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Rights & interests in property are the basis of real estate property rights. It can be aggravating to spend our hard-earned money on an apartment, a house, or any other property and not receive it on time. Furthermore, whenever the developer stops returning our calls and continues to delay the acquisition of our ideal home, it saps all of our energy, attention, and mental tranquilly. We not only lose money in EMIs and rent payments, but our mental anguish may also disrupt our household and unity. Fighting a court battle is both time-consuming and exhausting. As per the estimates, in Delhi NCR alone, more than 3 lakh home buyers are waiting for possession despite making 90% of their price.
In some cases, the delay is even prolonged for as long as 5 to 6 years wherein the developers get away with their fault by not mentioning the date of possession in the agreement. These malicious liberties taken at the hand of the developers can most certainly take a mental toll on the buyers. This situation is very alarming for the country as such cases are prevalent all over India, and it is essential to protect the rights of every citizen.
Possession Of Property
Eminent jurist Salmond says,” the continuing exercise of a claim to the exclusive use of a thing constitutes its possession.”
Possession began to take precedence over proprietary rights in the evolution of the civil (or Roman) legal system, and the similar is valid for the common-law (or Anglo-American) framework. This also serves a significant part in both criminal and civil law. As in criminal law, this quantity of property holding offences forms the primary foundation for the determination.
As a result, possession is often seen as prima facie proof of the title to ownership; it confers this right on everybody except the true owner. The simple existence of possession of an object by a finder is adequate to give rise to a lawsuit against one who deprives him of it with no higher claim than his own. Buyers receive ownership promises from developers and builders but do not receive possession of their corresponding characteristics; however, there is a distinction between owning and possessing; ownership refers to universal rights of lawful claim to an item, whereas possession refers to the custody of an object. It refers to the owner’s ownership of a thing, whereas possession refers to actual authority over an object. The case dealt with here is when the builders get the money for the flat and transfer the ownership to the buyer, but the possession is not given to the buyer. This case is a grave violation of my legal rights as an owner, and therefore it must be dealt with by justice providing entities of the country.
Remedies to Buyers in Case of Delayed Possession
Delayed possession occurs when the builder fails to deliver the property in a prescribed time. The real estate sector has been suffering for years because of this chronic problem. It causes mental harassment as well as monetary loss to the consumers. However, in case of delayed possession, the buyer has various legal remedies under civil, criminal, and consumer laws. Any real estate developer follows a standard procedure that includes putting money into the project, paying for approvals, and finalising the design and development plan. At this stage, a builder wants to sell 20% of the overall stock in order to raise working money for future buildings. However, because the market is weak at the moment, the builder is having difficulty raising funds required to begin building, causing the project to be delayed.
However, the buyer can seek remedy under the Consumer Protection Act, the Real Estate Regulation Act, 2016 and NCLT. Let’s discuss the remedies in detail:-
Real Estate Regulation Act, 2016 (RERA)
RealEstate (Regulation and Development) Act1 (RERA) is an act passed by the Parliament in 2016 that came into effect fully on 1st May 2017. It aims to protect homebuyers while also assisting in the growth of real estate investments by bringing efficiency and transparency to the real estate sale/purchase process. The Real Estate Regulatory Authority (RERA) is established in each state to regulate the real estate market. Also, it a dedicated court for resolution of disputes arising in the real estate sector. It also provides for establishing an Appellate Tribunal to hear appeals from the orders, directions, and decisions of the Real Estate regulatory authority and the adjudicating officers appointed on this behalf.
It aims to safeguard homebuyers while also encouraging investment in the real estate sector by increasing efficiency and openness in the sale and acquisition of real estate. The Act creates a Real Estate Regulatory Authority (RERA) in each state to regulate the real estate sector and a dedicated court to resolve real estate-related issues. It also allows for the formation of an Appellate Tribunal to courts of appeal from the Real Estate regulating authority and adjudicating officers’ orders, instructions, and conclusions. Suppose the real estate agent violates the order of the Appellate Tribunal. In that case, he shall be punished with imprisonment of a maximum of one year or with a fine for every day for each continuous default. However, it may extend cumulatively up to 10 per cent of the estimated cost of an apartment, plot, building or whatever is the case that is up for sale or purchase or both.
An exception to RERA is that the complaint cannot be filed in cases where an occupancy certificate is granted. The act enables the buyer to get a 100% refund and monthly or annual interest till the day delay is continued. The time period given to disposing of a RERA case is generally 60 days, and the litigation costs within Rs. 25,000 to Rs. 75,000.
Aftab Singh v. Emaar MGF Land Limited & Anr (Consumer Case No. 701 of 2015)
In this case, there was a dispute that if this case falls under RERA, a consumer complaint can also be filed against the builder. The facts of the case are as follows here the builder promised to build villas and make them available for delivery within a stipulated time; however, he failed in this regard. Following that, he filed an application under the Arbitration and Conciliation Act of 1996, requesting that the judicial authority refer the parties to arbitration because the principal agreement between the buyers and the builders included an arbitration clause. Furthermore, a consumer complaint was lodged against the builder in the forum. Still, he contended that the forum does not have jurisdiction to try the case, as the matter is already pending under a different statute and authority. The Supreme Court ruled that the Consumer Protection Act is a complement to another statute and does not override a right conferred by another statute. The forum under the act is not to be considered a civil court. Just because an alternate remedy is available to a consumer under a statute, it cannot stop him from approaching the forum. Although there are provisions of RERA expressly for the protection of Developers and Builders and for protecting the rights of buyers in regards to substantial compensation, all of this does not curtail the right or limit it, for instance.
Section 71 of RERA provides for adjudicatory powers does not in any way stop the person from invoking the rights under CPA. In the same case before NCDRC, the agreement does not bar the parties from going to the forum for redressal of issues. Hence, now it is an established principal that consumers now have to option to approach the RERA forum and Consumer Protection forum for redressal of their issues.
Consumer Protection Act, 2019
Originally passed in 1986 and amended in 2019, Consumer Protection Act enables the buyers to file a complaint about ‘deficiency in service’ against the builder. Under CPA 2019, such delayed possession may constitute deficiency in services justifying a complaint under section 2(6)3 of the said Act, whilst one-sided terms and conditions in favour of the builder/developer to justify a delay in construction or possession may be similarly dealt with as an “unfair contract”.
When a person facing any issue of the possession of a property being delayed by the seller, the aggrieved can file or submit a complaint against the developer as per the Consumer Protection Act, 2019, to the forum under whose jurisdiction the property or the developer’s office lies. If the buyers fall under the concept of consumer as defined by the law, the CP act will have jurisdiction. Buyers can register complaints in the Dispute Forum for up to Rs. 1 crore, while filing complaints in SCDRC for up to Rs. 10 crore and NCDRC for more than Rs. 10 crore under this act. It enables buyers to get a refund with interest or possession, delay compensation for mental harassment, litigation costs, etc.
According to Section 11 of the Act, the District Forum’s pecuniary jurisdiction to hear the complaint is limited to the value of the goods or services and compensation up to the amount of rupees twenty lakh. However, Section 17 of the Act states that the State Commission has pecuniary jurisdiction to hear the complaint if the value of the goods or services and compensation exceeds rupees twenty lakhs. Nonetheless, it does not exceed one crore rupees.
Similarly, Section 21 states that if the value of the products or services and the compensation exceeds Rs. one crore, the National Commission has pecuniary power to directly hear the consumer complaint. The builder/developer’s failure to deliver possession of the flat/plot offered to them, as well as a complaint filed for the benefit of or on behalf of all such customers and seeks the same relief for all of them would be legal under the Consumer Protection Act’s Section 12(1)(c). Here are some cases of complaints under CPA for the delay in possession of property.
Jitendra Balani v. Unitech
Herein, The Complainants had booked residential apartments with Unitech (Defendant). Buyer’s Agreement dated 16.04.2010 was executed between them. The builder was required to deliver possession of the flat to the Complainants within 36 months from the date of the Buyer’s Agreement which he failed to do so.
Commission found that none of the reasons given by the Builder for the delay, such as non-availability of construction material or labour, were tenable. The Builder was directed to deliver possession of the flats to the Complainants and pay compensation at 12% simple interest as compensation from the time the possession was due under the Buyer’s Agreement till the date possession was granted. In relation to the Complainants who no longer wanted the flats, the Builder was directed to refund the money they paid and pay interest at 18% from the date of payment.
National Company Law Tribunal (NCLT)
If the delivery of your home in a project is delayed or there is a developer default due to a shortage of funds, then it is time to take matters into your own hands. Such a situation warrants immediate action, and the longer you wait for the builder to deliver on his promises, the greater your chances of getting your dreams shattered. Developers take money from home buyers of a particular project and use it to start another one. The end result is that neither project gets completed on time. Thus, the builder gets into a debt trap over time and does not reveal to the home buyers that possessions will be delayed or the project itself may be stalled.
In such a scenario, approaching the National Company Law Tribunal (NCLT) makes the most sense. Even the Supreme Court, in its recent order, has upheld the fact that the homebuyers can take real estate developers into bankruptcy proceedings. This is because homebuyers now are at par with other creditors to get their share of the developer’s assets. If the builder is unable to continue or complete the real estate project, the buyer may file for insolvency under the 2016 Insolvency and Bankruptcy Code. This well-established statute, which has an appellate body called the National Company Law Appellate Tribunal (NCLAT), deals with matters involving registered firms in bad financial shape with a disputed value of more than Rs. 1 lakh. It pays the company owner for the company’s dissolution and allows them to collect their part of the liquidation proceeds. According to the statute, the average time it takes to conclude a matter is between 9 and 12 months. Its court fee is Rs. 25,000, with the litigation cost varying for any individual from 60,000 to 1,50,000 and NCLT Group (10+) from 30,000 to 50,000 per person.
Some of the major builders that were dragged to the NCLT are:-
In 2017, the Bank of Baroda (BoB) approached the NCLT, seeking the initiation of insolvency proceedings against the Amrapali Group for loan default. The NCLT order was challenged in the Supreme Court because insolvency proceedings would have harmed buyers’ interests. The state-run NBCC was eventually appointed to take over the now-defunct Amrapali projects by the SC.
Jaypee Infratech was sued by IDBI Bank before the NCLT in 2017 for non-payment of dues. The dispute was eventually taken to the Supreme Court, which is now looking for a buyer for Jaypee’s pending projects.
The Supreme Court of India recently held that the homebuyers are at liberty to approach the consumer forum to claim compensation in cases where the payment has been made. Still, if the developer is either delaying or rejecting the possession of the properties after the promised date of possession has passed, as per the agreement between the purchasers and the developer, the homebuyers can seek the consumer forum. Hence, the delay in possession of the property can be caused due to many problems. One must be cautious while purchasing a property. The buyer must thoroughly read the points and disclaimers in the buyer builder agreement. The builder’s financial credibility must also be investigated. If a contract is executed with no favourable terms, the buyer may have no legal recourse in the judicial process. As a result, before signing a real estate deal, the buyer must exercise caution.
This article is authored by Shruti Mishra, student at Fergusson College, Deccan Education Society.