• Builder not in possession of land but executed BBA

I booked a house from a reputed builder in NCR region in December 2009. The Builder Buyer Agreement (BBA) was executed in 2010.The BBA states that "whereas the company along with its group of companies, associates and collaborators is the owner in possession of land admeasuring about XXX acres falling in the revenue estate of villages XXX ." I have so far made payments as per construction link plan corresponding to commencement of earth work at site. The builder has neither given me possession so far nor has he given any assurance of likely date of possession. It has recently become known to me that the plot where I have been allotted the unit is not in possession of the builder. In light of the fact that the builder has categorically stated that he is in possession of the land on which I am being allotted a unit, can I hold him liable for breach of trust. What are the provisions of property law in this regard?
Asked 10 months ago in Property Law from New Delhi, Delhi
Religion: Hindu
There is no embargo on executing a BBA even if the builder is not in possession of the land. However. to claim being in possession when you are not, with the object to enter into an agreement, is an act of cheating and fraud. You can thus file a lawsuit against the builder to recover with compensation the amount paid to him. A criminal complaint for cheating and breach of trust can also be filed against him. Both the cases can be filed simultaneously. 
Ashish Davessar
Advocate, Jaipur
18244 Answers
449 Consultations
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1) builder has committed offence of cheating and criminal breach of trust under section 420 read with section 406 of IPC 

2) builder with intent to deceive has made false averments in the BBA  that he is possession of land . Had the truth been disclosed none of the purchasers would have entered into agreement with builder for purchase of flats 

Ajay Sethi
Advocate, Mumbai
23375 Answers
1225 Consultations
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Hi, Whether you have entered any agreement with builder, if so in the agreement it is clearly stated that you will get the possession of the property on specific date.

2. If there is no specific date then you can file a consumer complaint for deficiency of service  and also for refund of the amount.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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1, What is the date of possession as per the agreement? If it has long expired for reason within the control of the builder then you have cause of action to seek legal remedy.
2. File a case before the consumer forum asking for damages out of the delay, possession asap and completion of deed of conveyance.
3, You will get compensation as well along with usual reliefs.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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This is widespread problem faced by numerous buyers where they have invested in projects allured by misrepresentations/false promises made by the builders. Courts have taken strict notice of such violations and many builders have been jailed for taking the buyers for a ride. Even the consumer courts have been ordering refund of amount invested by the buyers along with hefty penalties. 
Options open for you is to get refund of your money by filing a complaint in the Consumer Court along with a suitable interest and in addition you can also file a criminal complaint of cheating with the Police/Magistrate. In such cases Consumer/Criminal Law is involved and property law is not relevant.       
H. S. Thukral
Advocate, New Delhi
520 Answers
125 Consultations
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In light of the fact that the builder has categorically stated that he is in possession of the land on which I am being allotted a unit, can I hold him liable for breach of trust. What are the provisions of property law in this regard?
If you foresee some hidden danger or there is no transparency in the dealing and no sight of handing over possession of flat/property, you may opt to cancel the booking and sale agreement citing the reasons for the builder to have breached the agreement conditions and may even demand interest on the amount already paid.  You should not allow him to deduct money on cancellation clause because it is not your fault. You may drag the builder to consumer forum seeking relief of refund with interest and compensation for the mental agony you suffered due to this. 
T Kalaiselvan
Advocate, Vellore
14158 Answers
127 Consultations
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