Case of an NRI – Court judgement against property developer

Court judgement against property developer

In the present matter, the Complainant booked a Residential floor in the Project ‘Omaxe Cassia’ of the Developers. The Allotment letter (26.07.2012) provided that the floor would be delivered within 24 months from the date on which Agreement will come into effect but not later than 30 months (25.01.2015). The Complainant paid about Rs.51 lacs of the total amount of Rs. 56 Lacs. Developers through various emails sought the extension of the period for delivery but failed to transfer the possession of the Floor within the stipulated time.

The Complainant filed the Complaint in State Commission, U.T. Chandigarh holding the Developers responsible for Unfair Trade practises and deficiency in services. The Complainant claimed possession of floor along with interest, compensation and cost of litigation.

Claimed possession of floor along with interest, compensation and cost of litigation

The Developers challenged the complaint on the following grounds:

  • The matter was to be referred for Arbitration as per the Agreement.
  • The suit cannot be filed in the State Commission of Chandigarh as payments were made in New Delhi.
  • The State Commission did not have the Monetary Jurisdiction to deal with the case.
  • The Complainant being an NRI has bought the property for commercial purposes.
  • Time is not the essence in the case of sale of immovable property.

The Commission directed the Developers to complete the construction of the project and handover the possession along with fine or interest @12% p.a. and compensation for mental agony and harassment (as the Complainant invested huge amount of money with the hope to get a roof over his head but could not because of the Developer’s failure), and also Rs. 50,000 as the Cost of litigation.

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What property lawyers have to say to protect you against builders disputes

property lawyers protect you against builders disputes

One of the most frequent complaints that we receive from NRIs is their property disputes and claims against Builders. Whether it is false claims or unnecessary delays, NRIs often fall prey to the manipulative attitude of the property developers and seek legal advice from our property lawyers.

Our government is trying to create a transparent environment by bringing about certain changes. Black money, Benami Property, and Corruption are few parasites on which our government is focusing on and trying to eradicate them. Along with this, the authorities are seeking to attract investors so as to improve India’s infrastructure.

However, Real Estate remains one of the major sectors where NRIs face issues of corruption and false claims. These could be all kinds of issues related to property such as illegal possession, fake deals, delay in transfer of assets and much more – especially in the case of NRIs.

NRIs mainly face Property Issues in two cases:

  • When they invest in property in India
  • When they sell their assets located in India

When they invest in Property in India:

NRIs invest their money in real estate in India as an investment to earn returns or as security but many times face various challenges. One of the major issues that they face is Non-delivery of Possession on Time or Investing with wrong builders who delay project completion, causing significant financial loss to them. The Property Developers in India try to attract NRIs with fake claims of projects which are backed by false information, photos and videos. They take benefit of the fact that NRIs live overseas and can’t always be there to keep an eye on them and the development.  But the NRI can take precautions on his/her behalf and protect from such fraud builders.

  • Check the track record of the developer such as the projects completed by the builder in the past
  • Delivery of the said project on time
  • Transfer of title of the property without any issue
  • Criminal history of the developer if any
  • Quality of the previously delivered projects
  • Ensure that the seller owns the property and has the right to sell the same.
  • Check if the land falls under village survey or city survey.
  • If the land is under village part make sure it’s not an agricultural land because as per government rules NRIs cannot invest in Agricultural Land, Farmhouses, and Plantation Property.
  • If the land is under city part, the NRIs can invest in residential or commercial property without any hesitation.
  • Before buying the property, the investor should check the approved layout/plan of the concerned property along with the common space available to other buyers. The investment money also includes the cost of the common areas.
  • Sometimes at the time of investing the builder does not ask for the stamp duty and registration. In such a case the NRIs should request a declaration stating these are not applicable.

Once the investor has selected a suitable developer, he/she should with the help of a property lawyer study the agreement properly. It should be ensured that the agreement contains the:

  • delivery date
  • possession date
  • the contract amount
  • regular maintenance fees

Also, it is better to ensure that the development is as per state’s laws and bye-laws. The investor should ask for detailed drawings of structural details, electrical fittings, plumbing, drainage and water supply details for future reference. The investor should ask for Completion Certificate specifying that everything is as per the norms. One needs to ensure that all the signatures involved are proper. But one can use fingerprints to protect themselves from any fraud as it is a foolproof thing. Sometimes even with all the precautions, the NRIs may face the problem of delay in possession of property.

In such a case there is an excellent solution to the problem i.e. The Consumer Court. It has been set up in every state mainly to address the need of the consumers who have been given inadequate services. These are known as fast track courts. Here the NRIs can exercise their rights and hire a legal aid to file an application for the Developers for their wrong doings.

NRIs are not only entitled to receive their refund back but also to get a penalty, litigation cost, full interest, and damages from the developers. The NRI should be ready with following documents before filing the complaint application-

  • The complete record of communication with the builder
  • All the proof of payments made
  • The contract/agreement should be in his/her custody
  • The process of filling the complaint is very swift.

When they sell their assets located in India

Living overseas often restricts the person to travel to India to manage their property. In such a case they face problems of illegal possession, land grabbing, complete loss of assets due to lack of proper documents and much more.

But sometimes they face major issues when try to sell their assets located in India. They face fraud due to the lack of knowledge of their legal rights.

While selling their property, the NRIs should verify all the details of the buyer and take help of the property lawyers. The agreement should be made with the help of an attorney and contain all the information such as buyer’s name, seller’s name, the amount of contract, etc. and special focus should be put on the signatures involved.