No time for posession
Guest
(Querist) 29 April 2013
This query is : Resolved
I had taken a shop on lease in an under construction mall(Sept 2011) for which the builders office people told me verbally that the posession will be given by november 1st,2011.with regards to that the builder has signed an LOI(as the agreement shall be made at the time of posession) with me mentioning the same date of posession as mentioned above.the LOI was not directly signed by builder but by his person who looks after marketing,etc on behalf of the builder but till date it has been 19 months and i have not received the posession.
as its too late and i have suffered alot,i gave a letter to the builder stating that i am no more interested in this shop irrespective he gives me posession or not and cancel the same.I have also asked for the refund of Rs 72,000 which i had given as an initial deposit to book that shop.
But now the builders person tells me that as per LOI if i cancel the shop,my 72000 shall be forfeited.when i asked for my letter back the builders person says that it has been misplaced by them which i know is not true.I cannot afford to put my 72000 on stake coz of builders delay.please suggest.
Advocate M.Bhadra
(Expert) 29 April 2013
You should send a Legal Notice through a lawyer to the Builder calling him to refund your money with interest or to give possession.If the Builder would not comply as per notice then file a case in District Consumer Forum against the Builder for deficiency of service,unfair trade practice and mental agony.
You can alternative file a Recovery Suit in Civil Court for Specific Performance of Contract.You can also file a Criminal case u/sec.420 and 406 IPC in Magistrate Court.
But best option is Consumer Forum
"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service"goods" means goods as defined in the Sale of Goods Act, 1930
"unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;-(1) the practice of making any statement, whether orally or in writing or by visible representation which,-(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;(ii) falsely represents that the services are of a particular standard, quality or grade;
Guest
(Querist) 29 April 2013
sir,the builder says that he might give possession may be by july or august...but after so much i do not wish to continue with this builder any more...i do not want the shop..will the consumer court still decide in my favour....does the LOI or my cancellation letter give any kind of strength to the case from builders side if i file a suit against him?
Devajyoti Barman
(Expert) 29 April 2013
yes, it is a good case for consumer forum. You would get compensation if you could prove there was delay in delivery of possession.
Guest
(Querist) 29 April 2013
sir,isnt the indicative possession date mentioned in the LOI a sufficient proof of delay?
Advocate Ravinder
(Expert) 30 April 2013
Yes there are lot of cheating is going on in real estate business. You should be alert. Otherwise they will ditch you. Your decision not to take possession of shop is correct, because you realized the nature and intention of the builder, then why you will invite the risk. After taking possession also he may trouble you again in one way or the other. You can pray in the consumer case relating to cancellation of taking of lease of shop.
Guest
(Querist) 01 May 2013
sir,
the builder has put an arbitration clause.."ANY DISPUTE SHALL BE SOLVED BY THE ARBITRATOR AS PER THE PROVISIONS OF ARBITRATION AND CONCILIATION ACT 1996.THE SOLE ARBITRATOR SHALL BE OF THE LICENSOR...
does this clause go against me? i want to know as i am planning to start my process of filing a suit against the builder...Will my case be considered by the consumer forum in the above mentioned clause?
ajay sethi
(Expert) 01 May 2013
in the event your agreement has an arbitration dispute should be referred to arbitration . the contract mentions it should be refrred to sole arbitrator to be appointed by licensor . invoke the arbitration clause .
R.K Nanda
(Expert) 01 May 2013
No more to add.
prabhakar singh
(Expert) 01 May 2013
Q.Will my case be considered by the consumer forum in the above mentioned clause?
A.Unless you invoke arbitration clause and get a negative response from the builder you can not lodge consumer complaint directly.
Guest
(Querist) 01 May 2013
sir,looking at the scenario,do you think that i can claim my money back with interest?
prabhakar singh
(Expert) 01 May 2013
Even if time was not fixed,it should be a 'reasonable time' which has to be developed by you from circumstances you booked the shop your time bound need and assurance of delivery.
Consumer complaint can be filed even ignoring arbitration clause subject to a risk of his objection .It would not cause any harm except a reference to go on.
The law is not that any earnest can be forfeited as a whole.
A party with earnest has to prove the actual amount of damages caused and it can not claim anything more with a cap that if damages actually caused is more than earnest then party can not claim anything more than earnest.
Guest
(Querist) 01 May 2013
and interest for waiting as long as 18 months and my legal expenses? can i claim that?
Raj Kumar Makkad
(Expert) 01 May 2013
You can definitely claim the interest and expenses in the same petition.
Advocate Ravinder
(Expert) 02 May 2013
There are differences of opinion among the above experts on this subject. Sec.3 of Consumer protection Act is formed for the welfare of the Consumer. Usually the consumer cannot fight with a huge seller of goods or service provider. The consumer cannot afford huge amounts for Arbitration. Hence the consumer is given an option of utilizing either of the Acts.
In Sudarshan Vyapar Pvt. Ltd. & Anr vs Madhusudan Guha & Anr (on 6 December, 2012) it was held that:
Section 3 of the Consumer Protection Act, 1986 provides that the provision of the said Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. He contended that the entire scheme of the Act was enacted for creation of an additional avenue for giving speedy redressal of the grievances of the consumer in respect of a consumer dispute either arising from a defect in the goods purchased as per Section 2(1)(f) of the said Act or for deficiency in the service as per Section 2(1)(g) of the said Act. He, however, did not dispute that arbitration is not an avenue for redressal of such dispute between the parties as per the arbitration agreement entered between the parties. He, thus, contended that when two avenues are open to the consumer for redressal of his grievances, he may opt for any one of such avenues.
But if once you opt for Consumer Court, you cannot utilize the provision under Arbitration Act.
Anirudh
(Expert) 02 May 2013
Dear Mr. Ravinder,
Would you mind giving the citation of the decision referred by you. The decision is of which Court?
Advocate Ravinder
(Expert) 02 May 2013
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
APPELLATE SIDE
Present :
The Hon'ble Justice Soumen Sen
C.O.No.2648 of 2012
Sudarshan Vyapar Pvt. Ltd. & Anr.
Vs.
Madhusudan Guha & Anr.
For the Petitioners : Mr. K.K. Pathak
For the opposite parties : Mr. Indranil Chakraborty, Ms. Suranjan Mandal
Judgment on : 6th December, 2012
Anirudh
(Expert) 03 May 2013
Dear Mr. Ravinder,
Thanks for providing the citation.
I went through the entire decision.
But I am sorry to say that the decision does not support your views that: "Hence the consumer is given an option of utilizing either of the Acts. But if once you opt for Consumer Court, you cannot utilize the provision under Arbitration Act."
On the contrary, it is very categorical that once there is a dispute and if that dispute is covered by Arbitration Clause, then the matter has to be referred to Arbitration only.
Guest
(Querist) 20 May 2013
my lawyer had sent the legal notice to the builder but they did not accept the notice.what should i do now?
Advocate Ravinder
(Expert) 20 May 2013
I studied on this aspect again. I came to know that what prahbakar singh sir had told is correct. First the arbitration clause has to be availed, then only consumer comes.
Dont worry, you frame your contentions by hiring a good lawyer. You will win the case.
I will take back the decision which I have earlier
In Sudarshan Vyapar Pvt. Ltd. & Anr vs Madhusudan Guha & Anr (on 6 December, 2012) it was held that:
Section 3 of the Consumer Protection Act, 1986
Guest
(Querist) 21 May 2013
but sir,the builder did not accept the legal notice and returned it by seeing the advocates envelope.should i send it in a plain envelope to get it accepted?
