We understand your concerns regarding the unresolved issues with the builder and are committed to assisting you in seeking a resolution. In accordance with legal guidelines and procedures, we recommend the following steps to assert your rights and address the situation effectively:
- Compose a Formal Legal Notice: Begin by drafting a well-structured legal notice addressed to the builder. In the notice, clearly outline the issues you have faced, such as the delay in possession and any other relevant concerns. State your expectations for a satisfactory resolution within a stipulated time frame. This legal notice serves as an official communication, urging the builder to address the matter promptly.
- Await Builder's Response: Upon sending the legal notice, allow the builder reasonable time to respond. If the builder responds and offers appropriate compensation or resolves the issue to your satisfaction, the dispute can be resolved amicably.
- Don't Escalate to Civil or Consumer Court: Civil action is not recommended as vide sec 79 there is a bar of Jurisdiction and the Civil Court cannot entertain a matter where the Tribunal has the jurisdiction.
- Section 18 of RERA: You also have the option to file a complaint under Section 18 of the Real Estate (Regulation and Development) Act (RERA). This section pertains to disputes between the allottee and the promoter. By filing a complaint under this section, you can seek relief for the violations or infringements of the Act's provisions.
- Section 31 of RERA: Additionally, consumers have the right to file a complaint under Section 31 of RERA. This section allows any aggrieved person, including homebuyers and the Association of Allottees, to file a complaint with the regulatory authority for violations of the Act. The complaint should adhere to the format specified by the laws of the respective state.
It is important to note that your complaint should pertain to a project registered under RERA and be filed within the prescribed time limit. This ensures that your grievance is valid and can be addressed under the provisions of the Act.
We understand your concerns regarding the unresolved issues with the builder and are committed to assisting you in seeking a resolution. In accordance with legal guidelines and procedures, we recommend the following steps to assert your rights and address the situation effectively:
- Compose a Formal Legal Notice: Begin by drafting a well-structured legal notice addressed to the builder. In the notice, clearly outline the issues you have faced, such as the delay in possession and any other relevant concerns. State your expectations for a satisfactory resolution within a stipulated time frame. This legal notice serves as an official communication, urging the builder to address the matter promptly.
- Await Builder's Response: Upon sending the legal notice, allow the builder reasonable time to respond. If the builder responds and offers appropriate compensation or resolves the issue to your satisfaction, the dispute can be resolved amicably.
- Availing the remedy under RERA. Since RERA came into being in 2016, real estate projects have to be essentially registered with Real Estate Regulatory Authority under section 3 of the Real Estate (Regulation and Development) Act, 2016 i.e RERA until and unless it is the specific case under section 3(2) of RERA. Presuming that in all likelihoods, your project might have been registered under RERA,the following enabling provisions are there in favor of allottees/buyers under RERA:-
- Sec 18 of RERA talks about the return of amount and compensation, wherein the promoter ( i.e Builder or Developer) will have to return the amount received by him in respect of the apartment, plot, building as the case may be, with interest including compensation as provided under the act, if the promoter fails to complete or unable to give possession of an apartment, plot or building in accordance with the terms of agreement for sale or as the case may be, duly completed by the date specified therein.
- Even in the case of discontinuation of his business or suspension of registration, the promoter is required to return the amount received by him with interest by virtue of section 18 of RERA
- In case the allottee does not wish to withdraw from the project, he/she is allottee is entitled to be paid interest for every month of delay till handing or of possession by the promoter (i.e. Builder or Developer).
- Vide Sec 18(3) of RERA, an allottee is entitled to compensation, and the liability rests upon the promoter i. e where the promoter( i.e Builder or Developer) fails to discharge any other obligations imposed upon him under this act or the rules and regulations or in accordance with terms and conditions of the agreement for sale.
- Sec 19(4) of RERA, reiterates what has been covered under section 18 of RERAi.e. refund of the amount paid along with interest and compensation.
- By virtue of Sec 89 of RERA, the act has got an overriding effectmentions that the provisions of the act shall have effect, notwithstanding anything inconsistent therein contained in any other law for the time being in force
- In light of the above, the following relief, you should be bidding for/asking for under RERA:-
- Return the amount with interest since the builder or developer seems to have not handed over the possession to you as per the terms of the agreement of the sale. When you ask for such a return of the amount taken by the builder or developer, the Counsel for the Developer is naturally going to resist the full return of the amount given by you and he is likely to deduct Rs 25,000/- as per the Builder Buyer Agreement. However, do not forget that vide sec 89 of RERA, the act has gotten overriding effect and therefore the provisions of sections 18 and 19 of the RERA in the matter of refund shall prevail over any provisions of the Indian Contract Act 1872, irrespective of whatever agreement you might have signed with the builder.
- Should you not want to change your mind and do not wish to withdraw from the project you can still ask for the interest for every month of delay till handing or of the possession by the promoter (i.e. Builder or Developer).
- Vide Sec 31 of RERA, you may file a complaint with the authority or Adjudicating Officer under RERA.
- Depending upon the state where you have booked the flat through a developer in whatever project it is, the RERA Rules of that State made under the RERA Act shall prevail and you as an allottee or the counsel chosen by you to represent you in RERA will have to fill in Form B i.e application to Adjudicating Officer for claiming the compensation under section 31 read with section 71 of the RERA.
- Vide, Sec 13(1) of RERA, it has been mandated in the act itself that a promoter shall not accept this some more than 10% of the cost of the apartment, plot, or building as the case may be, as anadvance payment or an application fee, from a person without first entering into a written agreement for sale with such person and register the said agreement for sale, under any law for the timing in force. Not if that be the provisions underRERA, please check as to if your developer or builder has more than 10% of the cost of the apartment even before entering a written agreement for sale with you. If yes, then it is virtual contravention of the act for which the complaint can be filed with theauthority or Adjudicating Officer under RERA, Sec 31 of RERA.
- The remedy under Consumer Protection Act 2019. You can also avail of the remedy under the consumer protection act 2019 simultaneously with the proceedings in RERA because of the following judicial precedents:-
- M/S Imperia Structures Ltd Vs Anil Patni & Others CIVIL APPEAL NO. 3581-3590 OF 2020(@ CIVIL APPEAL DIARY NO.9796/2019), dated 02 Nov 2020 In the Honourable Supreme Court of India. The apex court in Para 21 of this judgment, referred to Virender Jain vs. Alaknanda Cooperative Group Housing Society Limited and others dated 23 April 2013 wherein it was held,
"It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act."
- Further in the same judgment of M/S Imperia Structures Ltd Vs Anil Patni & Others, the Honourable Supreme Court Of India in Para 31 of the judgement referred to Pioneer Urban Land and Infrastructure Limited and another vs. Union of India and another wherein it was held,
Quote,
"100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of a conflict that the Code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code."
Unquote.
- In light of the above judicial precedents , you can file a consumer complaint simultaneously along with the proceedings in RERA for ‘deficiency in service’ as defined under the Consumer Protection Act, 2019 against the builder, as Honourable Supreme Court of India in the case of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. Vs DLF Southern Homes Pvt Ltd, civil appeal No 6239 of 2019 decided on 24 August 2020, has held
- A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming, or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract about the service.The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of deficiency of service as defined under the consumer protection Act. The jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser.
- Should you intend to file the case in consumer court, then file it in the Districtconsumer commission for the simple reason that where the value of the goods or services paid as consideration does not exceed one crore rupees, the jurisdiction of the District commission lies as per sec 34 (1) of the New Act i.e Consumer protection act 2019, since the erstwhile consumer protection act 1986 stands repealed. A complaint to the District consumer commission would lie under sec 34(2) of the Consumer protection act 2019 within the local limits of whose jurisdiction:-
- The opposite party ordinarily resides or carries on business or has a branch office or personally works for gain, Or
- the cause of action, wholly or in part, arises. Or
- the complainant resides or personally works for gain.
You can check the jurisdiction of District consumer commission in Delhi with this link
https://www.centurylawfirm.in/blog/find-delhi-consumer-district-commission-jurisdiction-by-police-station/
