outstanding to be paid . I have paid around 29 Lacs. As per the builder buyer agreement signed in Apr 2012 the flat was supposed to be handed over within 3 years ie by Apr 2015. Thus the project is running late by > 4 years and is likely to completed in 2 years or so. I had booked another flat under subvention scheme with Supertech Officers Enclave at Sohna, Gurgaon. Around 90% of the property value has been disbursed by India Bulls. As per the builder buyer agreement signed in July 2016 the flat was supposed to be handed over within 3 years ie by July 2019. However, construction is running at snails pace and builder has refused to pay PRE EMI till possession saying there are no funds and that all the PRE EMI's paid by me will be adjusted at time of possession. I want to have refund of the entire amount for both projects. However,the liability of the builder as per the agreement is Rs 5/sqft/month for the delay that is very less. I have sent a written notice via email to which the builder is not answering. What are the options available with me as I don't want the possession even if the builder offers the same due to inordinate delay and want to have refund with interest. Should i go for NCLT or NCDRC? The projects are RERA registered. Recently SC has given homebuyers status of financial creditor under IBC. But i am confused which is a better option? I have heard filing a case with NCLT will help me recover principal paid and compensation not interest paid to the bank, but recovery can happen within 6 months. Whereas filing a case with NCDRC will lead to recovery of principal, interest and compensation, but recovery takes 18-24 months. Please advise.
Asked 4 years ago in Property Law
Religion: Hindu
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12 Answers
Buyer cannot be made to wait indefinite for possession of flat with OC, CC. And SC also upheld homebuyers' rights as financial creditors under IBC - Prior right over operational creditors.
You are entitle to interest on delay possession or refund with interest. You can approach consumer court for refund with interest and compensation. But file now, limitation issue.
And Insolvency process will provide you refund with interest or without interest. Both can file simultaneously.
If company goes on liquidation then only you can apply to Nclt as creditor for any payment due from the company.
Before that any complaints regarding projects must be made to RERA.
Hello,
You have heard it right.
If you are saying that the project is RERA registered then why dont you file a complaint before RERA.
You may note that you will get maximum rate of interest if you file a case before NCDRC.
It is right that, it will take time for the case to get resolved before the NCDRC.
Regards
File complaint with NCLT if recovery process is faster
if you are able to recover your principal amount and some interest it is sufficient
a plea can be filed in NCDRC directly only if the cost involved is more than Rs 1 crore.
you can file an application in the NCLT for initiating the recovery process faster.
As home buyers have been given the status of financial creditor under IBC, I would advise you to file the case in nclt as that is the fastest and most efficient remedy in the facts and circumstances of your case wherein you want refund along with interest.
NCLT also gives interest. If case is filed in NCDRC would take a longer time to be disposed of. Under no circumstances should you file a complaint in rera as there is no enforcement of the decree.
Hi, it is to be noted that there has been a amendment in the consumer protection act ,where the jurisdiction in NCDRC, is above 10cr..Which implies that you will be needing other allottes to proceed your case with NCDRC ...With NCLT the procedure for recovery is quite different,where if the builder do not compromise,then the procedure of recovery will become complicated,as recovery will only be made after selling the assets of developer ..I advise you to approach RERA ,which is a fast trail court and the decision will be there within 4 months ..
1. Tough for refund of money out of cancelled sale agreement of flats you can approach NCLT under IBC , filing case before the consumer forum is more preferable option.
2 This is so because in consumer forum you can very well be awarded with ful refund and interest along with damages and compensation which is unlikely to happen in NCLT.
3. Recovery of your money within six months is very unlikely before the NCLT.
Since you have paid the consideration you therefore fall within the definition of consumer as described under Section 2(d) of the Consumer protection Act, 1986, which is reproduced hereunder-
consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
Moreover I feel there are reasons to clarify the scope and jurisdiction of NCDRC which is vested with revisional as well as original jurisdiction but the original jurisdiction can only be exercised if there the complaint is over and beyond 1 crore, so only ascertaining your claim you should proceed on choosing your forum, which might be District consumer depending on your pecuniary value of your complaint.
Therefore looking to the facts and circumstances all the requisite ingredients are present to institute a complaint case under the Consumer Protection Act.
Have you made a complaint with the RERA in this regard?
If not, better make a complaint before RERA and wait for their response.
If there is no response then you have options to either approach consumer forum at national level or the national company law tribunal.
If you are satisfied with the principal amount alone, then you may opt for NCLT solution.
Dear
Here NCDRC will be a good option for you because NCLT will come into play when builder declare himself insolvent and express his inability to complete the projects.
