• Refund order from RERA received but the builder is going into liquidation

I have received a refund order from UP RERA, but when the same was not complied then I filed for execution. RERA has issued a notice to the builder and asked to comply with order and if the same is not done then recovery proceedings will be initiated under land revenue dues. Please note that the building has not yet started for construction.Now I heard that the builder is going under liquidation. So my queries are as below:
1. What are the chances of recovery of amount as per RERA order if the builder is going under liquidation?
2. What are the steps to be taken to recover the amount in such a scenario?
3. What will happen to my liability towards bank as loan has been taken against the said property?
Asked 3 years ago in Property Law
Religion: Hindu

2 answers received in 1 hour.

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8 Answers

  1. If the builder is public limited company, his liability being limited you will be entitled to recover your advance only what remains after adjusting of his assets against preferential liabilities like dues of Government, remuneration labour etc.
  2. If the builder is not limited company, it cannot seek liquidation but it can file insolvency petition in the Court of Small Causes. In that case also you get proportionate refund with other debtors.
  3. Your liability towards bank will not be reduced, bank will recover full debt with applicable interest.
  4. You can file criminal complaint for fraud under Section 447 of Companies Act in the Court of economic offences if the builder is limited company otherwise file a criminal complaint for cheating under Section 420 in the Court of Magistrate, this is the fasted way to recover you dues due to possibility of builder going to jail. A case of fraud is clearly made out.

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

If builder goes under liquidation then IBC law will decide the fate of your recovery.

The IBC will first try to revolve the builder if can by appointing resolutional professional 

The bank will take steps as per sarfesi if loan is not paid but in this case as building is not constructed bank is unable to take any possession of said flat 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

If builder is going into liquidation you would be able to recover your money if assets are more than liabilities. If on other hand liabilities are more you would be able to recover your money depending upon amount due and payable by builder to his creditors 

 

2) you have to continue to repay loan taken by you from bank 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1.  If the builder goes for liquidation then the the creditor can avail the benefits under the IBC law.

2. The IBC 2016 has laid down a collective mechanism for resolution of insolvencies in the country by maintaining a delicate balance for all stakeholders to preserve the economic value of the process in a time bound manner.

3.  You may have to repay the bank home loan as per the EMI arrangement with the bank or the bank may take action against you for recovery of the same.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

You'll have to approach NCLT to get your money to a creditor once the builder goes for insolvency under IBC. RERA orders would to stayed once he goes for insolvency.

You will have to continue paying the email account towards the bank loan which you have taken against a said property. Failure to pay the EMI for consecutive months will result in bank initiating recovery proceeding against you irrespective of the fact that you have been defrauded by the builder.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

1. You can get your amount as per RERA order , even if builder is going under liquidation , as the builder will not declared as insolvent until he paid the amount of consumer

- Court will pass its order for the auction of the fixed assets of the builder for refund the amount of the consumer. 

2. If the builder apply for liquidation , then you can approach that tribunal after submitting the said order of RERA 

- Further, you should file the execution application before the RERA for getting the entire amount , and the said court is bound to attach the fixed assets of the builder for the reimbursement of your amount. 

3.  You have to continue to pay the emi of the bank until you get the refund of the amount from builder , otherwise the bank can proceed for the recovery of the dues amount against you. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

Dear client I am sorry to hear that but in the case since the builders going into a liquidation process then you have to wait until the liquidation happens full stop when the liquidation will happen you will receive your money/ refund

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

1.  and 2. First check whether the builder is under liquidation. If true, you will wait in queue amongst the creditors in the liquidation proceedings, after filing your proof of debt with the Official Liquidator.

3. When the building work has not yet started, how much bank loan has been released? Your not getting a refund from the builder will not stop the bank from recovering the loan from you, legally.

 

Swaminathan Neelakantan
Advocate, Coimbatore
3070 Answers
20 Consultations

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