Complaint against Mumbai based construction company named M/s DEV LAND AND HOUSING

This is a complaint against Mumbai based construction company named M/s DEV LAND AND HOUSING LTD, an ISO 9001-2000 awarded, having its Registered Office at 10th Floor, Dev Plaza, Opp. Andheri Fire Brigade, S.V.Road, Andheri (W), Mumbai. Shri Vijay Thakordas Thakkar is Chairman and Mg. Director.

My complaint refers to the non-fulfillment of statutory obligations till date by the Builder under the provisions of Rules and Regulations of Maharashtra Ownership Flats (Regulations of the Promotion of Construction sale, Management and Transfer) Act, 1963, (MOFA).

In the month of June, 2009, I had booked a flat at one of their upcoming residential projects at Veera Desai Road, Andheri, West, Mumbai 400 053, building known as "PRESTIGE" .

Since the building plans were in the final stage with BMC, I was requested by the Builder to wait for some time to let him complete the formalities of issuance of Letter of Allotment of flat earmarked for me followed by execution of Agreement of Sale and Transfer of the said identified flat.

By selling my old flat plus my hard earned money added, I completed the payments comprising full purchase price of flat to the Builder in the month of July, 2009. As on the date, the construction work is going on in full swing and is completed almost 70%. The expected month of possession is said to be in Dec. 2010.

After completion of waiting period of couple of months when I started follow-up for claim of my flat, the Builder on the pretext of one reason or the other started dilly-dallying my request about issuance of Letter of Allotment of flat in "PRESTIGE" to be followed by the execution of Title Documents.

Now, nearly more than 9 months have elapsed; the Builder has neither issued any Letter of Allotment to me identifying a specific flat, nor has executed any Agreement for Sale and Transfer. I had sent many emails/messages and phone calls to him for the Specific Performance but has continued to maintain silence over the matter till date for the reasons known to him.

[AFFA]

I wish to inform you that you can file a suit against the builder. In this you can demand the amount of loss suffered by you under breach of contract. Your suit will be based upon the fact that the builder has not performed their part of the contract and hence should return the amount taken from you. You can argue that you have performed the contract but the builder has not been able to perform his part of the obligations and hence now he should either give you the flat or return the amount.

AFF

You can file under breach of contract. You have filed a complaint under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, (MOFA). Under this Act under Section 4(1) it is necessary that there should be registration of the agreement. From the facts of your case it appears that the agreement is not registered. The Rules regarding registration are governed under Registration Act, 1908. In this regard Section 23 of Registration Act provides about time within which registration should be done. Section 23 states as follows:

"23. Time for presenting documents
Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:

PROVIDED that a copy of a decree or order may be presented within four months from the date on which the decree or order was made or, where it is appealable, within four months from the day on which it becomes final."

From the above it is clear that the time for registration is four months. However in your case the document does not appear to be registered. Hence, the effects of non registration of documents will be taken into consideration.

Effects of Non Registration:

Section 49 of the Registration Act provides about the effect of non registration of documents required to be registered. In this Section 49 states as follows:

"49. Effect of non-registration of documents required to be registered
No document required by section 17 32[or by any provision of the Transfer of Property Act, 1882] to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."

In this regard, Section 49 of Registration Act provides that your agreement may not be able to be taken as evidence as the document is required to be registered and is not registered.

Remedy:

The payment of money clearly shows that payment is for some purpose. From the facts of the case it is clear that the Defendants have not made any allotment. Further, the law of contract provides you remedy for breach of contract. In this regard the builder has not performed its obligations and has violated the provisions of Contract Act. In this Section 37 provides:

"37. The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law."

From Section 37 a duty is cast upon the builder to follow the terms of the agreement and give you a letter of allotment. Further, as required by law you have performed your part of the obligations by providing payment of the flat.

Time within which the builder had to perform the obligation:

In this regard Section 46 provides the time limit within which an obligation has to be performed. Section 46 states as follows:

"46. Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Explanation – The question "what is a reasonable time" is, in each particular case, a question of fact."

The builder is required to perform his part of the obligations within reasonable time. As the builder has failed to perform, therefore, you can claim compensation.

Amount of Compensation:

Section 73 of the Contract Act provides the amount of compensation in case of breach of contract. Section 73 states:

"73. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it."

Under this Section you can ask for compensation for the amount of loss suffered by you. The amount of loss is the amount paid by you to the builder along with interest on it and any other amount spent by you in this regard.

Conclusions:

i) You can claim compensation for the breach of contract caused by you.
ii) Before claiming breach you can give notice to the builder about the fact that you intend to take legal action in case the builder does not give you letter of allotment within the specific period.
iii) The contract has been breached because of the default of the builder and hence you can claim compensation.