Action against Builder for Delayed Possession
Notify before acting
Before taking any action, it is always advisable to send a legal notice to the opposite side giving them adequate time to respond. Once the notice is sent, the builder might speed up the process to take necessary actions, thereby saving you a lot of time and money. It is true that ongoing delay in possession can be frustrating and torturing at times, but you should not lose hope because you know that there are many steps that you can take if you have faced such kind of a situation. It is always better to have thorough knowledge of these things, lest the builder might take you for a ride. So, be aware and buy smart!
Further after the notice is given and no action is taken by the builder then proper legal action must be taken. A builder who constructs a house or hires the services of a contractor to develop a property is engaged in the act of providing service to his customer, and for which he is getting monetarily compensated. This makes him a service provider and hence liable under the clauses of Consumer Protection Act, 1986.
The consumer is a person who buys any goods and services for the personal use and not for any commercial purpose or for resale. A consumer buying the property for personal use can file a case in Consumer Dispute Redressal Commission. The case can be filed at three different levels that are:-
- District Forum- This forum is established by the State Government.
- State Commission- This is also established by the State Government.
- National commission- This is established by the Central Government.
It depends upon the monetary value of the property or the damage suffered. The District Forums are established in each District and have jurisdiction to entertain complaints where the value of goods or services and the compensation if any, claimed does not exceed Rs.20, 00, 00 (Twenty Lakhs). The State Commission is established in each state and have jurisdiction to entertain complaints where the value of goods or services and the compensation if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. The National Commission has jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds rupees one crore. A consumer can file a complaint in the consumer forum against the builder/developer. The complaint must be filed within two years from the date of the dispute.
A property buyer can file a case in the following scenarios:
a. Non-execution of relevant sale agreement despite having received a substantial advance amount
b. Non-issuance of copies of all relevant documents viz.; development agreement, power of attorney, sanctioned plan (by concerned Regional Authorities), specification of construction materials/design as per sanctioned plan and any other relevant documents
c. Charged higher than the agreed amount
d. No issuance of proper receipt(s) against the paid amount
e. Poor quality construction
F. Delivering of a house not complying to agreed specifications
g. No free parking space within the premises
h. Did not form a co-operative housing society and handed over to members
i. Non-provision of water storage tank
j. Non-provision of proper ventilation and light
k. Delayed possession beyond the stipulated time limit
l. Not obtaining completion certificate from the concerned registered (by the authorities) architect
m. Non-issuance of Occupancy Certificate at the time of delivery of respective flats/house to its occupants
n. Non-declaration of expenses against which the developer collected money
Any project falling short of above listed causes are liable and eligible to be taken an action against.
Legal remedies available to the buyer
The purchaser/ complainant can get inter alia the following reliefs:
- Claim the money required to buy alternate accommodation at the ongoing market value in the respective area. The purchaser can also claim the money given to the builder.
- Claim interest on the payment made till date.
- If the purchaser/ complainant is buying the property for personal use, he can file a complaint seeking relief in the Consumer Dispute Redressal Commission.
- If the purchaser/ complainant is sure to get possession of the flat in a few months or years, he can claim compensation for the money that he will spend as rent on an alternate accommodation. This will be applicable if he is a first-time home purchaser, or if his building is being redeveloped.
- The purchaser can claim damages for loss of opportunity caused to the purchaser, had he invested his money elsewhere.
Therefore, before signing any contract, buyers should read all the points, including the disclaimers and check the builder’s financial credibility.
How to file a Consumer Complaint
At first identify the Jurisdiction of the Forum where the complaint is to be filed. This issue needs to be identified from two angles of jurisdiction i.e. Territorial and Pecuniary.
The Consumer has to take into consideration both the territorial and pecuniary jurisdiction of the tribunal in mind before filing his complaint and has to choose the correct forum.
Territorial Jurisdiction of the Consumer Forums:-
A complaint shall be instituted in a District Forum or State Commission or National within the local limits of whose jurisdiction,—
a) The opposite party resides or caries on business or has a branch office or personally works for gain, or
b) If there are more than one opposite party, then any one of the opposite parties resides, or carries on business or has a branch office, or personally works for gain,
Provided that in such case the permission of either District Forum, State Commission or National Commission as the case may be, or the opposite parties who do not reside in such place or carry on business or have a branch office or personally works for gain as the case may be, must be obtained , or
c) The cause of action arose.
PECUNIARY JURISDICTION OF CONSUMER FORUMS
Up to Rs. 20 Lakhs
Rs. 20 Lakhs to Rs. 1 Crores
Exceeding Rs. 1 Crores
Step 2: You will be required to pay a prescribed fee along with your complaint before the District Forum, State Commission & the National Commission as the case may be.
Step 3: Then you have to draft your complaint stating facts necessary to establish a cause of action.
Step 4: At the end of the complaint you have to put your signatures. In case any other person is authorized to file the complaint then complaint has to be accompanied with authorization letter.
Step 5: Don’t forget to mention the name, description and address of the complainant and the name, description, address of the opposite party or parties against whom relief is claimed.
Step 6: Copies of all the documents supporting your allegations. In this you can put on record the copy of the bill of the goods bought, warranty and guarantee documents and also a copy of the written complaint and notice made to the trader requesting him to rectify the product.
Step 7: You can also ask for compensation costs which should be specifically alleged in the complaint. Besides compensation, a consumer can also ask for the refunds, damages, litigation costs, and interest amount. You must give the breakup of amount claimed under different heads but do remember to claim compensation or other relief as per the pecuniary value of the forums.
Step 8: Explain in your complaint as to how the case falls within the jurisdiction of this forum.
Step 9: Complaint must clearly state as to what relief is sought against the opposite party.
Step 10: The Act provides for limitation period of two years from the date of cause of action. In case there is delay in filing the complaint, please explain the delay which can be can be condoned by the Tribunal.
Step 11: You are also required to file an affidavit along with the complaint that facts stated in the complaint are true and correct.
Step 12: The complainant can present the complaint in person or by his/her authorized representative without engaging any advocate. The complaint can be sent by registered post. A minimum of 5 copies of the complaint is to be filed in the forum. Besides this you have to file additional copies for each opposite party.
Rights as a Consumer
1. Right to Safety:
According to this right the consumers have the right to be protected against the marketing of goods and services which are hazardous to life and property, this right is important for safe and secure life. This right includes concern for consumer’s long term interest as well as for their present requirement.
Sometimes the manufacturing defects in pressure cookers, gas cylinders and other electrical appliances may cause loss to life, health and property of customers. This right to safety protects the consumer from sale of such hazardous goods or services.
According to this right the consumer has the right to get information about the quality, quantity, purity, standard and price of goods or service so as to protect himself against the abusive and unfair practices. The producer must supply all the relevant information at a suitable place.3. Right to Choice:
According to this right every consumer has the right to choose the goods or services of his or her likings. The right to choose means an assurance of availability, ability and access to a variety of products and services at competitive price and competitive price means just or fair price.
The producer or supplier or retailer should not force the customer to buy a particular brand only. Consumer should be free to choose the most suitable product from his point of view.
According to this right the consumer has the right to represent him or to be heard or right to advocate his interest. In case a consumer has been exploited or has any complaint against the product or service then he has the right to be heard and be assured that his/her interest would receive due consideration.5. Right to Seek Redressal:
According to this right the consumer has the right to get compensation or seek redressal against unfair trade practices or any other exploitation. This right assures justice to consumer against exploitation.
This right includes the right to representation in the government and in other policy making bodies. Under this right the companies must have complaint cells to attend the complaints of customers.
The right to redressal includes compensation in the form of money or replacement of goods or repair of defect in the goods as per the satisfaction of consumer. Various redressal forums are set up by the government at national level and state level.
According to this right it is the right of consumer to acquire the knowledge and skills to be informed to customers. It is easier for literate consumers to know their rights and take actions but this right assures that illiterate consumer can seek information about the existing acts and agencies are set up for their protection.
The government of India has included consumer education in the school curriculum and in various university courses. Government is also making use of media to make the consumers aware of their rights and make wise use of their money.
How to File a Consumer Court Complaint
For this we first have to know who all can file a consumer court complaint.
The Consumer Protection Act itself provides a list of persons who can file a complaint under the Act which is described hereunder-
- Firstly a Consumer
- Secondly, Any voluntary Association Registered under the Companies Act, 1956, or under any other law for the time being in force
- Thirdly the Central government or the State Government
- Fourthly one or more consumers, where there are numerous Consumers having the same interest.
Besides the above list the following can also FILE A CONSUMER COMPLAINT:
- Any person who is a beneficiary of the goods/services
- Legal representatives of deceased consumers
- Legal hers of the deceased consumer
- Husband of the consumer
- Relative of the consumer.
All these people can file a consumer court complaint.
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