• Refund/ earnest money/ cancellation - please reply briefly

Hi, i asked in this forum last year and moved to consumer court in dec/2015.please check both links: 
query: https://www.kaanoon.com/36448/booked-in-application-form-tower-and-floor-changed 

application form of builder: http://www.realityinfra.com/wave24/images/application.pdf

Opposite party Lawyer (OPL) : saying that building plan was tentative (clause 7 at page 7) and they can change anytime, they also saying they can forfeit the amount because i stopped payment. so he can deduct 20% by clause 11 and 16 as earnest money and its a construction linked plan i have opted. so they can demand money at any time even after two years or so. presented clause that
 supreme court also said that earnest money can be deducted.

queries: 
1. i gave 2 installments on time at the beginning in 2013 whenever builder asked me.but after that for two years builder did nothing then suddenly in 2015 made BBA and changed my flat tower everything. they made excuses when i visited office or called them in that 2 year period time and did nothing. so still i am bound to this form anyhow?

2. Hearing/ argument is done (took 1 year) and judgement will be on 1 december so can i request judge to represent myself again on 1st december before the judgement? 

3. in reply i presented clause F and I in the form. (mentioned at the beginning). so am i still bound to these clause because i am not wrong i made all payments on time its builder who did nothing for two years  and was wrong as per clause F and I. and now showing supreme court earnest money forfeit amount clauses and application form tentative plans.

4. Can i give refrences of other judgementa in consumer court like amrapali/ unitech builds judgement given by supreme court? 

please reply and give references clauses as well of laws of india. that will be very helpful. Thanks alot
Asked 17 days ago in Property Law from Ghaziabad, Uttar Pradesh
Religion: Hindu
1. Well,there are decisions of supreme court that even if there is delay in constructions the consumer can not stop making payment of consideration money. At least this decision can go agaisnt you unless you have equity against the builder.
2. Once the court has posted the matter for delivery of judgment then it is not going to hear you under any circumstances at all.
3. Since the forum is going to pass the decision wait for sometime. If it goes against you the same can be challenged in higher forum.
4. You can cite these decisions if those are in your support. I have not gone into it and hence I can not advise on its applicability in your case.
Devajyoti Barman
Advocate, Kolkata
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1) OP lawyer is wrong . builder cannot change allotment of flat to another floor and another tower with your consent 

2) payment was made to builder on basis of sanctioned plans 

3) builder cannot deduct 20 %of payment made by you . had he not changed allotment of flat to another tower and floor builder could have made out a case . 

4) under  the circumstances purchaser can cancel the booking made and seek refund of payment made by him as he has not signed fresh BBA 

5) you cannot tender further arguments as complaint is posted only for  judgments 

6) you have good case on merits . no need to worry 



Ajay Sethi
Advocate, Mumbai
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1224 Consultations
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you have signed provisional apartment allotment agreement wherein flat on particular flor was allotted in X tower 

2) you have not made further payment as they unilaterally changed the allotment . hence you are entitled to cancel the agreement and see refund 

3) judgment of SC depends upon facts of the case . yo have to distinguish the facts of case . 

4) in your case forfeiture of earnest money would not arise as unilateral change of allotment was done by builder 
Ajay Sethi
Advocate, Mumbai
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1224 Consultations
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1.  What builder has done seems to be invalid as per your contentions, since you have made an argument in this regard already, you may wait for the judgment.

2.  Since arguments have been heard by court, you may be present on the date of judgment to hear the the same. 

3.  Allow the court to take decision on this after which if you are aggrieved then you prefer an appeal.

4.  You should have submitted the judgments at the time of arguments.

 


4.  
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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so am i still bound to this so called earnest money forfeit by supreme court? that means builder is allowed to ask me even after 2 years for payment and it does not matter that he never informed me anything in those 2 years? its clearly visible that builder is wrong but i made all payments whenever asked on time.   
They always mention about application form etc. and court wants facts. whats should i suppose to do?
 
You can also mention the clause which is in your favor.
The supreme court judgment is a blanket cover they are trying to take protection under it. From the agreement conditions it is clear that there is a fault on the side ot the builder, hence you may wait for the judgment by the court. 







i am really frustated now by this so called supreme court earnest money law although i am not wrong. they have my good amount they got interest on that n they stopped working then even supreme court says amount can be forfeit even if builder is delaying in signing BBA and not working. last question was left already spent alot in this case. 

First you go through the supreme court judgment properly, see whether the clauses mentioned in it are applicable to your case. 
They cannot keep telling about supreme court judgment for their faults too.
You can interpret the law properly and may argue accordingly. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0

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