Legal Question in Real Estate Law in India
Background:--I had booked a flat from a builder in kolkata on 24.12.15. As per booking terms, I had to pay 1 Lakh at the time of booking, 10% within 20 days of booking (13.01.16) and 85% within 45 days of booking (08.02.16). The purchase is on the basis of agreement executed between me and builder.However, it is not registered. Out of total Flat price, 10% was paid by me & 90% by bank loan.However, the builder delayed the process of providing documents required for home loan to me substantially and provided me documents in pieces and installments despite many reminders , resulting in delay in processing of the same by my bank/lawyer. Due to this there was delay in payment to builder.
Details of Payment/Delay:--The details of payment is as follows:--I paid builder Rs 1lakh+ on 24.12.15. Thereafter , as builder was not giving some documents and hence lawyer had not cleared the property and home loan application was also getting delayed,I hold the payment of 10% (my share) and released the same on 02.02.16 only after release of more satisfactory documents to the satisfaction of lawyer during searching/verification. Hence , delay was due to delay in submission of documents by builder.However, for loan processing ,some of the documents required by bank were not provided on time by the builder resulting in delay of loan processing & disbursement.After disbursement, I released 85% payment on 26.02.16 and that time in demand notice, the builder did not charge any penalty. However, a small line was there in notice that total due amount is excluding interest for late payment..
Mail communication with builder:--Builder had sent me mail on 05.02.16 to make payment within timelines to avoid penalty. In response, I replied him on 08.02.16 that the delay is due to delay in receipt of documents from builder's end. Hence, I requested them to count the payment schedule from date of receipt of all documents from him and also requested them to not to charge any penalty. However, the builder did not reply to the mail. In earlier communication also, many times I requested him to provide documents & count the payment schedule from date of receipt of all documents from him . However, there was no reply/rejection of my request from builder.
Current demand for penalty:--Now, after 3+ months at the time of final payment, builder is asking for penalty for old delay and interest thereon @18% per annum as per clause of agreement.
My view:--I already made 100% flat cost payment to builder on 17.06.16 as per his demand & requested him to waive penalty as it is wrongly charged as per my view -both the basis of charging & calculated charged amount are wrong as there is delay from builder's end for documents.
Clauses of agreement & booking form:--As per clause of agreement, the builder shall also provide to me all available documents for the buyer availing loan from banks to finance the purchase of flat. However, as per application/flat booking form conditions:--"The financing of proposed flat is responsibility of applicant only. The developer or any of its representatives are not responsible for sanction, disbursal or delay for any of banking formalities."But, booking form further says that after lapse of 15 days from date of application , all conditions of sales agreement will prevail.
Builder�s reply:--However, builder was not replying initially and after rigorous follow up, they replied that my case can be considered for part waiver. On calculation, I found that builder has inflated penalty by more than double by using wrong formula, which is different from what mentioned in my agreement . As per my calculation, according to agreement, in normal course penalty should be around 42000/-, whereas builder has demanded Rs. 1 lakh+ . I believe that no penalty should be imposed as this is not normal scenario as there was substantial delay from builder in providing documents, which led to delay.Now, after repeated requests & complaints, builder's senior official has given me appointment on 24.06.16 to listen to my complaints & discuss the issue.
My Queries:--My queries are as follows:--
1).As there was substantial delay from builder's end to provide documents, can it be treated as deficiency in service ?
2).Can the payment schedule be deemed to be treated as extended by no. of days builder delayed the submission of all documents as requested by me to builder as the builder did not reply to my mails and didn�t even reject my request .
3).Can I go to consumer forum against builder for waiver of penalty and deficiency in service?
4). Is there any out of court settlement possible once complaints is lodged in consumer forum?Please guide & suggest best course of action.
1 Answer from Attorneys
1) As per agreement, the builder is not concerned about ur home loan.
2) First discuss and try to sort out amicably and then think based on outcome.
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