• Errant builder. Sold

Dear Lawyers

Here is my story, please bear with it if it's little long. Will appreciate your views on my questions at the end.

..........

I booked a residential property in Pune in Oct 2019 and paid 20% of the amounts before registration on demand of builder as the possession was getting due in Dec 2019. The builder didn't come for registration until mid Dec'19, when I learnt that the same flat was already booked by some other buyer before me and he had also paid 15% of the amounts. The previous buyer said that the builder was asking him to pay more money before registration which he didn't agree and so the builder cancelled the flat and offered him full refund but has still not refunded after multiple follow-ups and so the previous buyer said that he has filed RERA complaint in Dec 2019.

When I questioned the builder about this, he mentioned over mail that the previous booking has been cancelled and all legal steps were taken. When I questioned further, he simply agreed to cancel my booking for full refund in writing over mail. Also he hasn't been able to deliver the property to anyone till now.

Even after multiple follow-ups, he didn't refund me and so I filed RERA complaint in Mar 2020. RERA passed order for full refund with interest in July 2020. The builder didn't comply with the order and so I also filed appeal for execution and after 2 hearings RERA is now issuing Recovery Warrant.

Now the builder sent me a letter with a post dated cheque (PDC) of Feb 2021 with insufficient interest amount.

I've sent him a mail stating that the cheque amount is insufficient. Also I inquired from my other sources that the account from which he issued the cheque has no balance as of now and in past his cheques have got bounced for other clients for which he keeps on delaying by issuing new PDCs.

Also he lied to me in Dec 2019 with a false statement over mail that all legal steps were taken for cancellation with previous buyer but this statement was proved false as the previous buyer also got a favorable RERA order for refund and now has a charge over that property. 

I don't trust the builder anymore and now mentally harassed after learning about all the tactics that he plays.

My questions are,

1. Based on his letter and Post dated cheque, can he delay or prevent the recovery proceedings?

2. If I deposit the cheque amount, can I still seek the insufficient balance from recovery proceedings.

3. If the cheque bounces, I am aware that FIR can be filed, but apart from that, is there any other legal recourse to penalise him for his game and tactics.

4. What he has done with me is not less than a fraud but until now i didn't file any FIR hoping that I'll get my money back with help of RERA, but it seems to delay and I am sure the builder is playing tactics as he had done similar with others in past which I got to know later. Can I include this fraud matter in FIR along with cheque bounce case or it will be time barred?
Asked 4 years ago in Property Law
Religion: Hindu

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9 Answers

1. He can most probably delay the recovery but he cannot prevent the recovery

 

2. Yes of course. You can claim further interest and compensation as well on that unpaid amount 

 

3. You can move Rera by filing an application to delist him and cancel or suspend his Rera registration and also seek damages and compensation from him

 

4. You can include but I doubt the police will entertain. For the cheque bounce you have to initiate 138 proceedings against him in a criminal court and can also file a summary suit in civil court 

Yusuf Rampurawala
Advocate, Mumbai
7658 Answers
79 Consultations

1) builder cannot delay recovery proceedings 

 

2) insist on demand draft 

 

3) return the post dated cheque 

 

4) you can file case of cheating against builder 

Ajay Sethi
Advocate, Mumbai
96716 Answers
7797 Consultations

1. No , he cannot delay 

2. No, 

3. yes 

4. You can file compliant under N.I. Act for the recovery of amount , and also lodge compliant against the builder before the consumer court as well. 

Mohammed Shahzad
Advocate, Delhi
14406 Answers
221 Consultations

If cheque amount is insufficient and not as per court orders don’t deposit the cheque 

 

if you deposit and cheque is dishonoured take out contempt of court proceedings against builder 

Ajay Sethi
Advocate, Mumbai
96716 Answers
7797 Consultations

- No it will not impact the recovery proceeding , if you file a compliant under N.I. Act , as it comes under the criminal proceeding . 

Mohammed Shahzad
Advocate, Delhi
14406 Answers
221 Consultations

It wont affec the recovery proceedings 

Aside from NI act you also have remedy of a summary suit against the bounced cheque

Yusuf Rampurawala
Advocate, Mumbai
7658 Answers
79 Consultations

1. This is another tactics that the builder is playing to avoid making payment of the amount as ordered by RERA. It is not necessary for him to give a post date cheque that too pertaining to the month of Feb-2021, you can refuse to accept the cheque and also insist on full payment with interest that is due to you till the date of making the payment, if there is no proper response, you may again approach RERA for non-fulfillment of the orders by the builder and to attach the properties of the builder till such time he makes the payment or to auction the attached property.

2. If you are not satisfied with the cheque amount then what is the necessity for you to deposit the cheque to your bank account, moreover it is a post dated cheque, you cannot even deposit the same even one day prior to the date mentioned in it.

3. It is not automatic that the FIR can be registered once the cheque bounces and returned dishonoring the cheque payment.

You would be advised by the police to file a cheque bounce case under section 138 NI act, which will again run for years before you get a favorable judgment 

4. You have not deposited the cheque with the bank and you cannot do it now because it is a post dated cheque, hence there is no question of cheque bounce or the builder playing fraud on you so soon.

You may have to wait for the date to deposit the cheque after which only you can initiate any legal action against the builder because there is no cause of action on your side to initiate any legal steps on this.

Instead you return the cheque to the builder and ask him to give the cheque with the current date or you can report the matter to RERA for solution.

Don't take any erroneous action in haste without understanding the law involved in it. 

T Kalaiselvan
Advocate, Vellore
86915 Answers
2331 Consultations

You have mentioned that it is a post date cheque dated Feb-2021, then where is the question of the cheque getting bounced so soon without even depositing the same with the bank and the bank will not accept the post dated cheque now and would ask you to come on the due date only. 

The option before you is to refuse to accept the post dated cheque, ask him to give a cheque to that amount with current date, if he refuses then you can approach RERA for relief.

 

T Kalaiselvan
Advocate, Vellore
86915 Answers
2331 Consultations

1. If the cheque bounces then your remedy will be a cheque bounce case under Section 138 of NI Act before the criminal court, which may take years to be decided.

2. You should file an application before RERA to direct builder to give you a DD instead of cheque.

3. FIR or cheque bounce case will not get you your money back. Your best bet is before RERA.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

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