• Delay in possession of flat by builder

In response to the advertisement in "Hindustan Times" during October 2010 stating  possessions by early 2011, undersigned approached  and  visited the site office  Chandigarh based builder and met sale representative of the builder with intention to purchase an apartment. As per the site condition at the time of visit, main RCC structure along with slabs for towers were complete. It was visualized that in the event of delay if any resulting in over shooting of the advertised schedule, possession by maximum end 2011 was anticipated under all circumstances. After having a look at the sample flat it was discussed for the cost. The cost quoted by the sale representative was beyond the stipulated budget as such undersigned returned back with indication of my budget to him. The sales executive assured of feedback after discussions with his seniors on the price indicated by me. After discussions with his seniors he visited my residence with a proposal which still being beyond my capacity and was turned down. On 27.11.2010 I was called to the office builder for further negotiations with senior sales person of the builder. I was firm on my bid and the same was also communicated through E- Mail. There was a proposal (through E-mail) also from them for acceptance of my quote with condition of 50% upfront payment. Understanding my inability it was not accepted and I wedged to my quote as last offer conveying clear intention of withdrawing beyond that. However With a hope and as a serious gesture from my end I handed over account payee cheque toward booking amount to builder with clear instruction to present if and only if my proposal is acceptable with deferred payment plan. This was indicated to be full and final settlement from my end toward the cost of apartment as a complete unit with stamp duty extra or return the cheque otherwise. After a gap of few days, the cheque was presented by builder for payment and a receipt No. 962 dated 03-12-2010 was issued.
There after the builder was approached for signing of agreement as it was need for Housing loan form LIC Housing Finance Limited / other. Agreement is mandatory as part of documentation for sanction of loan. It was made to understand by the builder that agreement could only be signed after 50 % payment is made toward the cost of the unit. On going through the draft agreement, undersigned approached sales people I was dealing with on some of the clauses stated therein which were in total deviation from the conclusion made at the time of deal and in no way as per the terms mutually agreed and settled. It was resolutely cleared by both of them that they respect and adhere to terms agreed with you. This agreement just being a formality to facilitate sanctioning of loan from the financial Institutions and is a standard printed material and there is no need to worry about. After repeated firm assurance from both of them and also in view of our desperate requirement for sanction of loan, 50 % payment was arranged and signed the paper as such on dated 12th February 2011.
After a lapse of time observing the pace of work on ground, undersigned approached the builder personally and conveyed through Emails also concern over very slow progress of work with completion in no way as advertised and even much beyond that. Surprisingly there used to be no return mails but only verbal assurances which were in no way proportional to actual site conditions.  Initially considering delays as anticipated in any civil works some how it was taken lightly. But it became a matter of concern when nothing was clear till end of 2011 and even beginning 2012. We started visiting and communicating with site staff, responsible persons in their registered office at Chandigarh and communicating through E-mails conveying our concern over these inordinate delays and for time schedule, but there used to be no response or satisfactory reply. Rather their accounts department approached us for running payments. The situation became disturbing when we were asked for payments beyond the plans and some other payments too (for the electrical panels and service taxes etc.)  inspite of the fact that the deal was closed for cost of the unit as a whole. On contacting concerned sales persons and reminding them of assurances made initially and failure of internal coordination within their office, they could not respond appropriately and tried to overlook the issue. There was no response to these e-mails, even they used to avoid personal meeting to discuss on the matter and tried to convince in one way or the other through irrational reasoning. The matter being still undecided we were pressurized to make the payments even for the stages of construction which were neither started nor  previous one completed on pretext of cooperation from our end for completion. Even they issued demand letters for us to approach LICHFL for release of payments against those stages which were yet to start.
With last payment of installment on 05-12-2012 the builder already have 95 % payment. It was to be made on completion of all services with in the apartment with remaining 5 % on possessions. 
In between we approached with the proposal of changing allotment and shifting us in the blocks where the construction was complete and few families already moved in but it could not be materialized.
With main structure and RCC work completed two years back, the remaining activities are almost at a standstill. Due to unknown reasons the over all condition of Block is like an abandoned structure. Various internal works such as wall tiles, Internal Plaster, Flooring, brick work, Electrical and other internal finishes along with services are either not started or left incomplete. With all scaffoldings in position for now about two years completion of external work of the block is no where in site. Stairs and entry to the flat is still underdone with unsafe access to the apartment. Every time on being contacted there is an unresponsive reply of completion within 2-3 months with nothing actually moving on ground and this is happening for almost two years. 
I am facing a financial burden of installments of housing loan, rent of present house along with lot of mental agony. Please advise how should I proceed. 
I look forward for your valued advise please.
Asked 4 years ago in Property Law from Mohali, Punjab
To begin with, you committed a blunder by giving a cheque even prior to the agreement being made. You must understand that an agreement is never a mere formality. Signing the agreement amounts to an acceptance of the clauses contained therein. The terms and conditions of the agreement bind both the parties once they have signed on the dotted line. Your right to bring a legal action against the builder flows out of the agreement that you have signed. If there was any clause couched in legal language included in the agreement restricting your rights to bring a particular legal action then your rights will be so restricted. 

You do have a right to seek damages from the builder for the inordinate delay in the completion of work, but it remains to be ascertained as to whether this right has in any manner been restricted by the agreement, which would require a thread bare perusal of the terms and conditions of the agreement.
Ashish Davessar
Advocate, Jaipur
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