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Author Topic: Delay in possession of apartment  (Read 209 times)

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Offline realstate_victim

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Delay in possession of apartment
« on: September 23, 2016, 10:37:27 PM »
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  Iím 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 Iím 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 .  ( Iíve 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 ?

Best Regards,
Vikrant

Offline adv.amarnath

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Re: Delay in possession of apartment
« Reply #1 on: September 25, 2016, 07:58:21 AM »
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 .  ( Iíve heard that in this situation court  considers these type of Sale agreement as one sided agreement ? )
Ans: Yes, you have good case prima facie. Consumer court will be your best option after taking some legal formalities.

2)   Since i'm asking for refund , do i need to terminate the agreement first and then file consumer case ?
Ans: No
 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 )
Ans: No, you have ample of opportunity and you have further legal rights to claim from builder.

For further information or consultation in details you can contact me
Regards,

Amarnath Sanyal
Advocate
Email - adv.amarnath.sanyal@gmail.com
Mob - 09830303322

Offline Sankar Mukhopadhyay

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Re: Delay in possession of apartment
« Reply #2 on: September 25, 2016, 08:53:16 AM »
Hi,
It is a very good case for Consumer Court.
You can ask for Physical possession and compensation for loss of rent, mental agony and harassment.
Please do not cancel the agreement. If you cancel the agreement you shall loose your status of Consumer.
You may file your case before the State Commission at Bangalore or National Commission, New Delhi directly claiming Compensation of Rs.10 Lakh.
State Commission at bangalore having jurisdiction upto To Rs.99,00,999/- whereas the jurisdiction of National Commission starts from 1 crore and above.
Regards,
For further advise contact me
adbsankar61@gmail.com or call /whats app. me +919830341440
Regards
Advocate Sankar Mukhopadhyay

 

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