• Notarised Purchase and Buy Back MOU

Sir, I bought 6 under construction flats from a Pune based developer/builder by making payment (full consideration RTGS of ₹ 1.1 Cr.) & notorised d MOU. 
In MOU, buy-back after 12 months term was mentioned n ₹ 1.35 Cr PDC were given by d builder.
After d expiry of 12 months period, builder had given request letter for extension and offered fresh PDC with enhanced profit .The same was extended for 4 months, meanwhile,builder had made small amount repayment.
Going forward ,once again he requested for another extension ,which was granted by me after taking extension request letter n enhanced PDC. The builder started avoiding phone calls n personal meetings, I doubted mischief/ cheating ,
 I deposited cheque s in d bank which were dishonoured.

After approaching MC sanctioning authority n other govt.record keeping department, it was found out of 6 flats, 3 were presold flats,(which he had sold to me as per MOU + 2 flats of 5 th floor too were sold to me for which no statutory permission was taken by d builder )

This is how gross cheating was made by d builder, 
I would appreciate your guiding on d following legal remedies :
Relief under ,1) Maha RERA 2) MOFA 3) CPA
Asked 4 years ago in Property Law
Religion: Hindu

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14 Answers

1. You cannot claim relief under rera since you are not allottee but an investor

2. Also suit under Mofa is not tenable since you are not a flat purchaser but an investor

3. You will have to file a summary suit in high court since builder has admitted his liability by giving you PDC

4. For the cheque bounce you can file 138 complaint with magistrate court. But the court fees is 2% of claim amount which is very high

5. So file a summary suit

6. Another option is a commercial suit for recovery of money

7. The Bombay High Court has passed an order on a similar matter in which relief was given to Plaintiff who had also been cheated by a builder by agreeing to allot flats which were already presold prior to the MOU between Plaintiff and builder

8. One more option is to file a complaint with economic offences wing. But the claim for filing such complaint is Rs 3 crores and above. But nevertheless you can file a police complaint against builder for cheating

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

Hello,

You can immediately prefer a complaint before RERA and may also file a FIR against the builder for cheating and fraud.

RERA is the most appropriate remedy for you at this juncture.

Get in touch with a local lawyer.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Since you investor which is not an allottee, investor is considered as copromoter. So you won't get any relief under RERa and MoFA.

https://www.google.co.in/amp/www.dnaindia.com/mumbai/report-investor-isn-t-allotee-just-co-promoter-rera-2553921/amp.

Secondly since the cheque bounce a 138 Negotiatble instrument complaint can be filed after giving a statutory notice to builder.

Further a complaint of cheating and breach of trust can be filed against the builder.

Thirdly there is remedy for you under civil law for recovery of amount from the builder you have to file a smmary recovery suit against the builder.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

since there is no registered agreement for sale RERA would not grant you any reliefs

2) consumer forum would not grant you any reliefs as you are not consumer you bought 6 flats for commercial purposes

3) file civil suit and seek orders to direct builder to refund your money with interest

4) file police complaint of cheating , criminal breach of trust against builder

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

RERA in one of its recent judgments has declined to grant any reliefs to flat purchasers having only allotment letter

2) only in cases where in agreement for sale has been entered into has RERA granted reliefs

3) consumer forum would not grant you reliefs as you had bought 6 flats for commercial purposes

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

1. if you see the scheme of the RERA and MOFA acts, you are not eligible to protection afforded under those acts

2. in your case the agreement was to buy back the flats allotted to you

3. buyback of flats never happens in RERA and MOFA

4. the allottee/flat purchaser becomes the end user and beneficiary

5. in your case it is purely a commercial transaction with a view to earn profits

6. you had not invested to buy the flats but you had invested towards financing the project of the builder and getting profits in return

7. RERA and MOFA does not recognise such transactions

8. Even you cannot claim any right under CPA since there is an commercial element in involved as you woul be getting profit on investing/financing the project

9. your only remedy is to file a commercial or summary suit

10. If you feel that you can avail protection under RERA/MOFA/CPA you can file suitable complaints

11. at the most either you will be given the relief or refused to be given any relief for reasons mentioned aforesaid

12. if the relief is refused, you always have the remedy of filing suit in High Court for recovering your money

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

Kindly check the order in Anand Agarwal and anr. V/s Vilas Chandrakant Gaonkar and ors. passed by Bombay High Court.

The defendant builder admitted his liability of having taken money from the plaintiff and also having pre-sold the flats to third parties before they were sold to the Plaintiff. Since liability was admitted, both parties agreed for a consent order as to how money would be repaid by the builder to Plaintiff. Later Defendant builder challenged the consent order which challenge was dismissed by the High Court.

Thanks

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

See under consumer protection a end user consumer is protected since with tag of investor you won't get protection under consumer.protection act. There are number of cases because you have taken flat for investment purpose not for use so in my view court will reject the complaint.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

After the amendment Act 62/2002 in the Consumer Protection Act, 1986, that came into force with effect from 15.03.2003, the definition of the expression "consumer" as defined in Section 2 of the Consumer Protection Act, 1986, was amended and it excluded from its purview a person who obtains such goods for resale or for any commercial purpose.

Further, an Explanation was added to the definition which reads that, "for the purpose of this clause "commercial purpose" does not include use by any person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment".

So, your complaint won't last in consumer court, in my opinion.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

You can approach to one of the authority. You can also file criminal Complaint under section 138 of NI Act in Court. You can also file FIR against the builder for cheating

Prashant Nayak
Advocate, Mumbai
27245 Answers
88 Consultations

4.4 on 5.0

1. Firstly file FIR with the local police station against the Builder alongwith all the documentary proofs (cheques, MOU, anyother ....)

2. Subsequent to the above file Criminal case of Cheating, Intimidation, Forgery, Fraud.... against the Builder.

3. ALSO can file Civil suit, depending on the actual case history.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

Already advise has been rendered, since you bought 6 flats I would not advise you to prefer a complaint before the consumer court.

File a case before RERA

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You have not mentioned that whether you have purchased the said flats by registered sale deed or by an unregistered MOU alone.

Assuming that the properties were bought by registered deed, you can file a suit for specific performance of contract agaisnt the builder to deliver possession of the property.

If it is an unregistered deal, then you may lodge a complaint against the builder based on the documentary evidences for the payments made and the agreement entered with the builder.

If it is RERA registered flats, you may make a complaint against the builder for his fraudulent activities also but in my opinion, the RERA may not interfere to the extent desired by you, hence you have to look for the other options only.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

I had chosen n been allotted wing wise particular numbered 6 flats, which was mentioned in MOU.

Automatically, I am an allotee n have all protection under RERA n MOFA. How about CP Act ?

Sir,Pls.reconsider my status n advise.

The RERA or MOFA act may not be of any support to you after certain stage.

You may approach the consumer court for relief and remedy

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

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