Consumer Connect: 'Mortgage Of Flats By Builder After Sale Agreement Not Valid'

Consumer Connect: 'Mortgage Of Flats By Builder After Sale Agreement Not Valid'

The questions are answered by Adv. Shirish V. Deshpande, Chairman – Mumbai Grahak Panchayat.

FPJ News ServiceUpdated: Monday, February 05, 2024, 05:45 PM IST
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I had purchased a flat from someone who had bought it from the developer. Now an asset restructuring company has issued notice to the developer under SARFAESI Act for recovery of an out-standing loan. This loan was obtained by the developer by mortgaging a few flats in our building, including mine, about which there was no disclosure from the developer in his agreements for sale. This notice has been pasted on my flat and has caused considerable distress. Failure of the developer to repay the loan may lead to auction of the flats. Can I take any legal action against the developer although I have not purchased my flat from him? Do I approach MahaRERA or the consumer forum?

Alka Prasade,Thane

Since you did not purchase flat directly from the developer you cannot be said to have hired his services. Hence you cannot approach a consumer forum. However, the definition of ‘allottee’ under RERA is quite interesting. It says an ‘allottee’ means a person to whom the plot, apartment or building has been allotted, sold, and includes the person who subsequently acquires the said allotment through sale, transfer.Thus, under RERA you are an allottee.If the developer has created a mortgage after executing the agreement for sale, then notwithstanding anything contained in any other law, it will not affect the right and interest of the allottee. In case the develop-er fails to repay the loan you may file a complaint in MahaRERA against him for compensation. In case he has created the mortgage before executing the agreement, he ought to have disclosed the same. Nondisclosure of the mortgage amounts to suppression of material fact. You can lodge a police complaint for cheating, to be on the safer side.

I had booked a 2 BHK flat of carpet area of 69.67 square meters (750 square feet) in December 2018 at Rs 24,000 per square feet. I got possession in December 2023. Since I had some doubts, I insisted on measurement of my flat area in the presence of my architect. As per the joint measurements taken, there is area shortfall of 15sqft. I therefore asked the builder to refund me Rs 3,60,000 (15 sq ft x Rs 24,000). However, he is refusing. Please advise what I should do.

Nishita Raje, Powai

Since your agreement with the builder is after RERA has come into effect, it must be having a clause that deals with variation in carpet area of the flat. According to this clause the builder is required to con-firm the final carpet area after the construction of the building is complete and occupancy certificate is granted by furnishing details of changes, if any, in the car-pet area, subject to a variation cap of 3 per cent.The total price payable for the carpet area shall be recalculated and if there is any reduction in the carpet area, then the builder shall refund the excess money within 45 days and that too with interest at the rate prescribed under RERA rules.You should therefore de-mand not only refund ofRs3,60,000 but also RERA interest thereon. If the builder refuses, you mayfile a complaint against himin MahaRERA. For details of how to file an online com-plaint at MahaRERA, you may visit the MahaRERA website.

(Advocate Shirish Deshpande is the chairman of the Mumbai Grahak Panchayat.You may send your queries to him onshirish50@yahoo.com)

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