• Cancellation of Flat

Hi 
Greetings for the day
I have purchased a flat in 2015 under subvention scheme which says Buyer do not need to pay any EMI till possession of the flat. I have paid 5L as a booking amount to builder and 16 L has been disbursed from bank to builder last year 
From last one year there is no construction progress and builder has managed to complete only 1 floor out of 26 floors  
After many meetings and protests I don't see any intention that builder will complete the project in next 10 Years. Moreover during the Booking I was told that said project is of 2012 .After couple of months when I started meeting other fellow buyers , I got to know this project was launched in 2009 .
After having a through discussion with my family I decided to cancell the flat .
I have sent a cancellation email to builder which they acknowledged as well plus 
I have also met concern person of bank and did inform them as well. They have issued a letter in which closure amount is mentioned ..Same letter was given to builder . I need a piece of advise since I have gone for  cancellation of flat.

1) What would be my legal options if Builder will not refund the amount within a month anf what would if he takes more than a year and what would  if he do not refund .

2) Since I booked a flat with No EMI till possession . which says builder has to pay the interest to bank under TRI Party Agreement. I have observed builder did not pay The interest amount of two months to bank . one for the month of April 2016 and another for the month of Oct 2016 .Plus the cheque was bounced twice two months back. What would be a legal option if builder will take a time to refund the amount and if he won't pay the interest to bank till the time the final loan amount is closed . 

3) What if builder will take a year to refund  then who will pay the interest to bank if builder refuses to pay . what would be my legal option.

4) I have a fellow buyer of same project who booked a flat in 2012 in same tower and his floor is next to my floor (8th floor ) . His possession date mentioned in builder - buyer - agreement is of 2015 and the possession date mentioned in my builder buyer agreement is of 2018 .  I want to know as how come builder give a different possession date to two different buyer of same tower .what would be my legal option.
Asked 1 month ago in Property Law from Greater Noida, Uttar Pradesh
Religion: Hindu
1. Intimation of cancellation of booking should be sent through a lawyer's notice, not an email. Be that as it may, you will be free to sue the builder in the consumer forum for refund of the money with interest if he does not refund on his own accord.

2. If the builder did not pay interest to the bank then it is for the bank to initiate recovery proceedings against him in the civil court. It does not curtail your right to recover your money from the builder.

3. The date of delivery of possession mentioned in the agreement is sacrosanct, failing which the builder has to deliver the possession in a reasonable time.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
if builder does not refund money you have to move consumer forum against builder and seek refund with interest ,claim litigation costs and compensation for mental torture undergone by you 


2)if builder fails to pay interest amount to bank you have to make payment and claim same from builder  

3)agreement with fellow buyer must have been entered earlier and builder was confident he would be able to deliver possession by 2015 hence mentioned said date 

4) in your case you can claim interest for delay in delivery of possession if builder fails to deliver possession by 2018 
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
1) wait for month for builder to refund your money 

2) if you file complaint before consumer forum notice woukd be issued to builder 

3) he will file detailed reply to your complaint 

4) court woukd direct both parties to file affidavit of evidence 

5) placed for arguments then orders 

6) it takes around 2 years for complaint to be disposed of 

5) builder can appeal against order before state commission and then national commission 
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
1. Your date of possession is 2018. in that case how can you cancel the booking on the ground that the builder did not complete the construction? This is your weak point in the whole matter. 

2. However, file a complaint case before the local District Consumer Dispute Redressal forum alleging  deficiency in service and unfair business practice claiming refund of the entire amount you have directly paid to them with interest, payment of the made by the Bank with interest, damage and cost.

3. in the petition you shall have to establish with a civil engineers report that the builder will not be able to build your flat within in the agreed period even if he starts construction to day. The fact that the builder has cheated you and has ill intention can be proved by the fact that he has assured completion of a flat in 2016 whereas in the same floor he has promised to complete your flat in the year 2018.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. Since you have cancelled the booking for his not raking up the construction and non payment of interest to the Bank, he should refund the amount within a reasonable period of time. Send him a letter asking him to refund you and also the Bank the required amount within next 15 days failing which you shall take legal recourses.

2. If the builder fails or refuses to refund the amount directed by the Consumer Forum, his properties will be attached for selling of to recover your dues and pay you. the Consumer court can also issue arrest warrant against the said builder if he does not execute the order.

3. If the builder gets adverse order from the consumer forum, he can challenge the order before the appellate State Consumer Commission and failing to get his favourable order, he can approach National Consumer Commission after which he can go to Supreme Court.  
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. You do not need to wait any longer. You can sue him tomorrow.

2. You should engage a lawyer for your case who will file it in the court and then the court will issue summons to the builder to file his reply. The court will proceed ex parte against the builder if he does not file his reply.

3. The order of consumer forum can be challenged in the state consumer forum, national consumer forum and then finally in the Supreme Court. 
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
Even if builder gives refund in 6 months accept it 

2) if you file complaint before consumer forum against builder it would take 2 years to be disposed of 
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
1. File a complaint case before the District Consumer Dispute Redressal Forum as suggested in my earlier post.

2. Claim back the entire amount you have paid since it is not possible for the builder to complete the project nd handover possession of your flat on the scheduled date/period as per the agreement.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1) What would be my legal options if Builder will not refund the amount within a month anf what would if he takes more than a year and what would  if he do not refund .

You can initiate legal process by first issuing a legal notice and then dragging him to either consumer forum or civil court. 



2. What would be a legal option if builder will take a time to refund the amount and if he won't pay the interest to bank till the time the final loan amount is closed . 

The builder will face problems for cheque bounce case if his cheque to bank was bounced.
For refunds you can initiate legal process for recovery. 







3) After consumer court , can builder challenge it to high court or shall I got to Supreme court . apology its just I am a middle class person and not earning much . I have spent all my earnings and I don't see any way forward . I have my ailing mother and 8 month old kid . you can even imagine the torture I am going through . From last 1 year , I have spent all my weekends either going at project site , either meeting with builder .
Please suggest me what is the way to get the money refunded from builder as early as possible



What he can do cannot be predicted.
You first initiate legal process through consumer court, dont worry about his further action at this stage itself.
First prosecute him properly and manage to get a verdict agaisnt him, let him decide what to do next. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
1) Total Refund --- As per BBA which is 10% of total cost of Flat 
2) When would I expect a cheque -  Minimum 4 - 6 Months 
3) who will bear the interest to Bank in case builder takes time to refund .  -- No response from builder. 
All these things are written and I have sent a reply stating 4 - 6 months are not acceptable and I need my refund within 30 - 40 days . 
What would be action

What would be action  by builder is again unpredictable.
You can proceed legally against him if he fails to comply with your demand.
Be sure that you send a legal notice through your lawyer instead of corresponding with the builder in the cheapest mode of communication i.e., through email. 
Always try to create and secure records and documentary evidences which will b useful for you to fight against such odds. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0

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