If you are stuck in such a situation, here is what to do.

Mr. Alok, a young man from the city of Avantika, finds himself in a very challenging position. A few years ago, his parents invested a significant sum of approximately ₹7 lakhs as a down payment for a flat in a project by “Zenith Properties.” Tragically, Mr. Alok lost both his parents in an accident recently. To compound his grief, the real estate project his parents invested in was shelved by the developer.

For nearly two years, Mr. Alok has been pursuing Zenith Properties for a refund. Initially, the builder provided some assurances and even a small partial payment of ₹50,000, but has since become evasive. Now, the builder has adopted a hostile stance, refusing to return the outstanding amount and brazenly telling Mr. Alok to “do whatever you want” and pursue his own “process.” The situation is further complicated by the fact that Mr. Alok cannot locate the original property booking documents, and he is already under financial and emotional strain due to a separate, ongoing legal case related to his father’s accident insurance.

Advice in such cases

Navigating such a situation, especially without primary documents, can be daunting. However, there are clear legal paths available to secure your rightful money.

• Gather All Possible Evidence: Even without the main agreement, you can collect secondary evidence. This includes bank statements showing the transfer of money to the builder, any email correspondence, WhatsApp or SMS chats, and details of the dishonoured cheque.
• Send a Formal Legal Notice: The first formal step is to have a lawyer draft and send a detailed legal notice to the builder. This notice will outline your claim, demand the refund with interest, and state that you will pursue legal action if the payment is not made within a specified period. This often prompts the builder to seek a settlement.
• File a Complaint with RERA: The Real Estate (Regulation and Development) Act, 2016, is a powerful tool for homebuyers. You can file a complaint with your state’s RERA authority seeking a refund of the amount with interest.
• Approach the Consumer Court: A homebuyer is considered a ‘consumer’ under the Consumer Protection Act, 2019. You can file a complaint in the appropriate Consumer Disputes Redressal Commission for ‘deficiency in service’.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Several laws can be invoked in such a scenario to protect your interests:

• The Real Estate (Regulation and Development) Act, 2016 (RERA): Section 18 of RERA is particularly relevant. It mandates that if a promoter fails to complete a project or is unable to give possession of the property, they are liable to return the entire amount received from the allottee with interest as prescribed.
• The Consumer Protection Act, 2019: This Act protects consumers against unfair trade practices and deficiency in services. Failure to provide the promised flat or refund the money constitutes a clear deficiency in service.
• The Bharatiya Nyaya Sanhita, 2023 (BNS): If the builder had a dishonest intention from the very beginning, it may constitute a criminal offense. Provisions related to cheating (Section 318) and criminal breach of trust (Section 316) under the BNS could be applicable.

If you are the complainant

As the person seeking justice, you need to be proactive and systematic in your approach.

• Document Everything: Keep a record of every communication, every visit, and every promise made by the builder. If you have phone conversations, make a note of the date, time, and summary of the discussion immediately after.
• Choose the Right Forum: Based on your lawyer’s advice, decide whether to approach RERA, the Consumer Court, or file a criminal complaint. Sometimes, parallel proceedings can also be initiated.
• Be Prepared for the Process: Legal proceedings take time. Stay patient and follow your lawyer’s guidance closely. Ensure you provide all required information and documentation to support your case.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you find yourself in the unfortunate position of being cheated by a builder, here are the immediate steps to take to protect your rights.

• Cease Verbal Communication: Avoid phone calls or in-person meetings that are not recorded. Insist on all communication being in writing, preferably through email or registered post, to create a paper trail.
• Secure Your Bank Records: Immediately obtain official statements from your bank that show the transfer of funds to the builder’s account. This is a crucial piece of evidence.
• Do Not Accept Partial Payments Without Agreement: If the builder offers a small, partial payment, do not accept it without a written agreement that it is only a part payment and does not settle the full claim.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Often, the police may initially view such cases as purely civil disputes over a breach of contract and may be reluctant to file a First Information Report (FIR). They might advise you to go to court. However, you must emphasize that if the builder’s actions indicate a clear intention to cheat—for instance, taking money for a project that was never intended to be completed—it constitutes a criminal offense under the BNS.

If the local police station refuses to register an FIR, you have the right to approach a senior police officer, such as the Superintendent of Police. If that fails, your lawyer can help you file a complaint directly with the jurisdictional Magistrate under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), who can then order the police to investigate.

FAQs people normally have

Here are some common questions that arise in these situations:

• Can I still file a case if I’ve lost the original booking documents?
  Yes, absolutely. While the original agreement is the primary evidence, its absence is not fatal to your case. You can rely on secondary evidence like bank statements, payment receipts, emails, WhatsApp messages, and even the builder’s partial payment as proof of the transaction.
• Which is a better option: RERA or the Consumer Court?
  Both are effective forums. RERA is a specialized tribunal for real estate matters and is often faster. The Consumer Court has a broader scope. The best forum depends on the specifics of your case, and your lawyer will advise you on the most strategic option.
• What if the builder threatens me for pursuing legal action?
  Any threat or intimidation is a separate criminal offense. You should immediately report it to the police. Do not be deterred by such tactics.

What evidence is required?

To build a strong case, you should gather as much of the following evidence as possible:

• Proof of payment, such as bank statements, cancelled cheques, or online transfer confirmations.
• Any written communication with the builder, including the allotment letter, emails, letters, or WhatsApp chats.
• The builder’s project brochures, advertisements, or any marketing material.
• Details of the cheque that was provided as a partial payment, even if it was honoured.
• If any other buyers from the same project are facing similar issues, their testimony can also be valuable.

How long will the investigation take?

The duration of the legal process can vary significantly depending on the forum you choose and the complexity of the case.

• RERA and Consumer Courts: These bodies are designed for speedier resolution. They are mandated to dispose of cases within 60-90 days, but in practice, it can sometimes take 6 months to a year.
• Criminal Case: A criminal investigation and subsequent trial can be a more lengthy process, potentially taking several years to conclude.
• Legal Notice: Sometimes, a strong legal notice is enough to prompt the builder to settle the matter within a few weeks to avoid litigation.

Advocate Sudhir Rao, Supreme Court of India