• Flat sold by builder to third party whem my Agreement to sale was valid

I had executed a Agreement to sale on one flat at Agra U.P. in 02/11/2012 with a validity of 15 months ,after 15 months the builder with mutual consent and reason that the the construction work is not over renewed it for another 12 months upto  28/01/2015,again with the same reason it sought and extension of another 6 months of agreement to sale which was made and agreement to sale was extended upto 22/07/2015.
After this we issued a notice to the builder and on reply to notice the builder through its legal counsel sought again time upto 15/10/2015.Subsequently again a notice was given on 17/10/2015 to execute the sale deed but the builder again replied by letter and sought extension upto 15/07/2016 with the same reason that flats are incomplete.After 15/10/2016 the builder is untraceable and recently he was arrested on forgery charges and currently in jail.On enquiry I came to know that the builder sold my flat that was having valid agreement to sale to third party with sale deed dated  28/06/2014.During this period my agreement to sale was valid but now builder is in jail what is the legal remedy and the party having sale deed has occupied the flat .now what is the legal remedy me to get my flat back.
Asked 3 years ago in Property Law
Religion: Hindu

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11 Answers

Is agreement for sale duly stamped and registered

2) was subsequent agreement registered?

3) file police complaint of cheating , criminal breach of trust against builder under section 406,420 of IPC

4) file complaint against builder before consumer forum and seek orders to direct builder to provide alternative flat to you

5) seek compensation for mental torture undergone by you

6) also seek litigation costs from builder

Ajay Sethi
Advocate, Mumbai
82702 Answers
5254 Consultations

5.0 on 5.0

Section 53A in The Transfer of Property Act, 1882

1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]

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Section 52 in The Transfer of Property Act, 1882

52. Transfer of property pending suit relating thereto.—During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. 7[Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]

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Section 53A in The Transfer of Property Act, 1882

1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]

Kishan Dutt Kalaskar
Advocate, Bangalore
5897 Answers
297 Consultations

4.8 on 5.0

Your cause of action is against the builder

2) if your earlier agreement for sale is not registered And subsequent sale deed in favour of third party is registered the sale deed would not be set aside by court

3) no case is maintainable against registering authorities

Ajay Sethi
Advocate, Mumbai
82702 Answers
5254 Consultations

5.0 on 5.0

1) Now can make complaints against builder in consumer forum plus fraud and misrepresentation in the court.

2) while making case against builder you have to make party for the third party as well for possession of the flat.

3) Check the RERA rules as well or ask builder to give another vacate flat to you.

Ganesh Kadam
Advocate, Pune
12084 Answers
136 Consultations

4.9 on 5.0

You have the point that 2% of registration charges you have paid the fraud is done by builder and not by you or third party, but the builder had given flat possession to third party and for that one flat twice stamp duty has been paid. So you can recover this amount for builder as well and ask for new flat possession as early as possible.

Ganesh Kadam
Advocate, Pune
12084 Answers
136 Consultations

4.9 on 5.0

if your agreement for sale is duly stamped and registered then the subsequent sale by builder to third party is illegal

2) you can file civil suit to set aside subsequent sale and seek possession of the flat

3) make both builder and purchaser parties to the suit

4) seek appointment of court receiver for the flat pending hearing and final disposal of the suit

Ajay Sethi
Advocate, Mumbai
82702 Answers
5254 Consultations

5.0 on 5.0

The 2014 sale is illegal having been transacted at a time when the agreement to sale in between you and the builder was in option.

Lodge a FIR against the builder for cheating you.

Approach the Civil Court and file a civil suit as well.

Contact a local lawyer.

Vibhanshu Srivastava
Advocate, New Delhi
9299 Answers
193 Consultations

5.0 on 5.0

Hello,

If you want the possession then File a suit for cancellation of the sale deed by making the company of the builder a party and also the person to whom the plot has been sold a party to the suit.

If you want the compensation then file a case in the consumer forum, if the builder is in company then the authorized representative will represent the case before the consumer forum.

regards

Anilesh Tewari
Advocate, New Delhi
17868 Answers
325 Consultations

5.0 on 5.0

You have to file a suit for specific performance of contract against the builder and the subsequent purchaser may be impleaded as party to the suit along with the builder.

As an alternate prayer you can seek the refund of booking amount with interest from the beginning.

T Kalaiselvan
Advocate, Vellore
72788 Answers
1111 Consultations

5.0 on 5.0

Since you already had an agreement to sale with the contractor, the contractor was legally bound not to sale the said flat to the 3rd party, thus the sale deed of 3rd party is invalid.

You can file a case either to get the amount you paid for flat with compensation or you can ask for a flat which the contractor has in his possession. As the contractor is in jail, his legal representative will be responsible on his behalf.

Also what the default clause in your agreement to sale? Please contact for more information

Raj Deepak Chaudhary
Advocate, Lucknow
12 Answers

4.0 on 5.0

Hi,

You may file civil as well as criminal cases against the builder.

Ganesh Singh
Advocate, New Delhi
6616 Answers
14 Consultations

4.5 on 5.0

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