Protective Laws @ Purchasing Immoveable Assets

Purchasing Home and especially in a Complex is nothing short of a nightmare and there are hardly any Developers or I can say there are no Developers who have given 100 percent correct details about the proposed home and their Brochure is just an advertising kit to advertise but it just remains in the Brochure. One of the best example of how brochure advertising just a way to promote and sell the flats is of at Palava where their brochure said Cricket Ground and School of sizes mention but by the time the building was completed all was changed and left with the proposed home buyer is to fight and fight in the Courts and Forum and Developers used this Legal fight as the way to delay the time. However, times are changing with post RERA but there also in RERA there are loopholes where the builders are just manipulating the facts and are selling their flats which have the completion years of more than 4 years. There is no doubt that due to an increase in technology, the buyers form the Whatsapp group and develop a unity in fighting the case against the Developers united and this gives a strong hand against the Developers. However, there are times where the unity is not there and this is aware most of them find it difficult to know their rights against the Developers. In this article, I am stating the remedies, in brief, to make them aware:

Remedies against the Developers are there under the following laws:

1. Real Estate Regulation Act, 2016 (popularly called as “RERA”)
2. Consumer Protection Act, 1986 (as amended)
3. Insolvency and Bankruptcy Code, 2016 (as amended)
4. Arbitration & Conciliation Act, 1996 (as amended)
5. Civil and Criminal Remedy
6. Competition Commission of India

Remedy under Consumer Protection Act, 1986:

The best legislation for any home buyer prior to RERA, IBC, and Arbitration was Consumer Protection Act and in fact, this Forum has been used extensively and also more successfully against the Builders for their negligence and unfair trade activities and also at times the Forum has come strongly against the Unilateral Terms of Builder in the agreement which are being signed at the time of selling the immovable property. Please note that under this the person filing shall fit the criteria of being called Consumer and here I will suggest before filing any Consumer Case, to ensure of being fitting under the Consumer to avoid any bad result against you. This legislation has done a lot in favor of buyers and against bad developers but somewhat has failed to provide the justice on time and also the penalty and damages are not easy to recover and in fact, the Execution of Decree under Laws of India is just not only complex but seems not good at all as this Decree Execution itself becomes a fresh case and hence the time has come to change the provisions pertaining to the Execution of Decree and I am of the firm view that posts Decree, the matter shall be taken as Criminal and no appeal shall be taken on ex-parte proceedings. One has to understand the meaning of Consumer, Deficiency of Service, Unfair Trade practice and in fact the new amendment has been made to the Consumer Protection Act whereby many great changes have been made and also the Monetary Jurisdiction have been made but sadly the Forum are not well equipped to handle such high-value matters and hence there is no doubt that all matters will go as appeal as in India under Laws of India, the appeal is nothing but delay tactics by big builders and thereby trying best to keep money pressure and thereby reduce their payment claims to a minimum which is the most negative part of any remedial laws in India. Just for information, under the Consumer Protection Act, there are three Forums, District Forum, State Commission and National Consumer Dispute Redressal Commission

The Laws and provisions for filing are simple but it is always better to have Legal assistance as even in Consumer Court, the interpretations come in drafting and argument and hence the whole purpose of stating that a complaint person can appear for himself without an advocate is of no use as if so, then no law or professional background be called for against another party for fair battle.

Needless to say, this Act is a good act and in fact, is rated high for good judgment over the years and still in force and the mode and manner are simple.

Remedy under Real Estate Regulation Act, 2016 (popularly called as “RERA”)

RERA is considered as one of the specialized legislation passed by the Indian Parliament taking care of the Real Estate Sector and RERA imposes the Builders to ensure the objective of transparency and accountability and ensure safe interest for the Home Buyers. RERA is nice legislation and in fact, this as on date is the best legislation for a fair trial and this holds good for upholding the doctrine of Let the Seller beware rather than Buyer beware. The biggest achievement of RERA is having one portal for all Builders and time essence which has made many builders ensure of able to run the business but at the same time have also created a monopoly for the limited developers which are surely not good and hence here comes the CCI Act which has a good say. The negative point which I feel is that most of the Brochure does not contain the RERA number and assuming it contains, getting the details online is difficult as there is a mandate to put all the details rather than a number and hence RERA has to change the same. Coming to the RERA Act, provides for the penal provision which may extend up to 5% of the estimated cost of the building project as determined by the concerned RERA Authority. RERA ensures of completion of building projects in time else if delayed then the Builder has to bear strict penalties and damages. RERA has made the assurance to buyers of knowing by when the property will be delivered as the legal provisions are there to back-up against the Builder if failed on time. As per the intention and provisions of RERA, Builder is mandated to keep 70% of the money collected from the buyers in a separate Escrow Account to meet the construction cost of the project and this ensures a deterrent to the builder to complete the project in time.

Remedy under Insolvency and Bankruptcy Code:

Indian Laws can be said as “prior to IBC” and “post IBC” and the reasons being is that IBC Legislation has brought a whole lot of changes the way laws used to be and in fact, the IBC provisions are so stringent that the deficiency in other laws i.e., of trials, delayed justice, etc has been covered and due to its faster process and stringent, it has almost become the first choice for any aggrieved party to approach IBC, subject to certain passing of criteria to fall the case under IBC. The popular name given to IBC is NCLT (National Company Law Tribunal). There is no doubt that IBC has become a nightmare for unscrupulous builders and a boon for the Home Buyers. IBC provides recognition to Home-Buyers as Financial Creditors and has been recognized to initiate the Corporate Insolvency Resolution Process (CIRP) against the Builder under the provisions of IBC.

Remedy under Arbitration & Conciliation Act, 1996

I have always likened the Arbitration & Conciliation Act, 1996 and in fact I prefer Indian Government make all disputes to be resolved by and under the provisions of Arbitration & Conciliation Act, 1996 as this Arbitration & Conciliation Act, 1996 has such a faster provisions and time limit provisions for the closure of any dispute and in fact provisions of Arbitration & Conciliation Act, 1996 has been taken from the UNICTRAL which is international norms. Most of the buyers are not aware that nowadays the Agreement contains the clause of referring the matter to Arbitration and hence if possible choose the Arbitration tribunal to resolve your matter. Please note that the Consumer Remedy and Arbitration Remedy can go hand-in-hand. However, due to the enactment of IBC, there is little doubt of any aggrieved party going to Arbitration or Consumer as IBC has achieved a good name for a faster process and stringent orders.

The remedy under Competition Commission Of India

Under the provisions of Companies Act, 2002, if the Builder is in a Dominant Position and is misusing then this Law comes into the picture. As stated in above paras, that if any monopoly is created or group of Builders is trying to enter into any engagement which may give rise to the single market price, then one can file a complaint before CCI against the builder for the abuse of the dominant position and if found guilty of any anti-competitive practice, huge penalties may be given by CCI.

Remedy under Civil Case for Recovery of Money under the Civil Procedure Code (CPC):

CPC has always been the procedural code for recovery of money and the aggrieved party can file. However, I always suggest trying this method last as to get the result in this remedy is just not less than depression. You have to take the help of the Lawyer to get this remedy due to its lengthy procedure. I always prefer avoiding this method.

Remedy under Indian Penal Code r/w Cr. P C

Aggrieved Party can avail this remedy for Cheating, Fraud, etc if the Builder has done and this comes under Indian Penal Code, 1860. A Buyer can file a criminal case as a private complaint or can lodge FIR