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Is token amount paid to builder refundable on cancellation

Querist : Anonymous (Querist) 05 March 2020 This query is : Resolved 
I had booked a flat in Puranik Thane in Feb 2017. We had paid RS 90k as the token amount. The project was supposed to complete by Dec 2018 but it was postponed to Dec 2020 and till Feb 2018 there were no improvement in the project. We were going to do the registration immediately but Puranik's team told us to wait for a month due to stay by court. Later they increased the price of the flat and failed to their price commitment. We asked them to refund us our token amount which they intially agreed after deducting the cancellation charges but now they are denying, saying that it is against their policy. How can we get the refund of token amount ? Is it right if they deduct the cancellation charges from the token amount? What action can be taken in this regard?
kavksatyanarayana (Expert) 05 March 2020
File case against them in District Consumer Forum by consulting a local lawyer who has knowledge in apartment (property) matters.
Raj Kumar Makkad (Expert) 05 March 2020
Why are you demanding refund of your deposited amount rather claim for the damages/compensation for not delivering the possession of the project within the stipulated time?

File a petition before RERA of your State.
Advocate Suneel Moudgil (Expert) 06 March 2020
Claim the refund of your upfront payment along with interest and damages,
Querist : Anonymous (Querist) 06 March 2020
Thank you experts for your reply.. I tried many times to claim the refund but all in vain.. they are saying that it is against their policy. What strong points can I argue upon to claim the refund hassle-free? As the agreement was not executed between the us and builder, can we still claim the refund under RERA? Pls guide me upon the exact course of action
Querist : Anonymous (Querist) 06 March 2020
Thank you experts for your reply.. I tried many times to claim the refund but all in vain.. they are saying that it is against their policy. What strong points can I argue upon to claim the refund hassle-free? As the agreement was not executed between the us and builder, can we still claim the refund under RERA? Pls guide me upon the exact course of action
Querist : Anonymous (Querist) 06 March 2020
Thank you experts for your reply.. I tried many times to claim the refund but all in vain.. they are saying that it is against their policy. What strong points can I argue upon to claim the refund hassle-free? As the agreement was not executed between the us and builder, can we still claim the refund under RERA? Pls guide me upon the exact course of action
Querist : Anonymous (Querist) 06 March 2020
Thank you experts for your reply.. I tried many times to claim the refund but all in vain.. they are saying that it is against their policy. What strong points can I argue upon to claim the refund hassle-free? As the agreement was not executed between the us and builder, can we still claim the refund under RERA? Pls guide me based upon the exact provisions of RERA
Raj Kumar Makkad (Expert) 06 March 2020
You have mentioned in the first line that you had booked...... If flat was booked then they might have issued receipt against it with certain terms and conditions. Better to study those terms in the light of delay of the project and accoindgly issue legal notice containing therein entire facs and demand, failing which move to RERA.
SHIRISH PAWAR, 7738990900 (Expert) 06 March 2020
Dear querist,

Filing consumer complaint is best against the builder. You are entitle for compensation from builder as he failed to handover possession from builder.

Regards,
KISHAN DUTT KALASKAR (Expert) 06 March 2020
Dear Sir,
You can get issue a Legal Notice and file a case before consumer forum because the default was committed by the builder.
Raj Kumar Makkad (Expert) 06 March 2020
Here is a case wherein the dispute was whether such complaint should be filed before RERA or Consumer Forum, the difference is situation has been elaborated. Kindly read:

After the introduction of the RERA (Real Estate Regulation and Development) Act, 2016 (hereinafter referred to as "RERA") adjudication of real estate matters whether registered or non-registered with the RERA were categorically held to fall within the scope of the Act as per the judgment in the case of Simmi Sikka v. M/s Emmar MGF Land Limited[1]. The order of HARERA (Haryana Real Estate Regulatory Authority) clarified that the projects registered previously with the Director of Town and Country Planning (hereinafter referred to as "DTCP") before commencement of the Act can be adjudicated by RERA. In the present case the developer M/s. Today Homes and Infrastructure Pvt. Ltd. (hereinafter referred to as "developer") registered the project titled as "Canary Greens"[2] with the DTCP, Haryana. The Complainant Ajay Nagpal had purchased a flat in the said project whereas delivery of possession was not handed over to the Complainant. The Complainant filed case before the NCDRC New Delhi for which preliminary issues were raised by the developer with respect to maintainability of the complaint since the inception of RERA, disputes relating to real estate matters where specifically brought within the purview of RERA Act, 2016. The Commission in the present case has distinguished the powers and jurisdiction of RERA from that of the Consumer Forums instituted under Consumer Protection Act, 1986 (hereinafter referred to as the CPA, 1986) and whether filing a consumer complaint before the consumer forums by itself would be barred by specific provision of section 79 of the RERA Act, 2016.
Dr J C Vashista (Expert) 07 March 2020
I fully agree, endorse and appreciate advise of expert Sh. Raj Kumar Makkad.
RERA is the only, economical and best option amongst other forum(s).
Querist : Anonymous (Querist) 09 March 2020
I highly appreciate the efforts taken by the experts to reply on my query. Thank you so much..!!
Raj Kumar Makkad (Expert) 09 March 2020
You are always welcome Mr. Author.
Rajendra K Goyal (Expert) 16 March 2020
Humbly and respectfully differ. Consumer forum can be approached even after RERA came in existance.

"Aftab Singh v. Emaar MGF Land Limited & Anr" are as follows:
The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act; The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts. A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has not approached for redressal of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act. But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.

Mere availability of a right to redress the grievance in a particular Statute will not debar the Complainant/Consumer from approaching the Consumer Fora under the Consumer Protection Act. Even though various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right
T. Kalaiselvan, Advocate (Expert) 21 March 2020
You have the options of approaching RERA or consumer forum for relief and remedy.
First you communicate your decision to cancel the booking in writing for the reasons that the builder is playing double game by increasing the price now giving flimsy reasons, hence you are cancelling the booking due to the fault of the builder who is maintaining double standard in this aspect.
Demand refund of full booking amount with interest from the date of booking, failing which you may proceed with the legal action which may be appropriate as per the circumstances and cost effective as well as expeditious.


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