Despite MahaRERA, Buyers of Bhagtani Builder are struggling to recover money

Mumbai, 18th August, 2017: Thousands of flat-purchasers are trapped like fishes caught in a net by Bhagtani builders and their companies including Jaycee Construction Co, Jaycee Homes Pvt. Ltd, and and JVPD Properties Pvt Ltd. People who booked flats in Bhagtani Sapphire (Dahisar East), Bhagtani Serenity and Bhagtani Krishaang (Powai), Bhagtani Riyo (Mira Road), Bhagtani Savannah (Kanjurmarg East) and Executive (Ghatkopar West) are now regretting their decision, because they are being systematically cheated and exploited. Diipesh and Mukesh Bhagtani are cheating gullible purchasers – many of whom work abroad and therefore unaware of the pitfalls of Indian property market. The 20-odd real estate companies belonging to the Bhagtani family are located at 501, 5th Floor, Prime Plaza, Next to Asha Parekh Hospital, S V Road, Santacruz West. Employees of these companies are knowingly or unknowingly part of an organized crime disguised as legitimate building activity.



Click here to see video of investors demonstrating outside project site of Bhagtani Sapphire, Dahisar East.

Click here to see video of investors confronting builder Mukesh Bhagtani outside his residence.

Below, we tell you the story of one investor.

STORY OF INVESTORS WHO BOOKED FLATS IN BHAGTANI SAPPHIRE, DAHISAR:

1. Payment and booking. On 9^th November, 2012, Deepak Chopra* (name changed to protect identity) booked a flat in Bhagtani Sapphire by paying Rs 21 lakhs approx -- roughly 30% of the total consideration of Rs 70 lakhs. (According to MOFA section 4, the builder must enter into registered agreement for sale after accepting 20% advance.) Deepak's brothers also booked flats in Sapphire.
   
   
2. Receipt and Allotment Letter. On 25th April, 2013, Jaycee Construction Co issued receipts and a letter of "Provisional Allotment" dated 3^rd October 2012. As the allotment letter was given many months after the huge advance payment, the buyer could not reject the discriminatory clauses which give escape routes to the builder while binding the buyer to a very unfair deal!
   
   
3. No progress on project, so buyers decide to cancel. In December 2015, seeing no progress in the project, Deepak and his brothers decided to cancel their booking and take refund. However, the Bhagtanis did not respond to any communications.
   
   
4. Police complaint. After filing a complaint to police higher-ups in June 2016, and recording his official statement at Santacruz Police Station, Deepak received a call from JayCee Homes for discussion. 
   
   
5. Builder agreed to cancel booking, refund amount with interest. On 11th July 2016, Dipesh Bhagtani agreed for cancellation, on the condition that interest would be paid only till July 2016, although the payment would be made by post-dated cheques between November 2016 and January 2017.
   
   
6. Builder took back original allotment letter and payment receipts, took signatures on cancellation documents, and gave post-dated cheques. On 25th July’16, Deepak and his brothers visited Jaycee Homes office for cancellation, returned the original copy of allotment letter and payment receipts. They were given current-dated cheques towards refund of Service Tax amounts paid by them (Rs.62,882/- + Rs. 38794/- + Rs. 39,978/-), five cheques post-dated for November 2016 and 17 cheques dated for January 2017. Copies of the documents that they had signed for cancellation were not given.
   
   
7. Post-dated cheques started bouncing. Cheques towards Service Tax were cleared in July. In November 2016, three cheques of Rs. 6.78 lakhs bounced due to insufficient funds. Deepak was called to return the bounced cheques and take fresh cheques dated January 2017, but he refused. On 25^th November, he re-presented all three cheques, after informing JayCee Homes through email. This time, the bank informed him that they had received instructions to stop payment. Deepak  met Dipesh Bhagtani at his office the same day, who insisted on making payment in January 2017, but Deepak insisted on immediate payment. Deepak deposited the remaining two cheques of Rs. 5.21 lakhs each, and the bank returned them, stating that issuer had given stop payment instructions. 
   
   
8. All cheques bounced. None of the 23 post-dated cheques given to Deepak Chopra and his brothers were  cleared. So they initiated cheque-bouncing proceedings under the the Negotiable Instruments Act 1881, as well as other criminal proceedings for cheating etc.

The Allotment Letter itself shows the builder's ill intentions to exploit the financial illiterary of Indian investors.

Click here to read the Allotment Letter. Focus on the underlined words and sentences that we have analysed below.

FRAUDULENT CLAUSES IN ALLOTMENT LETTER:

a) "Provisional Allotment". The allotment of flat no. 231 in Bhagtani Sapphire to  Deepak Chopra is "provisional", meaning it is not binding on the builder. Ask yourself: If the flat allotment is provisional, then how can commitment to pay be binding on the buyer?

b) "You have expressed your desire to acquire from us..." This implies that the builder is doing the buyer a favour by selling the flat, and so they are not equal parties in this contract.

c) "Schedule of Payment: On execution of this allotment – Rs 20,35,000/-" This implies that the buyer made the payment at the same time or after getting the allotment letter, and therefore the buyer voluntarily accepts all the terms mentioned in it. This is contrary to the facts, because the buyer made payment in November 2012, and got the Allotment Letter in April 2013. The allotment letter was thrust upon him; he could not refuse to accept it without endangering the money he had already paid.

d) "... paid on or before issuance of this letter". This half-truth sows confusion. The date on the letter is 3^rd October 2012, whereas it was actually handed over five months later.

e) "... we shall also permit you 1 car parking spaces...". This implies that the builder is doing the flat-owner a favour. The legal position is that car-parking is part-and-parcel of the flat purchased.

f) "... any delay by you in making the aforesaid payments shall make this allotment letter voidable..." "Any delay" means the builder can terrorize the buyer by voiding the contract for even one day's delay.

g) "... we shall be entitled to forfeit the booking amount paid by you in addition thereto further cancellation charges calculated at the rate of 5% of the booking deposit..." This clause enables the builder to terrorize the buyer with the possibility of losing lakhs of rupees.

h) "... we may in our sole discretion instead of treating this allotment void as aforesaid, permit you to pay... after charging interest thereon at 21% per annum". This clause means that the buyer should be extremely grateful if the builder only charges him late-fees instead of forfeiting his booking amount and cancelling the allotment! Builder is king and consumer is beggar!

i) "You have further confirmed that intimation forwarded from us to you... that a particular stage of construction is commenced or completed shall be sufficient proof that such stage is commenced or completed." By accepting this allotment letter, the buyer supposedly agrees to accept the builder's every claim without any right to independently verify it.

j) "..failure of receipt of such notice/intimation from us requiring such payment will not be a plea or an excuse for non-payment..." If the buyer did not receive the builder's notice, the builder will not even have to prove that he sent the notice!

k) "You have inspected the proposed plans, title documents... and you have confirmed that you are fully satisfied... in all respects." This clause forces the buyer to sacrifice his right to seek to verify any paperwork. He is forced to blindly trust every claim of the builder.

l) "We have also disclosed to you that presently, the plans for the construction... are pending for approval and the specifications, size, dimensions and location... is subject to approval of such plans." This means that anything and everything in this project can be changed from the builder's side, including the size and location of your flat, and you have no legal remedies. Even if the entire project fails to materialize, the builder is

m) "You agree to sign all applications, papers and documents, and do all such deeds... that we may require for safeguarding the interest in the said project." Whoa, wait a minute! How can a free citizen of India give an undertaking to sign any papers put before him for safeguarding the interests of the project i.e. the builder's interest? Isn't the buyer supposed to sign documents for safeguarding his own interest?

n) "We shall be entitled to vary and modify the plans..." So the builder is completely free to change all their deliverables, and the buyer is completely tied up to his side of the contract.

o) "It is agreed that you are an investor..." The law does not distinguish between different types of buyers. All buyers – whether they are "investors" or whether they are urgently in need of a house to live in -- have the exact same rights and entitlements under the law, because they are paying the same money. By creating such wrong categories, the builders are loosening their own contractual commitments and diluting the legal consequences of breach of contract.

p) "...interest thereon calculated at the rate of 15% per annum..."As the Bhagtanis don't have any intention to repay the buyers, the high interest rate is just bol-bacchan.

q) "... the amounts paid by you shall be treated as loan till the amount is repaid to you". This means the buyer has no right to ask the builder to repay his dues in any time-frame, he will repay it at his own sweet convenience. Never mind if the buyer is in urgent need of his own money!

r) "... you shall also be liable to pay to us the charges for the betterment and development incurred by us... as applicable at the time of possession." This clause gives the builder complete freedom to demand more money at the time of giving possession.

s) "In the event if you wish to transfer the benefits of this Allotment Letter to any third party... subject to your administrative charges as may be determined by us..." Meaning, the builder can charge lakhs of rupees as transfer fees.

t) "You agree not to claim any right, title or interest... till the entire consideration and other payments payable by you hereinabove set out is paid out in full." Until the builder is ready to give possession, the buyer has no rights, no claims, no title.

u) "This letter is an understanding... which is not covered under MOFA." This is a nonsensical clause that weakens the buyers psychologically, and dilutes their legal rights. The actual fact is, every builder's activities are covered under MOFA and all applicable laws and rules.

v) "Please confirm your acceptance of the aforesaid terms and conditions by signing..." This clauses makes it appear as if the buyer has accepted all the unfair conditions imposed on him. According to law, every contract must be equitable; inequitable terms and conditions cannot be forced on someone. However, signing a letter with such clauses does pose obstacles during court proceedings.

w) Receipt. The receipt is the legally enforceable part of the contract. It states that Bhagtani accepts that Deepak Chopra has paid the sum of Rs 20,97,882/- towards booking flat no. 231 in Bhagtani Sapphire, coming up at Dahisar. So, Jaycee Construction Co is contractually bound to deliver the said flat within the committed time-frame (or a reasonable time-frame) to this buyer. That is the essence of the contractual obligation between the builder and his buyers! Bhagtani's buyers have to plead for this part of the contract to be enforced, that is all. Baki sab bakwaas hai!

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