Thursday, 17 May 2018

Beware of Omkar Alta Monte's unfair terms & conditions!

Mumbai, 17th May, 2018: When you pay a token of Rs 5 lakh and fill up an application form for booking a flat in Omkar Alta Monte (situated on Western Express Highway, Malad East), you enter into contract with Omkar builders, right? Right, because you are bound by the contract as soon as your money goes into their bank account. If you cancel the transaction, whatever you paid will be forfeited. As much as Rs 30 to 60 lakh is the token or "application fee" for a 3BHK costing Rs 3 crore, and you can lose all that money if you try to cancel the transaction. 

It seems reasonable to expect that Omkar builders are also bound by the same contract to sell the flat to you, right? Wrong, because Omkar Realtors are NOT contractually bound to sell you the specified flat, or any flat for that matter. They can reject your booking even two months after you paid the initial token amount. Omkar does not have to give you any reasons for rejection, and you have no right to ask. Adding insult to injury, Omkar is not required to return your money -- Rs 30 to 60 lakhs -- immediately. They may return it one month afterwards, causing you much anxiety, and interest loss of Rs 20K to 40K.

This is exactly how Omkar Alta Monte's application form clearly says they will deal with you. You might as well be signing a document that says, "Kick me and exploit me; I have given you consent." Beyond a shadow of doubt, it is an unfair trade practice, and any straight-headed lawyer can confirm this.

Click here to download and read the application for Omkar Alta Monte: https://bit.ly/2rMvfCO

Pay attention to the parts underlined in red. See how it enables the builder to exploit you!

The onerous terms & conditions imposed by Omkar builders.


Such an application form enables the builder to make lakhs and crores of rupees every month through forfeited tokens and interest earned by late return of tokens! Am I saying with certainty that Omkar builders are actually doing this to make a lot of money? Unless and until some exploited victims share their stories with me, supported with documentary evidence, I can't say this with certainty. But I have reason to believe that this is happening. Sipping cool drinks in the five-star grandeur of the sales office, overawed by the snooty suited-booted smooth-talking staff, flat-buyers struggle to hide the fact that they are afraid of being judged and found inferior.

Most people who fill up the application form and pay a big cheque do so without asking the right questions.

But I asked questions, to which there were no answers! This was my first email to Omkar:

From: Krishnaraj Rao <krish.kkphoto@gmail.com>
Date: Mon, May 7, 2018 at 1:31 PM
Subject: Queries on Omkar Terms & Conditions Re: Thank You For Your Enquiry-AltaMonte
To: OMKAR <sales@omkar.com>, Omkar Senior Manager Channel Sales <sudip.dey@omkar.com>, Omkar Senior Manager Sales <sunny.soni@omkar.com>, Omkar Legal <ashish.joshi@omkar.com>

Dear Sudip,
As earlier discussed, I am placing my queries and doubts regarding the terms & conditions before you i.e. sales team, legal team and senior management if necessary. I will be happy to meet with your legal team and discuss these concerns in detail.
Having visited your site office, discussed with you, and read your application form and terms and conditions with care, I am worried by the legal and practical implications of the terms and conditions, which will be applicable to me if I sign the dotted line.
The terms and conditions referred to in this email are attached. They are a snapshot from your application letter, given to me at the site office.
My main issues are in bold red type:

The meaning of point no. 1, as I understand it, is as follows: Even after paying booking amount of 10% during special offer period upto 15th May, or 20% outside this scheme period (as per construction-linked schedule given to me) prior to registration of the agreement, I will have no claim whatsoever on the flat for which I apply in the same application form. Even after realization of this amount by you, I will still have no claim on the said flat until the sale agreement is registered. I am bound after giving the token, but you are still free, and this is my issue no. 1. 
Point no. 2 stipulates that after paying the initial token amount (say Rs 10 lakhs), the balance of the booking amount (i.e. 10 to 20% of consideration value of approx Rs 3 cr for 3 BHK -- an amount of Rs 30 to 60 lakhs) has to be paid with X number of days. For the sake of discussion, let us assume that the time mentioned in the application form is 30 days. Let us suppose I pay a token of Rs 10 lakh of 20th May, and and pay a further Rs 50 lakh by bank transfer on 20th June. In an ideal scenario, this means that you should be entering into registered agreement with me on 21st June. However, instead of casting this duty on you, your point 4 states that you can write a letter to me on 21st July saying that my application is rejected. 

Point no. 3 states that Omkar i.e. Era Realtors Pvt Ltd, can reject my application form without assigning any reasons for such rejection.
And Point no. 4 states that my application can be rejected upto 30 days after my second payment, and my money will be refunded to me a further 30 days after that i.e. 20th August. But why? If you are rejecting my application, why aren't you duty-bound to refund my amount on the same day, along with the intimation of rejection? What is the legal, moral and financial justification for holding on to my money -- Rs 30 to 60 lakhs -- for one full month even after rejecting my application, and that too without assigning any reasons? Can you imagine how much mental harassment it will cause to any innocent flat-buyer? Harassment is my issue no. 2.

I think the implication is (in a hypothetical scenario), that if some other buyer books the exact same flat for a higher consideration amount 29 days after my payment , he can be allotted the same flat, and my application can be rejected by you on the 30th day. And to make matters worse, I may be compelled and pressured by you to accept another inferior flat at the same price because you will not refund my money till another 30 days i.e. 20th August. Element of compulsion and pressure is my issue no. 3.
Under such conditions, why should I pay you a token of lakhs of rupees on 20th May, and further booking amount on 20th June, and get locked up till at least 20th August, with zero commitments from your side? Why do you have such an unfair and unequal relationship between a buyer who pays lakhs of rupees to you, and commits to pay crores of rupees?  The inequality between two contractual parties (builder and buyer), and unfair distribution of power by this contract, is my issue no. 4.

In such a scenario, I would suffer a minimum interest loss of Rs 40K. From a commercial point of view, how does this make any sense? Financial loss is my issue no. 5.
Your point no. 5 says that right and title to the purchased flat will accrue only after registration of agreement. But clauses 1 to 4 imply that registration of agreement may not happen for at least two months after payment of token, and buyer cannot ask for registration as a right till then. Terms and conditions have no time-bound clause for registering the agreement in a time-bound way, and this is my issue no. 6.

Your point no. 7 states that application fees or 10% of consideration, whichever is higher, will stand forfeited if the buyer cancels the application. "Whichever is higher" means that if I have paid 20% i.e. Rs 60 lakh prior to registration as per your construction-linked schedule, then that amount will be forfeited. "Whichever is higher" is my issue no 7, because it means that the forfeited amount can be even more than 10% of consideration.
I have another issue with this clause. On the one hand, you are saying that filling up this application form (and of course paying the booking amount/application fee) does not confer any rights, title and interests, that the deal between us is concluded, and you have no compulsion to sell me the flat that I applied for. In other words, it is just a piece of paper. On the other hand, you want to forfeit my 10% for cancelling the application, as if I am cancelling the whole deal. If the application is only a piece of paper conferring no rights and title on me, why should I have to forfeit any amount for cancelling it? This logical inconsistency is my issue no. 8.

Please don't tell me that every builder does this, because I am not getting a transaction with every builder. Also don't tell me that every other buyer has signed it, because I am not answerable for the general public's lack of financial/legal literacy and commonsense.

As discussed at your site office, I am seriously considering buying a 3BHK from you specifically, and I don't want to accept any unfair terms and conditions from you. So, I want you guys to suitably amend the terms and conditions of the application form for me, and send me the amended application form for my signature.
I am happy to discuss and debate with your legal team or senior management, if necessary.
Eagerly awaiting your revert.

Yours sincerely,
Krishnaraj Rao
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Another issue: Omkar blindfolds home-buyers with Sale Agreement!

Omkar has many hidden land-related legal issues. Omkar Alta Monte is a hugely flawed Slum Rehabilitation project. Omkar's declaration on RERA website is a mixture of half-truths and non-disclosures. The proforma Agreement for Sale uploaded on MahaRERA website makes you voluntarily wear a blindfold. By signing this agreement, you forfeit your right to ask for the documents that enable you to make an informed purchase decision. Omkar's agreement can be summed up as, "Ask me no questions, and I will tell you no lies. Give me the money, take your flat and keep quiet!"

Download and read Omkar's proforma Agreement for Sale:  https://bit.ly/2jWqW47
.
So this was my second email to Omkar:
From: Krishnaraj Rao <krish.kkphoto@gmail.com>
Date: Tue, May 8, 2018 at 1:52 AM
Subject: Queries on proforma Agreement for Sale
To: OMKAR <sales@omkar.com>, Omkar Senior Manager Channel Sales <sudip.dey@omkar.com>, Omkar Senior Manager Sales <sunny.soni@omkar.com>, Omkar Legal <ashish.joshi@omkar.com>

Dear Sudip, Sunny & Ashish,

Further to my email yesterday, I found out just now that the proforma Agreement for Sale raises some red flags.

Point IV on page 11 says, " IV. Further, the Allotee/s has/have been informed and acknowledge(s) that the FSI proposed to be consumed in the construction of the Building/s or wings/s of the said Project may not be proportionate to the area of the physical Land on which it is being utilized for construction and/or in proportion to the total area of the Land taking into account the FSI to be utilized for all buildings to be constructed thereon. The Promoter in its sole discretion, may allocate such buildable FSI for each of the buildings being constructed on the Land/individual segment/phase as it thinks fit and the Purchaser(s)/Allottee(s) of the premises in such buildings (including the Allottee/s) have understood the manner of consumption of the FSI as set out herein and agree not to raise any claim or dispute thereof."

What I understand from this point is that Fungible FSI of the rehab component has been used (or is intended to be used) for sale component, and this has been done with the signed consent of the Rehab component allottees. Is my understanding correct? Please clarify this.

Paragraph (w) on page 14 says, "(w) The Purchaser(s)/Allottee(s) has inspected the following:-" and it gives a  list of 27 documents. 

Paragraph (dd) on page no. 17 says: "The Purchaser(s)/Allottee(s) has, prior to the date hereof, examined copies of all the aforesaid documents, plans, title certificate and has caused the same to be examined in detail by his/her/its Advocates and Planning and Architectural consultants. The Purchaser(s) /Allottee(s) has agreed and consented to the development of the entire project on the said Larger Land/Property;

Paragraph (jj) on page no. 19 says: "The Purchaser(s)/Allottee(s) agree/s that the size of the said Flat shall be as per the plans approved by Slum Rehabilitation Authority or concerned statutory authority which are already inspected by the Purchaser(s)/Allottee(s) and have completely satisfied himself / herself / themselves in respect thereof;"

When and where will you give me inspection of these above-mentioned documents? Can I inspect them at the site-office tomorrow, please? And will you provide me copies for showing them to my advocate and architect?

Eagerly awaiting your revert.

Warm Regards,
krish

-------------------------------------------
These emails were acknowledged by the Vice President Sales, who promised to give a detailed reply in 3 working days.
On Tue, 8 May 2018, 18:55 Ram Rajan, <ram.rajan@omkar.com> wrote:
Dear sir,

We have received your queries, kindly allow us 3 working days time to reply back on your queries.

We also acknowledge your initial token amount for unit no-B-1610, and the same would be deposited post clarifying mutually agreeing on your below mentioned queries.

Regards,

Ram 
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After much follow-up, Sunny Soni (Vice President Sales), arranged a conference call with GM Legal Hetal Savla on 15 May, 2018.

In the course of our call, Hetal tried to justify these practices in terms of possible difficulties and losses faced by Omkar in case of a cancellation from the customer's side, but she did not offer any legal justifications for the one-sided contract.

She said that I could not be allowed to see the documents mentioned in the Proforma Agreement until realization of my cheque -- and maybe not even then. She said that the documents were confidential, although the Proforma Agreement says that I must read them and show them to an advocate or architect before signing the agreement. "It is a matter of company policy," she said, and that I could take it or leave it.


Click here to listen to my conversation with Omkar's GM Legal: https://bit.ly/2KrywPF

After giving Omkar ample opportunities to address my concerns, I have decided to go public with this, to warn flat-buyers to be careful before signing Omkar's application form and registered agreement. People who have already fallen victims to Omkar after signing are invited to call me or email me with details. Those who feel that Omkar's business practices are justified or necessary are also invited to call me and discuss openly.

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

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