Possession delay - builder trying to arm twist out of obligation
I am a first time buyer and booked a property in Greater Noida in May 2011 which was supposed to be delivered by 30 months with a grace period of 4 months. They adjusted the penalty with the final payment in June 2015 when they sent the offer of possession letter. I paid the balance on time but although they stated that registration and hand over will be done by 15th August 2015 there was no progress.
After chasing up finally in November they gave their lawyers details asking us to contact him and submit check for stamp duty payment which we did. The cheque expired after 3 months as builder did not proceed with registration process. Again after chasing up for two months finally we were asked to resubmit stamp duty cheque.in May this year (Note this is the first time we put our grievance in writing over email). Due to signature mismatch we had to submit the cheque a third time in June which was encashed in July. We finally got a date to sign registration paper and builder agreements for possession on 10th September.
On the day, we were told that the stamp duty has gone up by 2% and we need to pay additional amount for registration. We particularly wanted to read the builder agreement papers and were asked to read the document at the lawyers office in short time duration and sign as they cannot provide us a copy to read in greater detail before signing. From whatever we could go through, we identified two declarations they want us to sign.
1. That there is no due from either party (although they have delayed the process by over a year since last compensation)
2. That we have inspected the property and are satisfied that it is as per contract. We inspected in the same day and the property is incomplete and will take at least couple of months more till it is ready. Note that on our allotment letter it specifically says that once we take possession we do not have right to dispute any item of work in the house.
I am not sure what else is they have added in the builder agreement file, but we refused to sign the builder documents basis of the two declarations. They did not let us proceed with registration paper signing either. We are yet to discuss with the builder and need advise before we proceed.
1. Can they force me to sign the declarations to proceed with registration and possession of property? I do feel that they should pay for the additional year loss because of delay from their end considering I am continuously living on rent for all these years.
2. Should they not provide occupancy and completion certificate before I give an undertaking that the house is complete? At least should the house not be ready so I can inspect and give my consent?
3. The stamp duty has gone up due to their negligence and I have to pay a hefty amount. Can this be contested with builder? Should I at least pay off the additional registration fee to avoid monthly penalty from government even if they do not let me sign the papers?
4. Is it a normal practice to force buyers to not read and sign? I will ask for a copy from them as I am not sure what else the builder has included in their agreement .
5. I have also been asked to pay Rs 21000 court fee in cash, don't think it comes with a receipt so it is probably a bribe. They clearly stated they wont accept cheque
Aware this is a lengthy note with several questions, much appreciate your support and guidance.
Regards and Thanks.
Asked in Property Law from Greater Noida, Uttar Pradesh
1) generally all builder agreements are one sided
2) if you are aggrieved by the agreement you shoukd refuse to sign the agreement and move consumer forum against builder and seek intetest for delay in delivery of possession
3) seek orders to direct builder to complete construction within stipulated period , obtain OC and deliver possession of flat to you
4) don't contest additional stamp duty payable
5) builders generally don't furnish copy of agreements in advance as they refuse to make any changes in the draft agreement
1. You can proceed with the registration under protest. If you agree to register the property without protest you will forfeit your legal right to sue the builder.
2. Without OC the building cannot be occupied as OC certifies that the construction has been made according to the approved plan.
3. The buyers should be more demanding when dealing with builders. Tell the builder to give you a copy of the agreement 2 days in advance so that you may read it and get it vetted by your lawyer.
4. Stamp duty can be remitted through cheque.
5. Engage a lawyer immediately to have the agreement vetted by him lest you are taken for a ride.
1. You can protest their decision to force you to accept the lopsided agreement and conditions.
If you have no alternative than to take possession, you can point out the incomplete work done by them and make of list of work that are to be completed and get an acknowledgment for that from the builder before taking possession or do not take possession, you may issue a legal notice venting out his grievance along with your demand for delay in handing over the possession or completion of construction and also you may demand the OC/CC before handing over possession of the flat.
2. They are to provide the OC or CC and also the builder has to make the flat ready on all aspects for the inhabitants, you have all rights to inspect before moving into the flat.
3. Decide based on the circumstances.
4. You can very well demand a copy of the agreement, it is your right. Let the builder deny you the supply of the copy of agreement and the conditions therein, you can issue legal notice or include in the notice this also as a demand from your side.
5. You can ask the reason for court fee, because where is the court involved in the registration. Please clarify that it may be registration charges, which can be paid by cash.
Thank you all for your valuable inputs. I will be writing to the builder as advised demanding the sale agreement for review. I had a few follow up questions before I do so and I appreciate your inputs on these please.
1. The offer of possession letter says I need to sign fit out agreement, maintenance agreement, letter of possession and power backup/ electricity agreement along with builder buyer agreement and registration papers. Allotment letter says I need to sign necessary indemnities, undertakings and other documents only during execution of sub lease deed which will be upon full completion of construction.
In that case should I refuse signing these documents and demand that I only sign sale agreement or are some of the documents mentioned above standard part of the sale agreement? I am definitely not going to sign the fit out, letter of possession till house is complete and I have OC. I am concerned if I sign maintenance agreement and electricity etc those will have clause and come into effect and be charged immediately.
2. How strong is an allotment letter compared to sale agreement or having possession in court of law? I have been hearing mixed opinion and it seems less favorable if I end up contesting against builder with just an allotment letter. Is that true and in that case should I accept any of their demand to get at least the sale agreement registered? Like I mentioned before, I have made full payment and have waited several years with this piece of paper so hoping its worth contesting with against contract breaches and builder deficiencies.
3. Pardon my naivety but could you guide on what needs to be done to sign under protest? Do I sign each document and undertaking stating ‘Under Protest’ along with my signature or can I just send a letter stating that I am signing such and such document under protest? I am not sure if the builder will accept any document if I add the line in which case I am not sure what else can be done.
4. I found out that the builder is a member of CREDAI. Is it worthwhile to escalate the dispute at the initial stage to this body, requesting them to mediate if builder refuses to entertain my challenges?
Thank you again for your consultation and guidance
Asked 7 months ago
1) builder can offer possession only after issue of OC
2) don't sign fit out agreement letter of possession agreement with builder
3) no harm in signing power backup agreement a d electricity agreement with the builder
4) you can at request builder register sale deed . In your favour
5) you can sign agreement under protest . In covering letter mention under protest
6) don't escalate dispute to apex body
1. Whether you sing the maintenance agreement now or later, the arrogant builder will be charging you the maintenance charges from the date of signing the sale agreement upon which any oral or verbal arguments may not fetch you any fruit and you may end up losing your time and money on litigations on such issues at a later stage, so think wisely.
2. The builders cannot be made alright despite plenty of such cases against them. You may better sign the sale agreement deed without losing the hold on the property but under protest/objection.
3. Yes, you can sign under protest in all those documents, the builder has to accept it or else ask him to provide the full and proper facilities as per the agreement.
4. First exhaust the remedies from the builder directly and then decide about escalating the matter with a forum seeking their intervention.