Greetings of the day! This is Ravi Kumar, Professor of Electrical Engineering in Punjab.
A builder based in Patna had borrowed Rs. 30 Lakhs (In August 2013) from my father (65 years old)who resides in Jharkhand. Initially, the borrowing was for one month after which registry of a couple of flats was promised. However, the builder claimed to be in financial crisis and did not return a single penny nor got the apartment completed. In June 2014 he signed an agreement stating either to pay the money back with interest or hand over equivalent amount of property by December 2014. The builder is still evasive and I want to take legal action but my father is reluctant and says the agreement is valid for three years. Kindly advice whether it would be right to wait a bit more and negotiate the way out. Furthermore, can we pursue the case from Punjab (where I am currently residing) somehow since it would make us safe for our family to avoid retaliation from the builder (This is quite rampant in Bihar and Jharkhand). Our main hesitation is due to the fear of retaliation to be honest.
Asked in Civil Law from Patiala, Punjab
1) it is necessary to peruse agreement to advice
2) since you are staying in Punjab and money was advanced from Punjab you can take legal proceedings from Punjab .
3) if under the agreement it is provided that in event of disputes jurisdiction would be at Patna legal proceedings will have to be taken in Patna only .
4) from facts it appears that builder has neither refunded money nor handed over flats By December 2014
5) issue legal notice to refund money with interest as per contract .
6) file summary suit under order XXXVII of CPC for recovery of money
1. Since an agreement was entered into between your father and the builder your legal rights would largely flow out of the agreement itself. As such, without perusal of the agreement it is not possible to opine what exactly can be done by your father.
2. It seems that your father had paid an advance amount to builder and booked a flat for himself which has not been delivered. Did he enter into a sale agreement with the builder? Has the agreement been registered? If yes, where has it been registered? Your father can recover his money from the builder by filing a case for recovery, but the nature and magnitude of the legal remedy which can pursue will be subject to the answers to the above questions.
3. The place of filing the case cannot be chosen by any one. The case has to be filed only in that court in which it can be filed according to the law. If you face any threat to your life or liberty during the progress of the case then you may apply for transfer apart from seeking the necessary protection from the court.
1) It would help to form a clear opinion regarding the course of action to be taken in terms of taking legal action only on perusal of the Agreement entered into between your father and the builder.In any case there has been a breach of the Agreement on the part of the builder as far as discharging his part of the contract and therefore your father has every right to seek remedy in law.
2) It is pertinent to know whether the 30 lacs lent was an advance towards purchase of flat/s and if there was a registered Agreement in place that detailed the terms and conditions. It is also important to know the nature of the Agreement entered into in 2014. An explanation to these circumstances will help determine the legal action to be taken and the time.
3) As the builder seems evasive , it would not serve any purpose to wait long. Negotiations and out of court settlements are always the best as they besides saving money will also save substantial amount of time.I would recommend that you send a legal notice to the builder demanding the refund or specific performance of the contract. If that leads to a negotiated solution, it would save you a long court battle.
4) For fear of retaliation you can not afford to lose such substantial amount of money lent.You can seek protection from the court if you fear so. You can send a notice from Punjab, however the the court that can entertain the petition is the one under whose jurisdiction the transaction occurred.
1. The Agreement entered into by and between your faher and the builder is required to bee perused for giving proper advice,
2. The loan was given by your father at Patna. So, the cause of action arose at Patna. Your father shall have to file the case at Patna and not at Punjab,
3. You shall have to decide whether you shall file the suit now or wait to reconcile with the builder depending on the ground reality which we won't be able to assess,
4. Your father can also get an agreement for sale executed by the builder for sale of flats wherein the said amount can be shown as advance amount paid,
5. This will help in to file complaint case before Consumer forum where you will get justice quickly.
The recovery of money is depend on the terms and conditions of the agreement.
you may first send a legal notice if the time has been completed as per agreement otherwise you have to wait till the completion of agreement's time.
state detail facts of the agreements to get best advise.
if there is no clause regarding the jurisdiction and any part of transaction is from Punjab then you may file a civil suit for recovery from punjab otherwise not.
Advocate, New Delhi