• Lack of written terms in property purchase

Dear Sir,
I had booked a flat in a society having two tower A & B (A is operational 6 month back, my flat is in B tower) in Sep. 2009 in Ghaziabad U.P.  now builder has issued offer of possession/demand letter mentioning balance amount + penalty of delayed payment. As per agreement during booking, there is no clause of date of possession and penalty for delay in possession. But penalty for delay in payment is clearly mentioned as 2% per month (24% per year). There were only verbal commitment of March 2012 possession, but builder has given written date to some customers. Is my case very weak?
As per current status, work for the Lift in the block is going on and construction of common facility i.e. club is not yet started. Even Building has not got Main Electric Power Supply from Authority. 24 hrs DG Set is running.
I had applied for the home loan through the builder to IDBI, Allahabad bank and finally i got through PNB bank after 5 month from the date of agreement. I am also suspicious of loan sanction of "one time down payment plan" for under construction building where bank instantly disbursed 19 lacs out of total 21 lac sanctioned amount.
I will be highly obliged, kindly suggest me.
Asked 2 years ago in Property Law from Ghaziabad, Uttar Pradesh
If you have a booking form along with receipt for having paid the amount that is proof that you have entered into an agreement of purchase from the builder. 
Date of possession was 2012, builder has breached the date, he is liable to pay delay compensation even in the absence of a written agreement between the two. 
Issue a legal notice, give the builder 7 days to pay the delay compensation, failing to do so, file a complaint before the consumer forum. court will award delay compensation to you.
At the time of filing of the complaint, implead the bank as a necessary party to the proceedings, that would be sufficient.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
51 Consultations
5.0 on 5.0
1) terms of agreement are sacrosanct 

2) your agreement is silent about yeear of possession . verbal commitment has no value . 

3) hence builder is not liable to pay you any interest for delayed possession 

4) if there is any delay in your partin making payment you have to pay penalty as per agreement . 

5)if builder has given written date  for delivery of possession then builder is bound to pay interest for delay . i n such a case aggrieved flat owner can move consumer forum for payment of interest by builder plus compensation 

6) builder can offer possession of flat only after occupation certificate is issued by muncipal corporation
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. u cannot go beyond terms and conditions of agreement.

2. if u have made delayed payment then u will have to pay penalty charges to builder.

3.if there was no exact date and year stated in agreement about delivery of possession then builder is not liable to pay interest on delay of possession to you.

4. ur case is not weak.

5. for any deficiencies in services u can always file consumer complaint IN CF against builder.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
Dear Client,
The Byuilder can not levey the fine as he wished without the completion of the Building . You are advised to issue a legal notice to the Builder and file consumer case. The consumer form will direct the builder to deliver the property with in a fixed time and fine also stands illegal. The cost and compensation will be granted you.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
1. Your position may not be ideal legally but I feel that you can very well file a complaint case before te Consumer Court pointing out the unfair practice of not mentioning the date of possession and penalty for failure to give possession on time but to charge penalty for delayed payment,

2. In this case you are dependant on the builder since you have no accomodation for which you wanted a flat at all costs,

3. If you are to pay penalty, pay it under protest,

4. Write a letter to the builder recording the date when he had assured to handover possession,

5. After taking possession and getting the flat registered in your name, file a complaint case before the local District Consumer Dispute redressal Forum alleging deficiency in service and unfair business practice claiming rent for the delayed period  from the reasonable time period for giving you the possession at market rate, damage and cost,

6. I do think that you have very good ground to contest.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
If the builder has not given anything in written about the delivery of possession,then in that case he is not liable to pay any compensation. If u have delayed in paying the said amount then u r liable to the penalty which u should pay and in case of any other deficiencies u can freely move to the consumer forum against the builder.
Swithin Subhashish Lawrence
Advocate, Allahabad
47 Answers
3 Consultations
4.5 on 5.0
you can  file a complaint case before  Consumer Court pointing out the unfair  trade practice of not mentioning the date of possession and penalty for failure to give possession on time but to charge penalty for delayed payment.If you have to pay penalty, pay it under protest Send a letter to the builder mentioning the date when he had assured to handover possession and illegally demanding penalty. After taking possession and getting the flat registered in your name, file a complaint case before consumer forum for deficiency in service and unfair trade practice claiming rent for the delayed period  from the  promised date of delivery to actual possession at market rate, damage and cost etc.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
1. The terms of agreement are inviolable for either of the parties to the agreement. 

2. If no date of possession has been mentioned in the agreement then the possession should be delivered within a reasonable time. It is not permissible for the builder to delay till perpetuity the giving of possession by taking shelter under the absence of a clause regarding the definite date of possession in the agreement.

3. Has there been any delay on your part in making the payment to the builder? If no delay has been occasioned from your side the builder cannot levy the penalty. Refuse to pay the penalty if there has been no delay from your side in making the payment.

4. Issue a lawyer's notice to the builder seeking the possession of the flat. If he refuses to give the possession then move to consumer forum to get the possession along with compensation for delay.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
you can issue a legal notice for delayed possession and for possession of the flat and then file a complaint i the consumer court with damages and lodge a police complaint for the same.if nothing as penalty is mentioned in the agreement you need not pay it
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Reply to your questions.
1.Yes
2.Yes
3.Non completion of the common amenities and also delivery of flat in time as mentioned in other co purchasers
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
1.yes.

2.yes.

3.about quality of amenities in flat.

4. about absence of certain amenities in flat
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1) please clarify whether builder is occuping a dominant position in Ghaziabad ? if so you can challenge the one sided unfair agreement by lodging complaint against the builder before competition commission of india . CCi can direct Director general to investigate the complaint and if it is found that dominant position has been misused can issue cease and desisit order against the builder . 

2) In the case of DLF v/s Belaire Association CCI imposed heavy penalty on DLF of Rs 630 crores for unfair and discriminatory clauses in agreement with flat buyers . DLF was directed to modify un fair clauses in agreement within period of 3 months . 

3) if on other hand builder does enjoy dominant position in Ghazaibad you can move consumer forum against the builder for un fair trade practices . since agreement is silent on date of delivery of possession on part of builder and no penalty is imposed on builder for failure to deliver possession on time it amounts to unfair trade practice 

4)  since you have paid Rs 19 lakhs out of total cost of Rs 21 lakhs for flat pay the balance amount of flat . pay penalty under protest and then move CCI or consumer forum against builder
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. Who is your builder? Is he occupying a dominating postion in your area?  If yes, then the said one sided agreement can be challenged before the Competetion Commission of India who may direct the builder to modify the one sided clause of penalty against delayed payment when there is no time period fixed for giving possession and any penalty for not giving possession on time,

2. As I have already commented in my earlier post, you may not have ideal legal position but definitely have very good legal position as regards the unfairness of the agreement,

3. Deficiency in service in your case is that the builder has not given possession of the flat within a reasonable tme and what is the reasonable time in your case will be decided by the Court,

4. Apart from deficiency in service, certainly there is unfair business practice in your case since no period of handing over the constructed flat has been mentioned in the said one sided agreement.

5. You have been advised to take possession  by paying the penalty under protest before filing cases since otherwise the builder may refuse to give you possession till the cases are disposed of which will be detrimental to your interest.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
You can challenge the agreement as no penalty as said is written in the same.so builder cannot claim it. You can file a case for specific performance to give you possession immediately and to provide amentities
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0

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