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Builder giving possession in another apartment

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

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Question: I have booked a flat in 2016. The builder has promised to deliver the flat in 2018. After five years his project is still in progress. Now the builder is giving possession in another apartment. That apartment is far from the city and I don’t want to take possession. Whether the builder can compel to take possession in another apartment? I have paid the full amount to the builder and nothing is due. Therefore, he wants to grab my money.

Question from: Uttar Pradesh

Builder cannot force you to take possession of a flat in another apartment because it is a breach of agreement to sell. When the particulars of a flat have been mentioned in the agreement to sell then the builder cannot sell another flat. Any deviation or change in agreement will cancel the original agreement. Thereafter, you have an option to refuse to perform the original agreement to sell. 

Builder cannot compel to take possession in another apartment

You can refuse to take possession of a flat in another apartment and claim a refund of money. If you agree to take possession of that flat you should substitute a new agreement. Section 62 of the Indian Contract Act explicitly says that novation of agreement rescinds the original agreement and parties are not bound to perform the original agreement. 

Also read: What to do when builder does not give possession of flat?

The proposed flat is far from the city and you don’t want to take possession of that flat. Hence, you should refuse the builder’s offer to take possession and claim a refund of money with interest. When the builder has offered to take possession of a flat in different apartment he has shown his intention to rescind the agreement to sell. Now you have accrued a right to cancel the agreement to sell.

Builder has breached the agreement hence, he is liable to compensate. The compensation shall be to the extent of financial loss you have suffered due to cancellation of agreement. You can also claim interest upon the money you have paid to the builder and litigation expenses. 

Flat buyer can also claim refund of money under RERA

Builder cannot offer to take possession of the flat in another apartment because he cannot deliver the agreed flat within time. Section 18 of the RERA empowers the flat buyer to claim refund of money from the builder or promoter if he fails to give possession of the flat within time. Each agreement to sell or allotment letters has a time period. The builder is bound to deliver the possession of the flat within that time.

Also read: How the flat buyer can claim refund from the builder

In your case, the construction is still in progress. Builder has promised to deliver the possession in 2018. The time is the essence of agreement therefore, the builder has to obey it. He has not followed the time period hence, you can claim refund of money under section 18 RERA with interest thereupon. Builder cannot absolve his responsibility by giving possession in another apartment.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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