Builder is not constructing the flats and consumer cour has given judgment to refund the money
viswas bhatt
(Querist) 23 June 2012
This query is : Resolved
Dear sir,
The fact of my Case are:
1) I have booked a flat with Shreya Developwell Pvt Ltd in Oct-2007 in Ghaziabad in the society named Hindon Heights.
2) I have chosen the down payment option and deposited almost 95% of the flat value with him. For this i took loan from ING Vysya bank New Delhi.
3) The builder has not constructed the tower in which my flat is situated till date.
4) There are several cases going on against the builder. The dues are penidng from Ghaziabad Development authority,other Govt institutions.
5) The builder have mortgaged the land with banks on whihc flats are being constructed to take loan.
6) As on date the construction is fully stopped and no body is there on the site to contact.
Action i have taken:
1) I filed a case in Ghaziabad consumer court against the builder through advocate. Court has given its judgment on 13th Of April 2012 to refund the money with 18% interest. While court issued notice and advoicate also sent notices, there was no revert from Builder and the judgment was awarded exparty.
2) Now to execute court's judgement, i have again filed a case for execution of judgement and getting the refund.
My queries:
1) Since several types of dues would be pending on builder and as he is absconding how i will get the money even after court has given the judgement.
2) In case the builder does not give my money then how the amount will be recovered from him whereas several cases would be filed against him and decisions must have come accordingly. How my share of money would get refunded. Whether the land would be auctioned? who will get it auctioned?
3) if his pproperty(land ) is sold then whether i will get the money as per courts judgement in my favor or i will get some other remaining amount after getting all other dues/change settled out of the money.
4) I am really very confused as to how should i go about it and what action should i take so as to save my interest.
5) My another pain is that i am continuing paying bank Loan EMI without any hope of getting the money bank. Howe i should deal with the bank in such a situation. At least my EMIs get stopped and i case history do not get bad from bank side because i belive if i stop paying EMI,bank will make my case NPA and i will get booked under CIBIL. there after will not get loan from any bank. What should i do? How i can make the bank involve in all this?
6) My advocate has charged huge fees against consumer court decision in my favor and also for filing exection case. What is the leagal existence of consumer court's judgement. Is there any binding of this judgement on other victims. I mean whether my prioroty will be there over other victims?
I hope to get some convincing replies here and advise as to how i should go about it.
Regards,
Viswas Bhatt
ajay sethi
(Expert) 23 June 2012
by attachement of property of builder . if he dosent pay it can be sold off .
your lawyer will do the needful . have faith in him .
dont stop paying bank EMI . the interest wll keep on mounting . you will ruin your credit score .
other victims can on basi of facts of your case seek similar relief
viswas bhatt
(Querist) 23 June 2012
But if that property has been mortgaged with bank for taking loan then how that can be sold off?
Shonee Kapoor
(Expert) 23 June 2012
The land in his name can be sold off and the first right would be of the bank, the balance can be distributed to other stake holders.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
M V Gupta
(Expert) 24 June 2012
U are really in a bad situation. The builder apparently is not in a position to construct the building due to legal problems he himself is facing. Enforcement of Consumer Forum orders is a big bugbear. For attaching the property u have to first obtain a certificate of recovery from the Forum and approach the Collector to enforce it. The Forums do not have their own machinery to enforce their orders and collectors give a step-motherly treatment to the orders of the Forum. The other alternative open to you is to file prosecution under Section 27 of Consumer Protection Act under which the builder can be arrested and sent to jail. Very often builders do pay up the amount awarded in order to escape the punishment.
PARDEEP KUMAR
(Expert) 24 June 2012
Suitably advised by experts. As land is already mortgaged, so obviously, that mortgagor has the first right to get the land sold off and get his dues back, thereafter rights of other people like you come in foray. However, you can get order in your favour executed, for that you have to inform the court about other properties/assets of the builder, so that they can be attached and sold off, the procedure is long and as you said, you already have assistance of a Lawyer, have faith in him, he will do the rest.
viswas bhatt
(Querist) 06 October 2013
Dear Experts,
regarding the same property for whihc i have seeked your advise earlier, i want to ask following.
My case is going on in Consumer court. Consumer court gave the deceision in my favour to return the money with interest but builder was not turning up . I filed execution case on the courts order. But builder did not turn up. On this Court sent arrest warrant to the bulider. In the wake of this the builder took stay on the district court decesion and filed the appeal to Lucknow Consumer forum. I filed the reply as against the appeal and my hearing was due on some date 4 months back. On the first date he did not turn up and on second date he took further more time of two months. Now my date is in Oct-13.
My cause of worry is that i visited the builders construction site and found two notices there. One notice was that of HIgh court statiung that winding up proceedings has been started U/s 425 of companies act and official liquidator of high court has been appointed. All the assets has been taken under charge of high court.Second notice was by IDBI bank stating that auction of the property is supposed to be happened and this Notice was by Office of the Recovery officer.
Now what should i do in such circumsatnces? What would be the impact of the liquidationa and auction activity to me being a Flat owner. Moreover as my case is going on what should i do to secure my interest.?
Also My important query is that can i stop my Bank Loan EMI on this fact that the builder has been liquidated and now no contruction will be done by him and there will be no flat for which i have taken loan. How can i stop my EMIs , is there any sort of remedy for this?
Regards,
Viswas
PARDEEP KUMAR
(Expert) 07 October 2013
File a copy of Consumer Forum order, with detailed facts with the official liquidator appointed in the first instance.
M V Gupta
(Expert) 07 October 2013
As suggested by the expert above, u may file claim application before the Official Liquidator for the sum decreed by the Consumer Forum. Enclose the certified copy of the Forum's order. (I presume no stay order against the Dt forum's order has been issued). Similarly u should file ur claim before the IDBI Bank also in response to the notice published by the bank. As u are an unsecured creditor ur chance of getting the amount due to u will depend on the adequacy of the value for which the property is sold to meet firstly the Govt dues if any and then the claims of the secured creditors of the builders company.
viswas bhatt
(Querist) 07 October 2013
Thanks for your reply. Please let me know the way out by whihc i can stop my Bank loan EMI for time being and bound bank to recover the money once my case is settled. is there any case laws or instances in the histort where court has stopped the EMIs at least on moral grounds.
ajay sethi
(Expert) 07 October 2013
NO YOU CANNOT STOP PAYING BANK .
viswas bhatt
(Querist) 07 October 2013
Is there no remedy left if i go to human rights commission to intervene into it.
