• Cancellation of flat sale agreement and refund

Sir,

1. I made a sale agreement to buy a flat by paying Rs.10 lakhs and applied loan in DHFL and got the loan sanction of 25 lakhs out of which 20 lakhs have been released to builder and emi has started for me
   
     When i applied the loan in SBT they rejected the application stating that flat has more than 75% deviation which the builder has not disclosed during agreement.

     Now i decided to cancell the agreement and send one cancellation letter by speed post and also by mail for which the builder acknowledged through mail stating that they accept the cancellation and will refund the amount as soon as possible .

       i send the cancellation letter on 25.5.15 and almost 1 month happen still the builder has not given any amount. he says he will give the payment after he sells the flat.

       iam really confused whether to go legally or not. i heared that if we go by court then it will take long time to get money and sometime we may not get???

       so please advise what i can do in the current situation. shall i wait or should approach legally
Asked 1 year ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) cases in consumer forum take 2 years to be disposed of 

2) unless you pressurise  builder he may not pay you  soon 

3) it is better you  move consumer forum and seek refund of money with interest and also compensation for mental torture undergone by you on failure of builder to refund your money with interest 
Ajay Sethi
Advocate, Mumbai
23177 Answers
1217 Consultations
5.0 on 5.0
The builders often make delay to make refund. Hence wait for sometime and follow up the matter with him.
If he refuses to make refund or harass you a lot then file case in consumer forum where you can ask for damages also.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
A. In your case, there is no option to obtain paid amount without approach the Consumer Forum, file a complaint before the Consumer Forum under the deficiency in the service and claim damages additionally.

B. Generally, the Court will take minimum 1 to 2 years based on workload in the Court. Your amount will be refunded with an interest through court order and you can claim damages for mental agony by virtue of the builder's breach of trust. And lodge the criminal complaint against the builder under the cheating and criminal breach of trust.
B.T. Ravi
Advocate, Bangalore
736 Answers
29 Consultations
5.0 on 5.0
1. On what legal ground have you applied for cancellation? Were you not aware of the deviation at the time of the execution of the agreement?

2. You must note that cancellation and refund is possible only within the four corners of the agreement itself.

3. If the letter was issued in accordance with the agreement and the builder has promised to refund the amount he is obligated to refund he amount.

4. You may issue a lawyer's notice to the builder to seek the refund of the amount paid to him. If he does not pay back after it you can sue him to recover the amount and also compensation.

5. If the case is handled deftly it should not take you too long.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
If the builder delays the refund inordinately without any reason you may once again approach him demanding it.  If this fails to bring any result, you may issue a legal notice demanding the return of the advance amount as was agreed by him through his email and can enclose a copy of his email.  You may secure the email in its original format so that it can be produced before court to substantiate your claim if at all there arises a necessity. 
No doubt approaching court for recovery will take some years but you can approach consumer forum where the cases are decided fast. 
T Kalaiselvan
Advocate, Vellore
13969 Answers
127 Consultations
5.0 on 5.0
1. Personally meet the builder and get information about the date by which time he refunds the amount to you.
2. When he specifies the date, ask him to give a cheque for the amount, to be encashed by you on the specific date.
3. On the specific date, present the cheque to the bank, and if you can encash it, then your problem will be solved.
4. If the cheque bounces, send a legal notice to the builder U/s. 138 of Negotiable Instruments Act to pay your due amount within 30 days from the day the information from the bank is received to the effect.
5. If the drawer fails to refund your amount within 15 days from the date of receiving the legal notice, then cause of action arises and you can proceed legally U/s.138 of N.I.Act.
Shashidhar S. Sastry
Advocate, Bangalore
1233 Answers
59 Consultations
5.0 on 5.0
1) you have cancelled the agreement 

2) builder has accepted cancellation request 

3) builder can   sell flat to third party 

4) you have not mentioned whether  you intimated DHFL about cancellation of agreement ? your flat must have been mortgaged to DHFL . 

5) you cannot unilaterally cancel agreement without taking lender into confidence  as lender has disbursed Rs 20 lakhs to you against security of the flat 
Ajay Sethi
Advocate, Mumbai
23177 Answers
1217 Consultations
5.0 on 5.0
The builder cannot sell the property without your consent, if he does it this can  be considered as an  illegal act for which you have remedy in both  criminal and civil laws. However it is advisable that  you  act fast without  delay.  
T Kalaiselvan
Advocate, Vellore
13969 Answers
127 Consultations
5.0 on 5.0
1. Cancellation of the agreement of sale by you has to be brought to the notice of DHFL company.
2. Also, you can look into their loan sanction letter, wherein the DHFL would have mentioned the action to be taken in case of such a solution in which you are facing now.
3. The Builder has to inform you & the DHFL before entering into a fresh agreement of sale for the same flat.
4. Also inform the builder in writing that any fresh transaction in respect of this particular flat has to be informed to you & the DHFL, before confirming the sale of flat to anybody else.
Shashidhar S. Sastry
Advocate, Bangalore
1233 Answers
59 Consultations
5.0 on 5.0
1. Unless the agreement entered into with you is cancelled the builder cannot sell the flat to someone else.

2. He can cancel the agreement only if you have violated it.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1. You have cancelled the agreement for the builder's illegal and unauthorised deviation from the sanctioned plan in constructing the flats,

2. The builer is bound to refund you the money paid by you towards advance amount with interest,

3. Send him a legal notice asking him to refund the said amount with interest within next 15 days,

4. If he fails, file an application before the local District Consumer Redressal forum alleging deficiency in service and unfair business practice claiming refund of the said amount wih interest at Bank rate, damage and cost,

5. Consumer cases are quickest to be disposed off in comparison to cases heard by other civil courts.
Krishna Kishore Ganguly
Advocate, Kolkata
12088 Answers
229 Consultations
5.0 on 5.0
1. Has the builder signd any tripartite agrement with the Bank?

2. If yes, then he builder can not deal with the flat with out the consent of the Bank,

3. Moreover, under no circumstances repayment to you for your cancellation of booking can be made conditional upon the builder's selling the flat to a third party,

4. File the complaint case as suggested in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12088 Answers
229 Consultations
5.0 on 5.0

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