• Delay in possession of apartment

Hi , I had booked a flat  with one of the prestigious builder of Bangalore under Pre EMI scheme (i.e 20 + 80 % scheme ) in 2013  .  Total flat cost was 90 lac (including registration ) .

Per scheme, I had paid complete 100% (leaving registration cost) to builder in May 2013 itself ,  20 % from my own pocket  (around 19 Lac) and rest by taking Bank loan (of around 66 lac ) ,  builder offered (via one offer letter) to pay me the bank interest (pre emi) on the 80% amount (i.e on 66 lac) till April 2015 and also did a sale agreement which mentioned possession date also as April 2015.

Builder paid the interest on 80% till Apil 2015 ,but could not handover the possession on April 2015 , after many follow-up , builder agreed to extend the interest (pre emi) payout from April 2015  to Dec 2015 .   
Again ,he paid the interest  till Dec 2015 , but could not handover the possession even in 2016 and now not agreeing to extend the  pre emi .  Instead builder has sent us an  email (that too after many follow-ups) mentioning the new possession date as September  2018 , giving us the delay reason as  unforeseen circumstances which were beyond builders control   

All emails & personal follow-up with builders to extend the pre emi  have gone in vain . 
And on asking for refund, builder is asking me to sign me a cancellation form and saying that refund will be (only principal) given only if they will be able to sale my flat to some other buyer , which i believe  not possible as their market reputation has got deteriorated .  

Now since JAN 2016  I’m paying both interest + rent and leaving in a very tight financial and uncertainty situation .

Sale agreement has penalty clause for delay in possession , per that builder would pay only 3 Rs per sqft penalty  /per month and that too if the delay is not because of any unforeseen circumstance . 

Now I’m thinking to taking legal action against the builder and having following queries :- 

1)   Do I hold any chance to stand in court against the builder as I signed the sale agreement which clearly mentions the delay clause .  ( I’ve heard that in this situation court  considers these type of Sale agreement as one sided agreement ? ) 

2)   Since i'm asking for refund , do i need to terminate the agreement first and then file consumer case ? Can i not just file a case requesting court to direct the builder to refund me the money (principal + interest ) and simultaneously terminate the agreement . (as it is a service default from the builder side where i honored all commitment from my side )

Because terminating the agreement before actually getting the money back is very  scary as if i loose the case in court it will give builder  freehand to deny to handover apartment to me and also to refund the money on this will .  

Please advise
Asked 3 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu
Hi, It is better  first  terminate the agreement and  then file a complaint in the consumer forum for  refund of the amount and so also for the damages for the delay in possession of the property.

2. First you have to issue legal notice and then proceed further.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1)court considers these agreements as one sided . you should move court and seek orders to direct builder to pay interest  at 18 per cent  for delay in delivery of possession . 

2)also seek orders to deliver flat within  6 months or so 

3) dont terminate the agreement 

4) if you want refund then you have to terminate the agreement and seek refund of money paid with interest 
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
Hi, Filling a complaint in the consumer forum is an alternative relief  you can also file suit/ file petition before the arbitrator to recover  you amount. You will get the amount.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Yes, you can surely consider filing a case in consumer forum seeking compensation and damages arising out of this delay.
2. If you want refund then you have to send notice cancelling the agreement and seeking refund within a time. if they refuse then file case in consumer forum.

Even if you lose the case you will get back money. So rest assured.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) if you dont want to take any chance just seek interest at 18 per cent for delay in delivery of flat by the builder 
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
1. The date of delivery of possession incorporated in the agreement is sacrosanct. You can sue him for the delivery of possession or refund of money with compensation in the consumer forum if the possession is not delivered within the promised time. 

2. The delay clause cannot give the builder the latitude to delay the delivery of possession indefinitely. 

3. Unless you issue him a legal notice for cancellation of the agreement you cannot seek refund. 
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
1)   Do I hold any chance to stand in court against the builder as I signed the sale agreement which clearly mentions the delay clause .  ( I’ve heard that in this situation court  considers these type of Sale agreement as one sided agreement ? ) 

The builder is bound to pay the interest as per the conditions of the agreement and cannot refuse to pay quoting som flimsy reason. you can drag him to the consumer forum seeking the relief of interest and other compensations due to the mental agony caused due to this. 




 

2)   Since i'm asking for refund , do i need to terminate the agreement first and then file consumer case ? Can i not just file a case requesting court to direct the builder to refund me the money (principal + interest ) and simultaneously terminate the agreement . (as it is a service default from the builder side where i honored all commitment from my side )

You can make your pleadings before court on the basis of your proposal itself. 
You can very well seek alternate solution before court to cancel the sale agreement and direct the builder to return the entire amount with interest from the date of first payment. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
What if i terminate the agreement from my side and i loose the case in the consumer court ? Then i loss the chance to get the apartment and also builder gets the liberty to refund the money at his will and that too without interest ?

You should approach the consumer forum wit the first relief i.e., interest on delayed payments and to handover possession immediately failing which the alternate solution shall be cancellation of the booking/sale agreement and refund of the entire booking amount with interest at one stroke. 
Discuss with your advocate properly before initiating any legal case on this. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0

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