Hi I booked a flat in ATS Le grandiose Phase 1 in august 2015. Now the project is almost ready but some creditor filed with NCLT against the builder. The IRP order is issued and the builder has again started taking payments and making flats ready. Now my question is, builder is asking for complete payment. Whereas as per the allotment letter, builder should pay 5 rs per square feet amount per month for the number of months of delay. Can I force the builder to adjust the same in final payment? If yes, how. Please guide.
You can request builder to adjust balance payment against compensation payable by builder for delay in delivery of possession
2) if he refuses make full payment and take possession of flat
3) then sue builder to recover compensation amount for delay in delivery of possession
What is mentioned in IRP order ?
If its mentioned that builder has to pay Rs5 per sq ft as penalty for delay in giving possession of flats. Then I can to support of the order and ask builder to compensate between the penalty amount and final amount.
Dear client,
Sorry to hear about your situation. The Real Estate (Regulation and Development) Act, 2016 (RERA) governs real estate transactions. RERA Section 18 addresses the right to damages for possession delays.
Hope this helps you.
Yes, in terms of agreement you can ask for adjustment or payment.
I am unable to file an online RERA complaint as the matter is with NCLT. So the UP RERA website is showing error popup that you cannot register complain here. Also 5 Rs per square feet is the penalty written in the allotment letter. It's not the penalty specified by IRP. IRP order came because some other creditor has balance payment of around 500 crores so he filed for bankcrupty. So IRTP order does not say anything about delayed payment. As I understand, my 1st option is to check with builder and ask him to adjust the penalty amount. Can he provoke force majure clause of the agreement as COVID happened in between? Also, if builder does not agree, then what should I do? What's the procedure in Uttar Pradesh to sue him or any better way?
Your understanding is correct ask builder to adjust
if he refuse you can file complaint against builder before consumer forum and seek orders to direct builder to pay compensation for delayed delivery of possession
You have not mentioned if the builder has delayed the possession of property after completing the constructions.
If there is a delay to hand over possession then you are entitled to payment for delay, therefore you can inform the builder in writing to adjust the payment from your side out of the amount he has to pay, but make sure that you do not delay the payment from your side because he may charge penalty for the delay in making the payments.
Since the matter is pending against the builder before NCLT, the RERA may not entertain the complaint, however there is nothing to prevent you from making the complaint in person by filing it physically.
If you do not want to go through the legal process then you can demand the builder to adjust the payments out of the penalty he has to pay due to the delay in completion beyond the stipulated date.
If he still adamantly refuses to adjust and demands the payments from you then you may approach the consumer forum for deficiency in service and unfair trade practice too.
You can file in rera or consumer court the complaint against builder and seem compensation
once the builder company has been admitted to the CIRP the management of the company is taken up by the IRP appointed by NCLT
So the builder cannot raise any demand now from you as the management of the builder is with the IRP
As regards the penalty the builder agreed to pay to you in the allotment letter, you will have to file a claim with the IRP
if the date for filing claims has lapsed, then you will have to file an application to the NCLT for a direction to the IRP to accept and admit your claim
Dear client,
In Uttar Pradesh has anything to do with NCLT proceedings, you might have to contact the relevant courts. Force majeure clauses usually protect against unanticipated occurrences, therefore the penalty may vary depending on the details of your agreement. Talk to the builder about changing the penalties and stressing the specific situations. Consider delivering a legal notice outlining the conditions of the agreement and possible legal action if the builder refuses to cooperate. After the NCLT situation is settled, you can file a complaint with the Real Estate Regulatory Authority (RERA) if the problem continues. The RERA Act's Section 18 addresses complaint filing. Seek legal counsel to learn about your rights under the agreement and applicable provisions, such as RERA Section 18(1)(a), in order to pursue redress.
Hope this helps you.
- As per law, a builder cannot demand more amount than that was fixed at the time of booking the flat.
- Further, the Supreme Court, held that term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.
- Further, held that incorporation of one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder
- Hence, the builder cannot ask you more payment on any grounds which was not agreed by you at the time of booking the flat.
- You can file a complaint before the Consumer forum against the builder
