• Builder agreement

I booked a flat with a builder in Pune in 2014. At the time of booking, I was assured possesion in july 2017. I paid booking amount of rs 300000.
I registered the agreement in 2015 and obtained the registered agreement after few days from builder office. I paid stamp duty, registration and further 300000 to builder before registration.
The builder has included following clause regarding possesion.
"The promoter shall give possesion of unit to purchaser on or before 36 months on receiving the entire balance consideration amount and other dues from purchaser."
I am confused because I will pay slab wise and expect most payments will be completed by 2016. Does this clause mean that builder can give possession only in 2019?
I dont remember seeing this clause at registration when I signed the agreement papers. Further, the page with this clause on it does not have my signature also, but has the seal of the sub registrar.
Is it possible to cancel this clause and put a new one with exact date of possesion ie in 2017?
What are my options to protect my interests?
Asked 1 year ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) as per this clause builder can deliver possession within 3 years of payment of full consideration . 

2) hence builder can deliver possession by 2019 .

3) send email to the builder that no such clause had been agreed by you that said clause has been incorporated subsequently 

4) that as per your discussions at time of booking it was agreed that possession would be delivered by July 2017 

5) ask builder to confirm in writing that possession would be delivered as per date originally agreed to 

6) in the event builder refuses to do so cancel the agreement and seek refund of money paid with interest 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
1) first write to the builder and wait for his response . 

2) if it has the seal of sub regsitrar on said page it would appear that said clause was part of the agreement signed by you . inadvertently you may not have put your initials on said page

3) commitment made by builder that he would deliver possession by 2017 is sufficient . it need not be registered  
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
Hi, it is better Builder has to mention the date of possession( example 31-03-2017) so that you can claim the possession of the property or other wise it is difficult to get the possession of the property.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. it is standard form of agreeent. 

2. in this agreement buyer has no right to alter any terms and conditions.

3. but you have remedy that it shall be strictly interpreted by the court and it always favours the buyer. 

4. if terms is against the principle of natural justice or against the settled law or customs of business then it shall be treated as void. 

5. in your case this term seems void, you should file complaint before consumer forum for specific performance of contract  & possession on the payment of cost of flat. 
Shivendra Pratap Singh
Advocate, Lucknow
2693 Answers
41 Consultations
4.9 on 5.0
You do not have to worry about the clause which is prompting you to ask this question - your clause ""The promoter shall give possesion of unit to purchaser on or before 36 months on receiving the entire balance consideration amount and other dues from purchaser." - this means that the possession will be handed over within 36 months but  will be on receiving the entire consideration amount.  It can be read as the possession will be given after receiving full consideration amount and not as what you have understood. 
Non-signing at the bottom of the deed canot absolve the responsibility since the document is properly registered. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1. The liability to give possession will begin when the consideration is remitted in entirety from you.This clause does not say anything about giving possession in 2017. 

2. If the page was not a part of the original agreement which you had signed it seems it has been included after the registration. You should ideally have involved your lawyer in the process of vetting the agreement before registration as lawyers know the escape routes which are taken.

3. The clause cannot be unilaterally cancelled. It can be cancelled only if there is a consensus. 

4. The absence of your signature on the page can be the legal basis of a lawsuit by you to seek the cancellation of the agreement.

5. If you wish to cancel the agreement and recover the amount paid till date then you may begin with issue of a lawyer's notice to the promoter. The doors of court are open for you if he does not meet your demand.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
1. The clause should have been drafted as "The promoter shall give possesion of unit to purchaser on or before 36 months from the date of registration on receiving the entire balance consideration amount and other dues from purchaser.",

2. The fact that the said page does not have your signature indicates that it has been inserted lateron in your absence,

3. Ask the builder for making a rectification of the agreement and register the said rectification with the same Sub-Registrar.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
1. Incorporate the rectification through the rectification document as advised in my earlier post which states that the builder will give possession of your flat within 36 months from the date of registration of the agreement provided he receives all due payments from the purchaser,

2. Once the said rectified agreement is registered without any additional stamp duty, you can stay relaxed in this regard.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
1) consumer forum generally give judgement in favour of purchasers 

2) ask the builder to give in writing that he would offer possession by 2017 as originally agreed to 

3) even if such a letter is given by builder it would suffice 

4) you can accept the money paid by builder under protest them move consumer 
Forum for recover of Rs 50 000 wrongly deducted by him 

5) builder will not refund stamp duty . Registration charges as they have been paid to govt and not gone into his pocket

6) you can seek refund of stamp duty paid from government if agreement is cancelled by registered cancellation deed with the builder 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
You cannot agree to  the dictates made by the builder as per his fancies and whims to return the amount. He  cannot refuse the  refund  if he has breached the conditions of contract and the same is liable to be terminated due to his fault.
You can drag him to consumer court for compensation and proper reliefs.

You should not sign any document the builder is asking you to do it in the name of refund.
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1. You have not seemingly committed a breach. The builder can deduct the advance amount only in the event of a breach.

2. You have the right to be refunded the amount in entirety including the stamp duty, registration, vat and service tax.

3. You may issue a lawyer's notice to the builder to seek the refund. Better sense may prevail on him after the notice from your lawyer as lawyer notices are taken seriously. If he does not refund the amount even after lawyer's notice you may go to court to sue him for the recovery of the amount and also to claim damages.

4. You are not bound to sign the document proposed by him. If you sign it you will not be able to make him liable through court.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
1. Your claiming refund of the amount bpaid is not a prudent decision,

2. Send the promoter a legal notice calling upon him to register the Rectification deed with in 15 days thereof as suggested in my earlier post and to clarrrify his position,

3. If he fails to comply with, file a complaint case before the local District Consumer Dispute Redressal Forum alleging deficiency in service and unfair business practice claiming registration of the rectification  deed or confirm before the Forum the builedrs point, damage and cost. 
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
1. initiate legal proceeding either by regular suit before civil court or file complaint before consumer forum.

2. According to section 72/72/75/37/38 of contract act you have right to get compensation or refund of money and cancellation of this agreement. 

3. In lily white case it is decided by the privy council that court is bound to take strict interpretation of the clause in favour of the party who had signed on standard form of contract. 

4. You'll appropriate order from the court. My advice is to go with consumer forum
Shivendra Pratap Singh
Advocate, Lucknow
2693 Answers
41 Consultations
4.9 on 5.0

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