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 ?