Legal Question in Construction Law in India

Dear Sir,

I have booked a flat on July 2012 at Shahapur, in Thane District, Maharashtra & as per agreement, builder will give the possession on May 2013. But still I have not got the possession of flat due to under construction. As per demand letters, I have paid 85% amount of flat cost. Every month I am paying bank home loan interest of the amount paid to builder. And I am staying in rented house. Due to non possession of flat, I am suffering the said losses.

As per our Sale Agreement, clause of possession is mentioned as follows:-

"It is expressly agreed that the possession of the said flat will be endeavored to be handed over by the promoter to the purchaser by May 2013, provided the promoter has received full purchase consideration of the said premises and all other amounts payable by the purchaser to the promoter has received such amounts from other purchasers strictly as per time schedule and provided the construction by the promoter is not delayed on account of non-availability of steel and cement. subject to above, if the promoter for any other reasons is unable to give possession of the said premises by date stipulated hereinabove then the promoter agrees that the promoter shall be liable on demand by the purchaser to refund to the purchaser the amounts already received by them in respect of the said premises without interest as also without any deductions of any mount therefrom, after execution and registration of cancellation of the said agreement for sale. Till the entire amount as stated is refunded by the promoter to the purchaser, subject to prior encumbrances if any, such amount shall have charge on the said premises only, but not of the said property. it is agreed upon that refund of the said amount as stated hereinabove, the purchaser shall have no right, title, interest, claim, demand or dispute of any nature whatsover either against the promoter or against the said premises."

In this regard, there is only one reason of delay that builder has divided work on more than 40 nos. of buildings instead of our first starting sector of 10 buildings project. And there is no other issues whereas pending drinking water issue has been sort out before 4 months by making huge water tanks of pure boreing water.

As per MOFA, 1963 & the above clause , can I demand to the bulder for compensation against my said losses till the possession of flat? If so, can I send a letter to builder regarding the confirmation of possession date and a request to refund for compensation against my losses due to home loan interest & house rent. Can it be worked for quick possession.

In this regard, I kindly seek advice from you.

I will be thankful to you for your favourable guidance.

Thanks & Regards,

Santosh Kale


Asked on 2/27/14, 12:18 am

1 Answer from Attorneys
Fca Prashant Chavan Expert Edge LLP

27.02.2014

Dear Santosh,

The relevant clause in the Agreement with the builder clearly allows you to rescind the contract and compel the builder to refund all monies paid by you till date along with interest at the rate charged to you by the bank on your loan, plus compensation for the loss and mental agony for non-receipt of timely possession thereto. Alternatively, if the construction is at a stage wherein the BCC has already been obtained by the builder, and if only the OC is pending, you may get a firm commitment from the builder in writing of the revised possession date, and request him to handover possession and pay him the balance 15% on the date of possession.

Regards,

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Answered on 2/27/14, 4:43 am


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