Builder Not Giving Possession After Full Payment — Legal Remedies for NRIs in India

Steps If Builder Is Not Giving Possession Despite Full Payment

• Review the Agreement : Check the terms of your sale agreement or builder-buyer agreement, especially the clauses related to possession, completion date, and penalties for delays.
• Send a Legal Notice : Draft and send a formal legal notice to the builder demanding possession of the property. This notice should state that you have made the full payment and request a resolution within a specified time frame.
• File a Complaint with RERA : If the project is registered under the Real Estate Regulatory Authority (RERA), you can file a complaint online. RERA has the authority to enforce possession, impose fines, or even cancel the builder's registration.
• Approach Consumer Court : If you face an undue delay, you can file a complaint with the Consumer Disputes Redressal Commission (District, State, or National level, depending on the property value). The builder may be ordered to pay compensation for the delay.
• Civil Suit for Specific Performance : If the builder continues to refuse possession, you can file a civil suit in the appropriate court to compel them to complete the property handover.
• Criminal Complaint : In cases where fraud or cheating is involved, you may file a criminal complaint under Sections 420 (cheating) or 406 (criminal breach of trust) of the Indian Penal Code.

Landmark Judgements

Inordinate delay in handing over possession of flat to purchaser clearly amounts to deficiency in service on part of builder – Where terms of Agreement wholly one-sided and unfair to Flat Purchaser – Builder could not seek to bind contractual terms.

A. Consumer Protection Act, 1986 Section 23 Delay in delivery of possession of flats – Deficiency in service – Builder obtained Occupancy Certificate almost 2 years after date stipulated in Apartment Buyer’s Agreement during pendency of proceedings before National Commission – As consequence, there was failure to hand over possession of flat to purchasers within reasonable period – Inordinate delay in handing over possession of flat clearly amounts to deficiency of service – Person cannot be made to wait indefinitely for possession of flat allotted to him, and is entitled to seek refund of amount paid by him along with compensation.

B. Consumer Protection Act, 1986 Sections 2(r) and 23 Unfair trade practise – Binding of Apartment Buyer’s Agreement – Perusal of Apartment Buyer’s Agreement reveals stark incongruities between remedies available to both parties – Terms of Agreement wholly one-sided and unfair to Flat Purchaser – Builder could not seek to bind one-sided contractual terms – Builder charged interest @ of 18 % on account of delayed payment of instalment – Whereas in case of delay Builder was liable to pay interest @ of 9% p.a. – NC has rightly awarded 10.7% p.a interest – No illegality in order.

Delay in delivery of possession of flat – Complaint – Choice is given to allottees of flat whether he wishes to initiate appropriate proceedings under Consumer Protection Act or file application under RERA Act.

A. Consumer Protection Act, 1986 Section 23 Real Estate (Regulation and Development) Act, 2016, Section 18 – Delay in possession of flats – Return of amount and compensation – Apartments were booked by Complainants in 2011-2012 and Builder Buyer Agreements were entered into in November, 2013 – As promised, construction should have been completed in 42 months – Period expired well before Project was registered under provisions of RERA Act – Merely because registration under RERA Act is valid till 31.12.2020 does not mean that entitlement of concerned allottees to maintain action stands deferred – Period has to be reckoned in terms of agreement and not registration and entitlement of Complainants must be considered in light of terms of Builder Buyer Agreements – Proceedings initiated by complainants and resultant actions including orders passed by Commission are fully saved.

B. Consumer Protection Act, 1986 Section 23 Real Estate (Regulation and Development) Act, 2016, Sections 71 – Complaint – Jurisdiction – Complainant who had initiated proceedings under CP Act, before RERA Act came into force, entitled to withdraw proceedings under CP Act with permission of Forum or Commission and file appropriate application before adjudicating officer under RERA Act – Provision gives option to concerned complainant but does not statutorily force him to withdraw such complaint nor do provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under RERA Act – Choice is given to allottee whether he wishes to initiate appropriate proceedings under CP Act or file application under RERA Act.

Conclusion

Securing timely possession of one's property can indeed be a daunting challenge, especially when a builder refuses to hand over possession or resorts to unfair practices to deprive the rightful owner of their property. In such situations, it is crucial to adopt a proactive approach and take timely legal action to protect one's interests. Engaging in swift legal proceedings, such as issuing a legal notice, filing a complaint with regulatory authorities like RERA, or approaching consumer courts, can help expedite the process and ensure that the rightful owner receives possession in a time-bound manner. With a well-planned legal strategy and persistence, achieving the desired outcome becomes more attainable, even in the face of obstacles posed by errant builders.