• Plot registered but possession not given

Hi

We are 8 buyers and bought plots in BMRDA approved layout in 2014 from BBM corp builder in Bengalore.

They promised to do the plot development and demarcation but after following-up with them until now they are failed to give possession. 

In between farmer are started cultivating in the proposed land and builder has closed their office. Now there is no way to communicate with builder except visiting his house.
What are the step we can take in this step. Until we wanted to resolve it out of court but we lost all our hope.
Asked 4 years ago in Property Law
Religion: Hindu

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21 Answers

Firstly send legal notice to builder. Thereafter file for injunction restraining farmers from cultivating land if the plots are registered in your name. Secondly file a suit for Declaration to declare you people as owner of land.

Also you can file a consumer complaint against builder for deficiency in service.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Hello sir , it is advisable to file a complaint before RERA ( real estate regulatory authority) ...RERA is a fast trial court that has been set up , and you can seek refund of your amount alongwith interest and compensation

Hemant Chaudhary
Advocate, Gurgaon
4627 Answers
67 Consultations

4.9 on 5.0

Have u made any payment, If yes than FIR will be best route recover paid money.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You can send him a legal notice for giving possession of the plot and seek interest on your payments made equal to the interest builder/developer charges if their is delay on part of the buyer in making payments.

Further you can initiate Consumer complaint in NCDRC or state consumer Court( as per jurisdiction denoted from value of subject matter).

You shall seek possession of your plots along with interest on delay and alternately pray for refund of the amount paid to the builder in case the builder fails to offer possession along with interest from the date of payments made to the builder.

You can also file a complaint in EOW(economic offence wing) against the builder/developer under section 406/ 120B 34 etc as per your case. Once you make a complaint to EOW and if cognizance is made then they can register a FIR against the builder or else you need to file a application in the court of magistrate under sec 156(3) r/w 200 crpc. This will create pressure on builder to deliver your plots.

It’s very tuff to settle these matter without proceeding to courts as the builders are very well aware of handling these isssues. If your builder is a renowned one then he can settle prior to all this so as to protect his image.

You can also file a complaint in RERA if your project come under RERA law. But RERA being a new evolved law isn’t properly executed till now.

Ruchit Dugar
Advocate, New Delhi
190 Answers

4.9 on 5.0

File a cheating and breach of contact case. Fix a lawyer and send the legal notice.

Sudhindra Bhat
Advocate, Bangalore
51 Answers

Not rated

You can serve the builder with notice and can file the FIR against builder for breach of trust and cheating.

You can also file complaint before Consumer court but the FIR shall be speedy remedy at this point of time/

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Looks like the builder was a fraud, took your money and vanished. All 8 buyers must lodge a criminal case against BBM Corp Builders U/s 420 of IPC immediately.

Once the police trace and apprehend the builder can you proceed to recover your monies from them. So do not hesitate go ahead and lodge the complaint immediately.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

File complaint against builder before consumer forum and seek orders to direct builder to deliver possession of plot to you

2) seek litigation costs and compensation for mental torture undergone by you

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

This is my response to you:

1. Send legal notice to the builder;

2. You can also claim compensation from them;

3. You can also file a case of cheating and criminal breach of trust punishable under IPC;

4. As a method of last resort you will have to approach the court by filing suit;

5. You can also claim stay order on the land and injunction against the famers.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Please don't lost your hope, if you have all the documents in this regard and communication details it's enough you are take legal action against the said builder, if you want more advice in this regard I will do it. All the best.

C. V. Jadhav
Advocate, Bangalore
545 Answers
18 Consultations

4.7 on 5.0

Dear Sir,

There is other option except approaching the police or to the court by private complaint. In the meanwhile search for their personal addresses from the office of Registrar of Companies and search for their individual properties and file civil suit to attach the property before judgment under following provision of law.

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Order 38, Rule 5 CPC:-

(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-

– (a) is about to dispose of the whole or any part of his property, or

– (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

– the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

– (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.

– (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

– (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void.

Where defendant may be called upon to furnish security for production of property

Scope of rule:-

The Scheme of Order 38 and the use of the words `to obstruct or delay the execution of any decree that may be passed against him’ in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5CPC. . (See the Hon’ble Supreme Court’s ruling in the CASE NO.: Appeal (civil) 6171 of 2001, Raman Tech. & Process Engg. Co. & Anr. Vs.Solanki Traders, DATE OF JUDGMENT: 20/11/2007; 2008 (2) SCC 302).

The Hon’ble Apex Court held in the case of Raman Tech. & Process Engg. Co. & Anr the power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking.

Application of Order 38, Rule 5 CPC:-

Where the property is the property in suit, an injunction should be obtained :- Where the property is the property in suit, an injunction should be obtained under O.XXXIX r.1, Clause (a), which may be enforced under r.2 of that Order by imprisonment or attachment, And where the property is not that in suit, an alternative is given under r.1 of the same Order, Clause (b), where the words ‘Property’ is not confined to property within the jurisdiction, or property which is in dispute in the suit. [ Raja Goculdas Vs. Jankibai, 5 Bom. L.R. 570, at p.574 (1903), where it is pointed out that Joy narain Geeree Vs. Shibpershad,6 W.R. Misc. 1 (1866) is not applicable as Sec. 93 of the Code of 1859 was expressly limited to the property in dispute.].

No attachment on light grounds:- In 1866, in the case of Gamble Vs Bholgir [2 BHCR 146,161], it was observed that the jurisdiction to attach before judgment should be exercised with great discretion, and no court should grant such an attachment on light grounds or unless it is perfectly satisfied with trustworthy evidence that the defendant is about to dispose of his property or to remove it from the jurisdiction of the Court.

Where the most perfect good faith is wanting, the application should be rejected:- In all applications for attachment before judgment, there must be uberrina fides on the part of plaintiff, and where the most perfect good faith is wanting the application should be rejected. Ref. Ahmed Ali Vs. Gladstone Wyllie, 7 W.R 508 (1867).

Any stage of the suit :- The application can be made at any stage of the suit, but can be entertained only so long as the suit is pending. See Sri Rammanik Vs.Tin Cowri Rai, B.L.R 68 FB (1869).

Intention to obstruct or delay the execution of any decree which might be passed:- The facts mentioned in clauses (a) and (b) must have been done with the intent mentioned in the first paragraph, namely, to obstruct or delay the execution of any decree which might be passed. Ref: Ram Narain Vs. Levy, 2 Hyde, 183 (1864).

The words, ‘ about to dispose of ’:- Clause (a) says, is ‘ about to dispose of ’,etc., therefore the section does not apply where the defendant has actually parted with the properties. Ref: Soorjee Kumar Vs. Issur Chunder, Bourke, 243 (1865).

It does not refer exclusively to movable properties:- The Section does not refer exclusively to movable properties but applies to immoveable properties also. Ref: Bishambar Vs. Sukhdesi, 16 A 186 (1894).

Attachment of property covers its profits:- As has been held in Ram Coomar Vs. Gobindnath, 12 W.R. 391 (1869), attachment of property covers its profits. But if the owner is allowed to enjoy them the profits cease to be specifically liable.

In Govindrao Mahadik v. Devi Sahai, , the Hon’ble Supreme Court held at para 58 of its judgment as follows: “Attachment before judgment is levied where the Court on an application of the plaintiff is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree.”

– In the case of Mamidala Suresh Babu And Ors. vs Tirumalasetti Krishnamurthy and … 2006 (3) ALD 605, 2006 (3) ALT 250, the Hon’ble High Court of Andhra Pradesh, it was held that the sine qua non for an order of attachment before judgment or for an order demanding security before judgment is that the defendant is disposing of or about to dispose of his property with the dishonest intention of defeating or delaying the possible decree in the suit. The merits of the claims of the contending parties are merely ancillary factors for consideration by the Court in arriving at a conclusion with regard to the essential requirements of Order 38, Rule 5, C.P.C. [Also See. Nowroji Pudumjee v. Deccan Bank Ltd., A. I. R. (8) 1921 Bom. 69].

Property without the jurisdiction:-

It was held under the last Code both that the section did not and did apply where the property sought to be attached was beyond the jurisdiction of the Court in which the suit was pending. A Court which cannot attach primarily in execution of its decree cannot attach in anticipation of it. It was therefore held, even under the Code of 1859, that a Court of Small Causes could not attach immoveable property under this section. It was held that the Court had jurisdiction where the property was a chose in action due from the Collector who, like the judgment-debtor, resided within the jurisdiction of the attaching court. See. Ravji Moreshwar Vs. Narayan Ballal, 3 Bom. L.R. 462 (1901).

Effect of attachment:-

If we go through the ruling of the Hon’ble Supreme Court in the case of Sardar Govindrao Mahadik & Anr vs Devi Sahai & Ors, 1982 AIR 989, 1982 SCR (2) 186, we can find answer to this question.

What is the effect of attachment before judgment ? Attachment before judgment is levied where the court on an application of the plaintiff is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) is about to dispose of the whole or any part of his property. Or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. The provision in section 64 of the Code of Civil Procedure provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to. such attachment, shall be void as against all claims enforceable under the attachment. What is claimed enforceable is the claim for which the decree is made. Motilal’s suit was for a money claim. It finally ended in a decree for Rs. 500 by High Court and in between the 1st appellate court had dismissed Motilal’s suit in entirety. There is nothing to show that the attachment which would come to an end on the suit being dismissed would get revived if a second appeal is filed which ultimately succeeds. In fact, a dismissal of the suit may terminate the attachment and the same would not be revived even if the suit is restored and this becomes manifestly clear from the newly added provision in sub rule (2) of rule 11 A of order XXXIII, C.P.C. which provides that attachment before judgment in a suit which is dismissed for default shall not be revived merely because by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored. As a corollary it would appear that if attachment before judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside the attachment of necessity must fail. There should be no difficulty in reaching this conclusion. (See 1982 AIR 989; 1982 SCR (2) 186; 1982 SCC (1) 237; and 1982 SCALE (1)191; and S. Noordeen vs S. Thiru Venkita Reddiar & Ors: 1996 AIR 1293, 1996 SCC (3) 289 for more knowledge as this aspect.)

– To know the effect of Order XXXVIII Rules 5, and 7 of the Code of Civil Procedure; and section 136 of the Code of Civil Procedure, it is better to go through the following rulings: Rajender Singh vs Ramdhar Singh And Ors (2001) (CASE NO.: Appeal (civil) 4394 of 1991), Bansropan Singh and Others v. Emperor, AIR (1937) Patna 603, AIR (1963) Allahabad 320,Haji Pahim Bux and Sons and Others Vs Firm Samiullah, MG. Brothers v. Shah Talchand Parswachand & Co., AIR (1963) Mys. 147, Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan and another, [1990] 3 SCC 291 and the Hon’ble Apex Court approved the views expressed in Paparaju Veeraraghavayya v. Killaru Kamala Devi. AIR (1935) Mad; 193; Veerappa Thevar v.. C.S Venkatarama Aiyar, AIR (1935) Mad. 872 and Angu Pillai v. M.S.M, Kasiviswanthan Chettiar, AIR (1974) Mad. 16 followed by Rango Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal, AIR (1941) 198; Yesvant Shatikar Dunakhe V. Pyaraji Nurji Tambol, AIR (1943) Bom 145 and Kochuponchi Varughese v. Ouseph Lonan, AIR (1952) TC 467

Kishan Dutt Kalaskar
Advocate, Bangalore
6069 Answers
409 Consultations

4.8 on 5.0

1. File criminal cheating complaint, against Builder, in local Magistrates court.

2. Additionally, consider filing complaint before the local RERA authority.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

I have come across many cases like this. Please understand that there are already many cases filed against BBM corp builder in Karnataka. The only left with you all is to knock the doors of the court to get justice.

I would suggest all 8 of you to send a legal notice first in this regard. All legal action can only be taken once notice has been served upon the entity or individual you wish to take to court. It is only this process that legalizes bringing a matter to court. The intimation sent is known as a legal notice.

A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them.

This notice, when sent, conveys your intention prior to the legal proceedings and thus, makes the party aware of your grievance. Many a times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides.

And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law.

Although a legal notice can service as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases.

You all can also visit the Real Estate Regulatory Authority, Karnataka as it is the duty of RERA to protect the interest of buyers. RERA can impose penalties on these builders.

You all can visit the below mentioned address-

K.G.Road, Raj Bhavan Rd, Kaveri Layout, Bengaluru, 560009

At last I just want to say that you all have to work together because where there is unity there is always victory. Moreover, human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.

SHRI GOPAL VERMA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

Shri Gopal Verma
Advocate, New Delhi
317 Answers
5 Consultations

4.0 on 5.0

As per the query of yours, it is sure that the builder has commited the breach of contract between you and him.

I advice you to file a commune complian to the RERA then wait for 15 days.

Then file a complain case in RERA.

Sanjay Baniwal
Advocate, South Delhi
5468 Answers
13 Consultations

5.0 on 5.0

Hello,

A case will have to be filed by you in the consumer forum for unfair trade practices.

Also, if the builder is registered with RERA then a case in RERA can be filed by you.

Regards

Anilesh Tewari
Advocate, New Delhi
17968 Answers
377 Consultations

5.0 on 5.0

A. You will become absolute owner of the plot once the plot is registered by way of execution of Sale Deed in your favour. However, the process of registration of plot must be legal in the eyes of law which means the said plots shall have Conversion order, Plan Approval and Site Release Order from the BMRDA.

B. Transfer of ownership is nothing but transfer of property right with possession. No sale will happen unless delivered the possession of the property subject to some exceptions.

C. Once the Sale Deed registered, you are free to permit to transfer property in your name by way of Khatha and you are liable to pay property tax.

D. You may issue a legal notice to the builder to restore your possession against dispossession of the property and the builder has bounden duty to resolve the issue at their own cost.

E. You can file a Declaration suit directly before the Court against the farmer or you can seek injunction against them. But we cannot come to conclusion in your case unless verified your documents.

B.T. Ravi
Advocate, Bangalore
943 Answers
96 Consultations

5.0 on 5.0

Legal notice should be sent to seller as well as builder to deliver possession of property to you

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

Q:1: I understand that BBM Corp is a confirming party as he has entered into a Joint development agreement with land owner, hence they will sign as confirming party only.

Q:2: In addition to the JDA the builder representing as seller is holding a registered GPA duly executed by the land owner to convey the property in your favour (Purchaser),

Q:3: The plot in question must have fallen to the share of the builder vide an sharing supplementary agreement and hence builder is entitled to receive the sale consideration towards the sale of the said plot.

Q:4: D.C conversion from agricultural to non-agricultural residential purposes has been obtained and hence the plot can be sold in your favour for residential use.

Q:5: Are you sure that this project has been approved from B.M.R.D.A because if it so, then builder can sell only 60% of the plots in the first phase and balance 40% of the plots can be sold only after all the amenities are completed in the project. Your plot was released in the first phase, after which the builder has not made any efforts to complete the amenities in the project.

On a clear analysis of your case, I suggest you file a complaint against the land owner, builder/developer and B.M.R.D.A before the consumer court and seek out your relief from them. All the eight affected persons may approach the consumer court at once, but before that you will have to issue a legal notice and then proceed. Contact a good consumer advocate and start the process immediately

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

Firstly BBM corp is a developer in your case, you must have entered an agreement with the developer that he has to develop the land and then deliver the possession. As in your case it seems builder has the obligation to develop your project and the seller doesn't have to comply with any tasks after entering into sell agreement.

You can send legal notice to developer and seller as both have the obligation to deliver possession. As per law legal notice isn't compulsory though before filing a consumer complaint. You can send it to check whether he is willing to settle out of court or not.

For any further assistance feel free to call.

Ruchit Dugar
Advocate, New Delhi
190 Answers

4.9 on 5.0

You first issue a legal notice to the seller demanding possession of the property purchased, after that you can file a suit for possession and mandatory injunction.

T Kalaiselvan
Advocate, Vellore
80016 Answers
1674 Consultations

5.0 on 5.0

Sir both have to be made parties to the suit and complaint. Further send legal notice to both the parties.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

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