• Delayed possession

I have a flat booked with Amrapali in Noida. Booked in 2010 July, the agreement mentions the delivery commitment as " 36 months +- 6 months, from the date of start of excavation / signing of agreement". I does not mention anything about whichever is earlier or later. The agreement was signed in September 2010 and excavation work for my tower started in Jan 2012. I have not been given the possession yet, since 2013 December I have been getting assurance of possession in next 3 to 4 months. Amrapali has given possession to many people in the society but few towers are not yet delivered. People are staying in other towers since 2014 mid. I was later in 2014 informed that my tower is in phase 2 delivery (but there is no such phase 2 mentioned in agreement). Actually my towers is almost ready for the last 2 years but there is no progress in it since the last 2 years (approx). And my flat has been made ready completely with tiles and interior work done, and is being used by Amrapali for their office purpose (the facility management office for society). I have raised my objection to my flat being used by others and have requested that if my flat is ready I should be given possession. I am as of now paying rent and also paying EMI. Builder is also not paying any late payment charges as of now, and saying it would be settled at the time of possession.
Have below queries in this regards:
1. Is my case legally strong enough / genuine enough for claiming the late payment charges from builder. And is the late payment charge settled at the time of possession only, no provision of getting the late charges as and when the payment is delayed?
2. Builder has also charged me on some late payments, I tried to ask for the exact amount of late payment so that I can settle it, but they said it would be settled at the time of possession, I believe they are trying to negotiate during possession for my late payment amount to their project delay. What could / should be my step on this, to avoid falling in any of builders trap.
3. Can I claim additional rent / amount under any other head from builder for using my flat for their office purpose.
4. I have been coordinating with an employee of builder over emails for all these follow-ups, I do not have any of their managements correspondence, is it required to make the case strong.
5. Can I approach the court, if yes, which court, and what do I need to prepare for.
Asked 8 months ago in Property Law from Noida, Uttar Pradesh
Religion: Hindu
1) builder is liable to pay late payment charges  from march 2014 as agreement signed in September 2010 . 

2) if you have made late payments and builder has charged you interest you can recover the same interest rate from builder 

3) you can also seek compensation from builder for mental torture undergone by you and rentals paid by you for the period of delay 

4) you have to file complaint against builder before consumer forum for deficiency in service and seek aforesaid reliefs 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
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You can approach the District Consumer Disputes Redressal Forum or the State Consumer Disputes Redressal Forum, and seek delay compensation. 
In your case, the builder is liable to pay compensation from September 2010 till date of handing over possession.
If he has completed the construction of your flat and is using this as his project or site office, take an injunction or stay order from the court against him from using this flat as his office. Demand that possession be given immediately to you.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
51 Consultations
5.0 on 5.0
1. You are legally free to recover the late payment charges from the builder which he should give either when the possession is delivered or when the agreement is cancelled.

2. You can either wait for the delivery of possession to see what settlement he offers, or cancel the agreement to seek the refund of money already paid.

3. You can claim mesne profits for unauthorized use of the flat.

4. An employee is deemed to be acting for and on behalf of his master.

5. You can move the civil court or consumer forum depending on the relief that you wish to claim.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

1. Is my case legally strong enough / genuine enough for claiming the late payment charges from builder. And is the late payment charge settled at the time of possession only, no provision of getting the late charges as and when the payment is delayed?

Opinion: your case is very strong and first of all issue a legal notice to builder through your counsel and if they are not ready to settled the matter amicably within the notice period then you may file a complaint before consumer court against the builder and claim compensation for delay in possession and not follow the agreement.

2. Builder has also charged me on some late payments, I tried to ask for the exact amount of late payment so that I can settle it, but they said it would be settled at the time of possession, I believe they are trying to negotiate during possession for my late payment amount to their project delay. What could / should be my step on this, to avoid falling in any of builders trap.
Opinion: As mentioned above.

3. Can I claim additional rent / amount under any other head from builder for using my flat for their office purpose.
Opinion: yes you can claim the rent or EMI from them for not given possession to you within time period as per agreement.

4. I have been coordinating with an employee of builder over emails for all these follow-ups, I do not have any of their managements correspondence, is it required to make the case strong.
Opinion: issue Legal notice is the best option for you.

5. Can I approach the court, if yes, which court, and what do I need to prepare for.
Opinion: Consumer court, civil court of area where the head office, branch office of the builders are situated or as per the terms and conditions of the agreement if specifically mention regarding the jurisdiction of court.

Feel free to Call
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
1. Is my case legally strong enough / genuine enough for claiming the late payment charges from builder. And is the late payment charge settled at the time of possession only, no provision of getting the late charges as and when the payment is delayed?

The late payment or penal payment on the delay in construction or possession shall be ascertained on the date of handing over possession.  If you are instructed to make final payment for handing over possession, you can make it under protest. 






2. Builder has also charged me on some late payments, I tried to ask for the exact amount of late payment so that I can settle it, but they said it would be settled at the time of possession, I believe they are trying to negotiate during possession for my late payment amount to their project delay. What could / should be my step on this, to avoid falling in any of builders trap.

You can maintain a record of all late payments made by yo and also secure the evidences of the delay by the builder and should demand the penal interest payment for the delay in handing over possession. If you desire to get the late payment by the builder to be paid to you immediately you can send a notice to him by registered post demanding the same. 






3. Can I claim additional rent / amount under any other head from builder for using my flat for their office purpose.

Until it has not been handed over to you, you cannot claim ownership to that flat being occupied by the builder, however you can send a notice to him mentioning his illegal occupancy of the flat booked by you and he is liable  to pay rent and for the damages and all such consequences which may be brought to light.  This will open his eyes about the illegal occupancy of the flat allotted to you. 







4. I have been coordinating with an employee of builder over emails for all these follow-ups, I do not have any of their managements correspondence, is it required to make the case strong.

You have to create all the records in writing  and sending the communications to the top management of the builder firm by registered post with AD card, this will help you to secure evidence against the builder at every stage in order to establish the litigation against him, if there arises one in the future. 





5. Can I approach the court, if yes, which court, and what do I need to prepare for.
Asked 22 hours ago in Property Law from Noida, Uttar Pradesh
  Consumer court within your jurisdictions.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
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file a case before consumer forum for possession and compensation for inordinate delay.

if indemnity clause is not mentioned in agreement it shall be construed as parties were agreed for indemnity if loss is occurred by party due to fault of other (section 72 contract act)

you can claim interest upon the amount paid for the period of delay. 

Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0

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