• Delayed possession and refund query

Three years back, April 2013, I booked a flat with a renowned builder on VIP Road Zirakpur Punjab. 

As per the agreement, the possession of the flat was committed to be transferred to me in 18 months i.e. by Oct. 2014. Till date, I’ve paid 85% of the price of the flat which is approximate Rs. 50 lakhs, including basic price, service tax and the TDS, but the possession has still not been awarded to me. I also have a home loan for the same flat with HDFC. And I am paying the EMI’s for that till date.

In the agreement, there was a compensation clause which states that the developer is liable to pay Rs 5/per sq. ft per month for the period of delaying in offering the possession, and will be adjusted at the time of Notice of possession. These holding charges are calculated to Rs. 9000 per month. 

I have approached the builder number of times and every time they gave an assurance that the possession would be transferred in 6-8 months. Last week, they said possession would not be awarded before an year and even this time period I certainly doubt. 

I’ve asked for my full money refund, but they say that I can take possession in another tower which is ready for possession. But I don’t want that.
All my payments were on time, so builder should not have any excuse on delayed payments too.

There is also one “Default” clause in the agreement that state – “If for any reason the Developer is not at all in a position to offer the Apartment, as agreed herein, the Developer shall offer the Purchaser(s) an alternative property or refund the amount in full with interest @ 10% per annum without any further liability to pay damages or any other compensation”

Please guide me what options do I have to recover my money?
Asked 7 months ago in Property Law from Zirakpur, Punjab
Religion: Hindu
1) under agreement builder was liable to deliver possession of flat by Oct 2014 

2) if builder has failed to complete construction on time you are at Liberty to cancel booking and seek refund with interest 

3) you cannot be forced to take flat in another complex 

4) file complaint before consumer forum and seek refund with interest , compensation for mental totrure and litigation costs 
Ajay Sethi
Advocate, Mumbai
23337 Answers
1220 Consultations
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A. You are entitled to get compensation from the builder as per the terms of the contract i.e, Rs.5/- till the delivery of possession. However, if you are getting huge loss from the builder by virtue of paying rent under the Rent or Lease Agreement that could be recovered the same from the builder by approaching the Court.

B. You can issue a legal notice to the builder to refund the entire amount with agreed interest as per the terms of the agreement or the builder is liable to refund the entire amount with interest which is fixed for your payment for the delay in payment. Moreover, you can claim damages for mental agony.

C. Thereafter, you can approach the Consumer Forum under the deficiency in the service or insist for complete construction to hand over the possession. Therefore, better visit the spot or site and inspect the same and get conclusion from the workers and decide as to what action is suitable for this? Hence, you are free to approch the court and you will defienetly win the case.

D. As per the new Real Estate Act,2016 the builder cannot be escaped from their liablity and the customer can get the compensation or damages or appropriate relief by approaching Real Estate Regualtory Authority. 
B.T. Ravi
Advocate, Bangalore
736 Answers
30 Consultations
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First of all issue a legal notice through counsel and if within notice period the developer is not return your money along with 10% interest then you may file a civil suit fir recovery or file a complaint before consumer forum and claim your money along with interest.

Feel free to call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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There is also one “Default” clause in the agreement that state – “If for any reason the Developer is not at all in a position to offer the Apartment, as agreed herein, the Developer shall offer the Purchaser(s) an alternative property or refund the amount in full with interest @ 10% per annum without any further liability to pay damages or any other compensation”

Please guide me what options do I have to recover my money?

The agreement condition what you mentioned above is clear about what action can be taken now on this issue.
You may first issue a legal notice stating that you are terminating the agreement and also cancelling the booking for the reasons stated therein.
If the builder is not responding or complying with the demand made, you may drag him to the consumer forum seeking refund as well as compensation for the mental harassment and for the damages you suffered so long in the name of flat purchase.
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
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First you have to check the working progress in the flat.  Normally builder cannot escape from their liability if you approach the consumer forum. As per the default clause the developer had agreed to alternative property in other tower but you are not like to occupy the same. I assume that all this have done in a verbal conversation. The present situation you have every right to rescind the agreement and claim damages and return of advance amount. 

Here better option is to claim the delayed charges per month because you want the particular flat and already paid 85% of the amount. If you declined to purchase the flat then first you have to find out the builder is in good condition for refund the total amount to you. For your sake issue a legal notice demanding the delayed charges, damages and other compensations.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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The developer has in consonance with the agreement offered you an alternate property, but you have the right to reject the offer. You are not bound to accept the offer. If you decide to reject his offer then a legal notice for termination of agreement may be issued to him to demand the refund of money with compensation stipulated in the agreement itself. The builders do not honour such just demands, in which event you can file a suit for recovery of money against him in the court. This is the only option that you have,
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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under section 37 of the contract act builder is bound to perform the contract otherwise you can file a suit for specific prtformance of the contract. 

builder cannot force you  to take flat in another block. you can cancelled this agreement and file a case before the consumer forum for compensation and cancellation of the contract. 
Shivendra Pratap Singh
Advocate, Lucknow
2767 Answers
41 Consultations
4.9 on 5.0

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