I had booked a Unit No: EFS-B-C-GF-064 in February 2012 with Emaar MGF and have paid the due value of property (30%) as per builder buyers agreement within the stipulated time. The agreement does not provide date for completion and handing over possession of unit. I was however clearly told by the sales team that in worst case the project will get complete by 2016 and construction for the unit was expected to start by end of 2012 itself. Over the years whenever I have gone to the site and asked about when will the construction of my unit start, I have been told that it will start in 3 months. I had bought the unit for my family to live in and I am extremely frustrated with the delays and verbal commitments and assurances that do not get fulfilled and I do not see the project completing anytime soon. In last communication builder has advised:- 1. Emaar MGF will provide a tentative planned schedule for your Unit No: EFS-B-C-GF-064 (booked in February 2012 expected to be delivered 2016), tentatively by end of January'16 (which means that such tentative plan is yet to made ready and taken up); 2, Emaar MGF will provide Compensation for delay in possession as per the terms of the executed Buyers Agreement and will honour the same (however the compensation clause mentions after 3 years from beginning of construction - which is yet to begin). Kindly advise the legal recourse available to me.
Hi, as Agreement of Sale it has to be mention that the date of possession and it is very important for the customer point of view because you must know the when you will able to take possession of the apartment.
2. In the agreement there is no such clause so it is better you approach consumer court for cancellation of the agreement and also for refund of the amount, as there is a deficiency of service on the part of the Builder and you are entitled for the amount.
1) what is the stage of construction ?
2) it is necessary to peruse builder buyer agreement to advice
3) if construction has not yet started cancel the booking and ask builder to refund your money with interest
4) if builder fails to do so move consumer forum against builder for deficiency in service and seek refund with interest
5) also seek compensation for mental torture undergone by you
6)the agreement entered into by builder with flat purchasers are heavily loaded in favour of the builder .
7) if builder is seeking interest for delayed payment he has to pay same interest rate to flat purchasers for delay in completion of project whatever may be the clauses in the agreement
Please clarify:- 1. Id builder under legal obligation to provide date of handover of possession for the floor booked in 2016? 2. May I cancel the booking for builder to provide a definite construction schedule and date for handing over possession, particularly in view of the fact that it has not commenced in -4- years from booking and there is no activity on site; 3. Should I include the value of registration money paid and compensation claimed for loss of interest and increase in cost of alternate properties meanwhile from 2012 to 2016 in claiming in consumer redressal forum and the level thereof? 4. Can I file a criminal case for such failure?
Hi, it is very important to mention the date of possession in the Agreement if the builder has not provide the actual date of possession you will not able to know when you will get the possession of the property.
2. You can file a consumer complaint for cancelling of the agreement on the ground of delay of possession and also sought for refund of the amount with interest and also registration charges.
1) if builder has given in writing that construction would be completed by 2016 then he s under legal obligation to do so
2) you can cancel booking as no construction done on plot for period of 4 years
3) you can claim refund with interest
4) you can claim compensation for loss suffered by you
5) forget criminal case move consumer forum only
Builder has not committed any date for completion of building and handover of possession in their standard Buyers Agreement. They have specified the Scheme, Area including Open Car Parking(s) for 3 Cars, Cost and our obligation to pay including interest for any delay/default and their right of termination for default in payment. The Buyers Agreement also provides for nominal payment by builder in case of delay in construction after their demanding payment of construction linked stage wise payment upto plinth, roof level and completion beyond 3 years from date of first such construction linked payment. This has not commenced. My question that is there any legal/commercial obligation on the builder to provide date of completion and hand-over of possession in Buyers Agreement. If yes, please guide us about such relevant provision/ruling or otherwise. If not, can we take no action for construction or progress in works or failure to provide such plan or even after 4 years, using terms such as "tentative plan for construction proposed tentatively" this as a basis for failure of service on the part of builder and file claim for refund of registration money with interest. Last whether we proceed in district or state or national redressal forum including registration money paid or only the basis of claim of interest and losses incurred?
Hi, there is no specific obligation in favor of the builder that he must include the clause that he has to handover the possession within specific time.
2. You have not take proper legal opinion before purchasing the property so now you are in trouble.
3. if the claim amount is less than 20 lacks then you have to approach District Consumer Forum, if the claim amount is above 20 lacks and below 1 crore then you have to approach State Consumer Commission and if the claim amount is more that 1 crore then you have to approach National Commission.
1) At present, there is no regulation that makes it mandatory for developers to give a specific date of completion of project .
2) in your case since there has been no construction carried out for 3 years you can cancel the booking and seek refund of money paid with interest
3) the jurisdiction of consumer forum would depend upon your claim . you cannot claim registration money as it has been paid to Govt and not the builder
The Buyers Agreement provides:- Quote: Possession: Time of handing over possession: Subject to the allottee(s) having complied with all terms and conditions, the Company proposes to handover the possession of the Independent Floor within 24 (Twenty Four) months from start of construction". The Company shall be entitled to a grace period of 3 (Three) months for applying and obtaining the occupation certificate. Compensation: In case within grace period of three months, Company is not able to hand over possession to the Allottee(s), the Allottee(s) shall be entitled to payment of compensation for delay at the rate of Rs. 7.50 per sq. ft. per month of the Super Area till date of the notice of possession. The Allottee(s) shall have no other claim against the Company. Delay in Payments: In case of delay in making payments by the Allottee(s) to the Company as per the Schedule of Payments, the company shall have right to terminate the Agreement and Forfeit the Earnest Money alongwith Non Refundable amounts. The Company shall be entitled to charge interest @24% per annum at the time of every succeeding installment from the due date of installment. Schedule of Payment: 1. On booking and within 45 days of booking: 20% of Sale Price, 50% EDC Due Date 7th April, 2012; 2. Within 90 days of booking: 10% of sale price, 50% EDC Due Date 22nd May 2012 3. Start of Construction and on basis of actual progress as defined: 65% Due Date: Still to be advised 4. Intimation of Possession:5% of Sale price Unquote Builder has taken first two payment 20+10 total 30% of Sale Price and 100% EDC and this has been deposited by us. They are still to demand construction linked 65% payment beginning with 10% on start of construction. Actual construction is still to be taken up. Though agreement provides for handover the possession within 27 months including grace period from start of construction, agreement is silent about date of actual start of construction. And this construction has not started inspite of booking taken by builder in February, 2012 even after 35 months of agreement. And for starting and schedule of construction, Builder have advised:- Quote:We would like to confirm that we will provide a tentative planned schedule for your Unit tentatively by end of January'16. Also please note that Compensation for delay in possession will be as per the terms of the executed Buyers Agreement, Mr. Agarwal and will honour the same. The relevant clause that protects the customer in case of a delay in handing over will be honoured at the time of possession and when the final Statement of Accounts are shared with you." Unquote:- In view of Buyers agreement being silent about start of construction and therefore completion with 24 months therefrom and compensation @ Rs. 7.5 per Sq. Ft. after 27 months from start of construction, may I file a case in consumer redressal forum for: Questions:- 1. For cancellation of contract, in view of builder not taking up and confirming precisely the date for doing so and refund of booking amount of 30% of floor cost (Rs. 90 lakh for floor cost Rs. 2.90 Crore) even after a period of 34 months from booking in February 2012; 2. Compensation: i. Ask for 24% interest as is levied by builder for any delay in payment from due date from date of payment till date in view of builder not proceeding with construction (though Buyer agreement provides for compensation @ Rs. 7.50 per Sq. Ft. only?; ii. Ask for suitable compensation for loss and inconvenience caused because of continuing to stay in rented accommodation until such time the apartment is handed over for this intervening lost period in taking up construction till completion as could be reasonably envisaged?; and 3. Any other relief that could be available for this purpose? Regards:
It seems to be an unnecessary delay in starting the construction. You may write to the builders stating that you would like to cancel the booking in view of the inordinate delay ven to start the construction and seek for refund of your amount paid as advance with interest.
1. Id builder under legal obligation to provide date of handover of possession for the floor booked in 2016?
Yes, the builder has to provide the date of completion of construction and handing over possession which should not be a delayed date.
2. May I cancel the booking for builder to provide a definite construction schedule and date for handing over possession, particularly in view of the fact that it has not commenced in -4- years from booking and there is no activity on site;
Since this delay is not under ordinary circumstance and there can be no valid reasons for this delay, you may decide to cancel the booking and seek refund with interest quoting the unjustifiable delay.
3. Should I include the value of registration money paid and compensation claimed for loss of interest and increase in cost of alternate properties meanwhile from 2012 to 2016 in claiming in consumer redressal forum and the level thereof?
Yes you can include them too to claim compensation.
4. Can I file a criminal case for such failure?
criminal case will lie only when there is a cheating, he has not yet cheated you.
1. For cancellation of contract, in view of builder not taking up and confirming precisely the date for doing so and refund of booking amount of 30% of floor cost (Rs. 90 lakh for floor cost Rs. 2.90 Crore) even after a period of 34 months from booking in February 2012;
Yes, you can communicate in writing to the builder about your decision to cancel the booking in view of the inordinate delay in starting the construction and as there is no indication about when the construction work may begin and also the loss of revenue due to such delay by way of paying exorbitant rent outside for long years for no fault of yours.
2. Compensation:
i. Ask for 24% interest as is levied by builder for any delay in payment from due date from date of payment till date in view of builder not proceeding with construction (though Buyer agreement provides for compensation @ Rs. 7.50 per Sq. Ft. only?;
ii. Ask for suitable compensation for loss and inconvenience caused because of continuing to stay in rented accommodation until such time the apartment is handed over for this intervening lost period in taking up construction till completion as could be reasonably envisaged?; and
You can seek compensation in terms of the pecuniary and mental loss you suffered or experienced so far due o the inordinate delay to begin the construction by the builder. You can draw him to the consumer forum.
3. Any other relief that could be available for this purpose?
Send the builder a legal notice demanding the compensation for the losses you suffered.
1) if no period is mentioned wherein construction would be completed it would imply that construction should commence within reasonable period of say 6 months .
2)builder has no business in selling flats and taking advance from flat purchasers if all the approvals were not in place .
3) since builder has failed to complete construction till date seek refund of money with interest at 24%pa being same interest charged by builder in case of delay in making payment
4) ask compensation for staying in rented accommodation .enclose evidence of rentals paid by you
5) also claim costs
Hi, you have entitled for all the above relief so it is better contact the advocate for drafting the complaint and he will do the needful.
1. If the date of delivery of possession has not been set out in the agreement the same is to be done within a reasonable time. The expression 'reasonable time' is a term which is capable of being assigned a subjective interpretation by the courts. Be that as it may, the reasonability of delivery of possession cannot be judged liberally or restrictively. It has to be determined having regard to the available resources, likely time to be taken in obtaining the mandatory sanctions from civic authorities and other genuine difficulties in completion of project.
2. The failure to commence the construction vitiates the relationship between the builder and buyer which is built on the eddifice of public trust. You can issue a lawyer's notice to the builder to cancel the agreement and seek the refund of the advance paid to him. If he refuses to refund the amount then you can file a lawsuit to recover the amount with compensation and interest.
3. Alternatively, you can file a lawsuit against the builder to seek specific directions from the court to commence the construction of the project and deliver the possession within a fixed time.
1. As I said earlier, the legal recourse available to you is two-fold-you may either cancel the agreement to seek the refund of the paid amount with compensation, or seek court's directions to the builder to honour the agreement and immediately commence the construction.
2. A criminal case is not made out in the given circumstances as no date for delivery of possession has been mentioned.
3. The absence of mention of date for delivery of possession in the agreement does not curtail the right of the buyers to seek appropriate relief against the builder from the court.
The builder cleverly omitted incorporating the date of construction. You should not have signed this agreement in the first place as the legal import thereof is designed to provide escape route to the builder. Had you got the agreement vetted by a lawyer before signing on the dotted line no lawyer would have advised to execute the agreement.
Notice Sent to Builder through E Mail Quote: Subject: EFS-B-C-GF-064/0028 (Unit Number: EFS-B-C-GF-064) - Meeting on 7.12.2015 at 11.00 AM for definite Construction Start, and Stage wise planned Completion dates The relationship between the builder, i.e. Emaar MGF and buyer, i.e. us is built on the edifice of confidence and trust in as much as as buyer we are expected to pay the agreed price and that Emaar MGF completes the residential units and handover possession in the period committed -24 months from construction start date or in reasonable period of buyers agreement. In view of complete failure on part of Emaar MGF in starting construction from February 2012 till date, we request you to accept and confirm:- First Option: Start the construction immediately and give us possession of unit within 24 months from January 2016, i.e. latest by March 2018 including 3 months grace period with keeping us posted with progress on monthly basis and pay us interest for our payment deposited meanwhile from respective due date (in view of no activity this far). Second Option: Give us a reasonable and viable alternative in your constructed premises/projects, for which you are in a position to give possession immediately. Third Option: Cancel our booking and refund the booking amount with interest at the same rate provided in buyers agreement for delay/default on our part. Not exercising any of the above option by Emaar MGF and confirming the same to us, would force us to seek legal redressal for breach of trust and failure to honor the commitment to handover possession of residential unit for our living within a reasonable period of buyers agreement (committed period of 24 months from start of construction that was to begin in 3 months from date of booking). We give you this notice as we continue to service EMI of Housing Loan availed, loss of interest on PF withdrawals made, and savings en-cashed to deposit the money demanded on respective due date(s), and continue to pay rent for premises hired/leased for living beyond period contemplated keeping in view Emaar MGF completing and giving possession of residential unit latest by beginning of 2016. We shall be looking for specific written clarification in respect of above from Emaar MGF, failing which we shall be proceeding to initiate legal action for suitable redressal of above at legal forums. With regards: Gaurav Agarwal/ Uma Agarwal B-3, 1702, World Spa West Sector 30 Gurgaon-122001 Haryana [deleted] (Gaurav)/[deleted] (Uma) Unquote. Question: Please vet above notice or provide model notice and draft petition before consumer court?
1) get notice drafted by lawyer
2) we don't provide model notice and draft petition
3) you have pay the legal fees of lawyer and he will draft complaint to be filed before national consumer commission
4) yiu don't need to give builder 3 options as given by you . Just cancel the booing and seek refund with interest
1) you are hurting your own case by saying that builder can start construction in January 2016 and deliver possession in 24 months time ie latest by January 2018 with 3 months grace period
2) in your legal notice you should proceed on footing that you had collected payment in February 2012 with assurance that construction would commence within 6 months and possession delivered within 24 months ie by September 2014
3) however although nearly 4 years have passed till date construction work has not yet started on site
4)hence seek cancellation of booking and refund with interest for delay in delivery of possession
5) hence i advised you to get legal notice drafted by local lawyer
The notice you have already sent hence there is no need to vet it anymore.
Whatever, the notice has clearly communicated your course of action in the given situation, at the same time your approach with the builder is appreciable and a right move.
You have not stipulated time limit within which the builder is required to give a reply or else you can approach consumer forum for the said reasons.
For a model or format of consumer complaint you may contact an advocate in person and get it drafted suiting to your taste or can contact anyone from this forum
This is not a lawyer's notice. The language is bare minimum which we expect a layman to employ. Get the notice drafted from a lawyer upon payment of his fee. We do not provide drafts here.