When ev­ery­thing else fails... go to court

Keep pa­pers handy to prove that your de­vel­oper has re­neged on his prom­ise to give you a dis­count

HT Estates - - HTESTATES - Jee­van Prakash Sharma

What are t he l e g al op­tions for a con­sumer in case a de­vel­oper backs out of a com­mit­ment? Le­gal ex­perts say people usu­ally hes­i­tate to take ac­tion against a builder as they feel it means a waste of time and money, but proper ac­tion can bring the guilty to book.

The real es­tate mar­ket is flooded with of­fers rang­ing from gold coins, LCD TVs, air con­di­tion­ers, for­eign trips to cars or hand­some cash dis­counts on book­ings dur­ing the fes­tive sea­son. “So, if a home­buyer wants to drag a builder to the court for back­ing off from his prom­ises, he must have a writ­ten of­fer duly signed with a seal of the pro­moter. He should go through the con­tent minutely (the fine print),” says SK Pal, a Supreme Court lawyer.

Ex­perts say that these of­fers in most cases are con­di­tional, not as­sured and are of­ten routed through part­ners/third party ven­dors so the re­spon­si­bil­ity of hon­our­ing the com­mit­ment is shifted to the third party ven­dor from the builder. The builder thus of­ten re­fuses to en­ter­tain any query. In the event of re­fusal or de­lay in pro­vid­ing the gift, a buyer needs documents to prove that the of­fer was ac­tu­ally from the pro­moter through the third party ven­dor so that the con­sumer court with com­pe­tent ju­ris­dic­tion can be ap­proached to re­cover the gift.

Says Pal, “Here it is im­por­tant to check the of­fice ad­dress of t he t hird party ven­dor be­cause the court within the ju­ris­dic­tion of the ven­dor will hear such claims. It is also es­sen­tial that the pro­moter fur­nish de­tails of the ac­tual of­fer and the equiv­a­lent value of the of­fer in ru­pees in his/ her own name and lay down the con­di­tions clearly. Con­sumer courts have con­sis­tently held the orig­i­nal com­pany li­able for de­fi­ciency when­ever the con­sumer has proved the point that it was ac­tu­ally an of­fer from the com­pany to en­tice the buyer to buy the prod­uct. But at the same time, one should see that the of­fer in ques­tion should be real­is­tic and not dis­pro­por­tion­ate to the cost of the ac­tual prod­uct.”

Property ex­perts say as the Navra­tra is per­ceived as be­ing aus­pi­cious for pur­chase of a new house, pro­mot­ers are prompted to at­tract home­buy­ers with in­no­va­tive of­fers. One, how­ever, should not lose sight of the fact that a house is a high value property and long-term de­ci­sion and surely not a one­off fes­tive buy.

With the rise in the num­ber of dis­putes in the hous­ing sec­tor, many state leg­is­la­tors have passed laws (apart­ment acts) to pro­tect the rights of con­sumers and, as such, these pro­vi­sions need to be cross-checked when­ever an apart­ment pur­chase de­ci­sion is taken. All the state laws make it manda­tory for the pro­moter to make true dis­clo­sures of the land, FAR/ FSI, com­mon area and fa­cil­i­ties and the lay­out plan de­tails to the prospec­tive buy­ers, which can pro­tect the buy­ers from be­ing taken in by a ‘sam­ple flat’ or a ‘flashy brochure’.

“Buy­ers should in­sist on be­ing pro­vided the sanc­tioned lay­out and build­ing plan (the spe­cific build­ing and floor) on which the flat is lo­cated, land own­er­ship and li­cense de­tails and the draft copy of the al­lot­ment agree­ment. Re­luc­tance to pro­vide any of these documents could in­di­cate that there is some­thing wrong with the project,” says Prashant, a lawyer from Al­la­habad High Court.

He adds, “Sam­ple flats should be seen only to get a sense of the size of each room and the ad­van­tage of the lay­out only be­cause such units are fin­ished and dec­o­rated with the finest qual­ity ma­te­ri­als. You can­not ex­pect that these have been used for your apart­ments un­less the pro­moter of­fers a house with all in­ter­nal works. Mak­ing a re­quest for a list of prod­ucts and the brands to be in­stalled in the house could save you from any dis­ap­point­ment af­ter mov­ing into the house.”

De­liv­ery date of the apart­ment with all com­mon ameni­ties and the pro­jected main­te­nance costs are im­por­tant fac­tors that need to be con­sid­ered be­cause any de­lay in de­liv­ery upsets the pay­ment plans. Ab­sence of com­mon fa­cil­i­ties such as gym, club, swim­ming pools take the plea­sure out of liv­ing in a group hous­ing.

“Tak­ing an in­formed de­ci­sion af­ter due dili­gence and re­search into a project and the pro­moter’s track record can surely help avoid lit­i­ga­tion and make the new house a gift of God this Navra­tra,” says Anil Tyagi, a lawyer from the Ghazi­abad civil court.

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