• Delay in flat possession - Sristi Oasis complex B wing (Sands)

Dear Sir,
I am writing you this mail to address my grievance due to delay in providing possession of my flat.
We have booked flat in Sristi Oasis complex B wing (Sands) 1st floor Flat no. 102 and lower basement Parking space no. 61
Builder buyer agreement was signed on 11th May 2011. As per builder buyer agreement, flat was to be delivered by December 2012. Flat has not been delivered till date 6th March 2016
We have paid all our construction link installments till date. We have already paid Rs. 2682800/-   which is 45.6% of the Agreement Value = 5894000/- to Shiv Krupa Enterprise
 I have taken loan from LIC Housing Finance of Rs 1504000/- for which I am paying monthly EMI of Rs 16329/-. I have paid interest of Rs 707512/- till date to LIC HFL
I am staying in a rented house and paying a monthly rental of  25000/- per month 
I did a continuous follow up with the builder 
After several follow-ups with the builder  he has revealed that  due to the (i) MOEF / Environmental  NOC/ clearance  and (ii) NOC from Forestry & Wild Life Angle including clearance from the standing committee of the National Board for Wild Life, the builder is  unable to get the sanction  and approval  for the  construction of the  Building containing the Premises 
Nothing actually moving on ground and this is happening for almost five years.
I am facing a financial burden of installments of housing loan, rent of present house along with lot of mental agony.
Please advise what should be done.
Asked 9 months ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
Time is an essence of contract: 
Strict stipulation of time and thereby making time as an essence of contract-what these builders are doing is committing to time on which they will complete the construction, in courts what they plead is that construction is complete NOC is needed, for buyer it’s the possession that is important they deliberately put the clause of time of completion of construction only, thereby they hide the date of possession, now innocent buyer think that they will get possession within 36 month period, but it is not possession it’s the construction, remember buyers cannot get possession until they get NOC certificate from authorities irrespective of construction. Now when the NOC is to be granted that god and builders know better, therefore making the consumers/buyers uncertain.

What remedies are available in Front of you?
1. You can ask for a refund. If the builder delays the completion of the construction beyond the stipulated time, you are entitled as a property buyer to seek a refund from the builder. Demand compensation from builders for construction delays
2.You can file a case in the consumer dispute redressal commission at all the three levels i.e the district , the state and the national commission depending on the value of the property or the amount of damage you have suffered. Any dispute over 20 lakhs can be directly filed before the State Commission and any dispute over 1 crore can be filed before the National Commission in New Delhi. Any dispute for a value lower than 20 lakhs has to be filed in the District Commission in your District. 
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
If the agreement stipulates delay in completion or in delivery of the flat within and beyond a date agreed to be delivered, then the builder must have agreed to pay some amount as compensation, if this has been done, go ahead and demand this from the builder ask him to start paying this amount to you till he completes the flat.
If he is unable to get the NOC from the relevant authorities then it is a forgone conclusion that the builder will never build and complete the project.
In this case then you must cancel the agreement, and ask the builder to refund back the entire amount paid by you which is 26,82,800/- along with interest @ 2% pm along with damages of Rs.5,00,000/- 
Do not bear the pain and suffering further, issue a legal notice in this regard and start the process quickly.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
50 Consultations
5.0 on 5.0
1.Refer to the agreement as regards representation of clearance of all necessary licenses are mentioned or not.
2. If yes then the builder has done material misrepresentation of fact resulting in unfair trade practice for which you can seek remedy in consumer forum for return of money and compensation.
3. If there was no sch false representation in the sale agreement then the burden is on you to have caused necessary inspection of the property and deeds as regards clearance of all necessary licenses. So you can not blame the builder and you have nothing to do now except to pray to God to get all clearances fast.
Devajyoti Barman
Advocate, Kolkata
5136 Answers
54 Consultations
4.9 on 5.0
1) if builder has failed to carry on construction and deliver vacant possession of flat you can cancel the agreement and seek refund of money paid to builder with interest as stipulated in the agreement 

2) if builder refuses to pay file complaint before consumer forum and seek refund of money paid with interest and also compensation for mental torture undergone by you 

Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
1) if you sign this supplementary agreement you wiill be waiving your rights under original agreement 

2) is the builder willing to refund full amount if you cancel original agreement ? 

3) if so take refund and cancel old agreement 

4) there is no guarantee that builder will complete new project on time 
Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
It is very difficult get over the  Environmental  NOC clearance  and  NOC from Forestry & Wild Life Angle including clearance from the standing committee of the National Board for Wild Life. If you put the signature in the above said new agreement you should bound to wait another 4 years .

Think which is suitable for you. You also understood that As per builder buyer agreement, flat was to be delivered by December 2012. So the limitation period for filing a case start from 2015 on wards. So better to take a decision as earlier as possible. (Three years from the date of agreement or full fulfillment of assurance date / handing over date of Flat)
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1. You have a two fold remedy against the builder. Either file a lawsuit for specific performance against the builder to seek delivery of possession with compensation for the delay, or you may cancel the agreement to seek refund of the sale consideration paid by you with compensation. The builder cannot forfeit any part of sale consideration unless he can prove that the agreement could not be honoured due to your fault. It is basic law that one cannot take advantage of his own wrong.

2. Once you execute the supplementary agreement it will supersede the original agreement and the rights conferred on you by the original agreement will cease to be enforceable to the extent they are in conflict with the supplementary agreement.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
Nothing actually moving on ground and this is happening for almost five years.
I am facing a financial burden of installments of housing loan, rent of present house along with lot of mental agony.
Please advise what should be done.
This seems to be an inordinate delay and totally unjustified especially at the juncture where you have paid almost 50% of the sale consideration very long ago. 
You have a choice of cancelling the sale agreement quoting the inordinate delay.  Though the time may not have been stipulated in the sale agreement for completion of construction, this unreasonable delay cannot be accepted or condoned. You send a letter or notice informing about the cancellation of sale agreement and demand refund with interest which occurred due to the fault of the builder. 
If the builder refuses to pay or refund the amount received, you may drag him to consumer forum seeking relief and remedy including compensation due to the mental agony thus caused. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
The supplementary agreement is nothing but depriving you the rights conferred on in the original agreement and upon signing this supplementary agreement you may have to waive the original rights, so think before igning any such agreement. The proposed retention of Rs. 5 lakhs as an amount towards earnest deposit is nothing but making a mockery of you once again. From the given facts it is clear that the builder shall never be able to get approval from the authorities concerned anytime in the future too hence the time sought now is just nothing to make you fool and swallow your hard  earned amount of Rs. 5 lakhs too.   You may become cautious of a condition specifically mentioned in the supplementary agreement mentioning that: 
"The Purchasers agree and confirm that the Promoters were infact unable to commence or construct the Premises due to statutory regulations. Hence the Promoters cannot be held liable and responsible for the same and that same would amount to events of force majeure.The Promoters have informed the Purchases and the Purchasers are aware that the Promoters presently estimate that the Premises shall be constructed and completed within the period of four(4) years from the date of execution hereof. The Purchasers and each of them do hereby irrevocably agree and undertake not to claim any damages penalty or the like from the Promoters on any account for any reason whatsoever. " 
The last line of the above condition traps you very cleverly that you cannot claim anything against the builder in the future as how you claim now. 
Hope you understand that how tactfully the builder has designed his present agreement in order to trap and cheat you without you  know that you are being cheated. 
Therefore you have to decide wisely whether to go ahead with the supplementary agreement or cancel the booking itself.  
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1) better ask builder to refund your money 


2) there is no guarantee builder will complete construction within stipulated period 

3) no clause that if builder fails to complete construction within stipulated period he would pay interest for period of delay 


4) consult a local lawyer 
Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
The subsequently amended  supplementary agreement seems to be okay if you are convinced that you can bear with the minimum loss in the future by reducing the earnest deposit from Rs. 5 lakhs to the one quoted now. 
The supplementary agreement now drafted also seems to have satisfied the requirement of clause of cancellation of booking.  However, why dont you consider removing the clause No.6 of the present modified agreement, this clause is unnecessarily causing confusion  hence in my pinion this clause may be removed, please analyse the same and have your own views about it before entering into this supplementary agreement.
For lawyers in Mumbai, you may have to look for one yourself. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
Get the agreement vetted by a lawyer. You are free to engage a local lawyer from this portal.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
1) under no circumstances would builder to pay penalty of Rs 50 lakhs as sought by you fir delay in handing over possession of flat 

2) ask builder to pay interest at 18 per cent pa fir delay in delivery of possession beyond due date mentioned  in agreement 

3) builder will not agree to provide similar flat in same vicinity as there may not be any such project launched by builder in same locality 
Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
Can you make necessary amendments in my draft supplementary agreement ?  i will pay you your charges to make a draft agreement -

You cannot put a general question this way to all lawyers of this forum who may attend your question. You may choose one of the expert lawyers of this forum and can seek his advise and service in private, the details of the lawyer so chosen can be had which will be available in their respective profiles.





however for your information I shall render my opinion to the new amendments you have proposed:


a) The condition of penalty of Rs. 50 lakhs is exorbitant, the builder/promoter will never agree and it will be highly illegal  to demand such an exorbitant amount as penalty wherein the flat cost itself is hardly 60 lakhs;


b)  The proposed condition by this clause will be against your own interest, you will stand a great loser if you put this condition as a clause. 

T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
If you want to engage a lawyer from this portal for vetting your agreement then obtain his contact details and engage him in accordance with the law and provisions contained in Advocates Act. Lawyers do not agree to be engaged in the manner that you have envisaged.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0

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