There is no privity of contract between builder and second plaintiff
2) suit by 2nd plaintiff against builder is not maintainable
3) remedy is to sue 1st plaintiff to recover your money
CPC
Sirs, Builder sold Flat to Mr ‘J’ and Mr ‘J’ paid him 75% amount in cash and 15% amount in Demand Draft for which Builder issued him one Money Receipt and also executed Sale-Agreement and Money Receipt is attached thereto It was agreed that the balance 10% amount was to be paid after registration of the Sale-Agreeemnt In the meanwhile Mr ‘J’ needed Money and hence sold Flat to Mr 'S' and taken whole sale-consideration from Mr 'S' and executed Sale-Agreement with him and promised him to register the said Sale-Agreement as and when he gets his Sale-Agreement Registered from Builder But Builder refused to register the said Sale-Agreement because price of the Flat increased tremendously So Mr ‘J’ could not register the Sale-Agreement which he executed with Mr 'S' Now Mr 'S' was planning to file case for the said Flat and also Mr ‘J’ was planning to file case for the said Flat Therefore they joined hands together and filed Suit for injunction and declaration against Builder as under :- Mr ‘J’ Planitff No.1 Mr 'S' Plaintiff No.2 V/s. Builder Defendant And they obtained Order of "Status Quo" against Builder Builder (Deft) filed Application under Rule 1 Order 10(2) of CPC praying therein to delete name of Mr 'S' (Plaintiff No.2) The Court allowed Application filed by the Defendant and ordered to delete name of Plaintiff No.2 (Mr S) on following grounds :- "Plaintiff No.1 has produced before me sale-Agreement executed by Defendant and Money Receipt signed by Defendant showing payment of Sale-Agreements but Defendant refused that he has not received the amount on account of sale-agreement and therefore it is a issue of Purava (proof) therefore cannot be taken into consideration at this stage. But it is not seen that Defendant transferred possession of Flat to the Plaintiff No.1 and further it is not seen that Sale-Agreements were registered and therefore prima facia it is seen that Plaintiff No.1 had no right to sell the Flat to Plaintiff No.2. Moreover as per O 10 R 2 Plaintiff No.2 is not the necessary party to suit for final Order Therefore application allowed and the name of the Plaintiff No.2 is deleted NOW WHAT THE PLAINITFF NO.2 CAN DO PLEASE GUIDE HARIOM
Asked 6 years ago in Civil Law
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15 Answers
Till full purchase consideration was paid by original buyer J to builder and possession was given to J, he could not have sold the flat to third part S, without NOC of builder
Builder continued to be entitled to the flat till he received full sale price from buyer
However builder was also equally liable to honour his agreement with J, provided J had not created third party right in meanwhile
S's remedy is against his seller J and not builder
Once J succeeds in enforcing his agreement with builder, J would then become liable to S to register his sale agreement
As third party right was created pending receipt of full payment, builder is entitled to terminate the agreement with J and not liable to perform his obligation under the agreement
Please settle the matter
Plaintiff no. 2 has to proceed against plaintiff no. 1 as he has no relief against builder, the plaintiff no. 2 has to file specific performance of contract against the plaintiff no. 1.
If the said order of deleting plaintiff no 2 is erroneous it can be challenged before appellate court
Sir i know several parties / financers who believe in Sale-Agreement executed by Builder provided the Purchasers have paid to Builder more than 80% sale-consideration And in such case these Financer take Original copy of Sale - Agreement executed between Builder and the Purchasers of Flats and they also take original Money Receipts issued by Builder to Purchaser and then they finance up to 50% to 70% of prevailing market Price to the Purchasers This is normal practice If in such case IF Builder starts refusing to perform his part then Purchaser is not the looser but the Financer is Looser in real terms because the Purchaser does take more initiative and does not fight with Builder The same is the case with Mr "S" here who is Plaintiff No.2 here Whether the Plaintiff No.2 cannot initiate one more RCS against the Plaintiff No.1 and other Defendant being Builder who is Original Defendant in old pending Suit RCS with sole aim of securing his Money which he had given totally relying on the Original Sale-Agreement having receipts of 100% payment (of that 90% payment was clear payment and only 10% was vide cheque which was not deposited by Builder because he had not done registration) Please advise HARIOM
Asked 6 years ago
Builder cannot be made party to the suit as in the agreement between the parties builder is no party .
Plaintiff no 2 can sue plaintiff no 1 to recover his money with interest
no case is made out against builder
S has to recover his money from J and not from builder
J's remedy is against the builder for not performing his contract
Both have distinct cause of action
Then i fail to understand how they joined hands and filed a suit against builder
How can a third party S compel the builder to register the document when in first place both S and builder have no privity of contract with each other
Plz check terms of sale agreement with builder. It will be having a clause not to create third party rights in the flat till full money is paid and without NOC of builder
How can then J ask for specific performance when he himself breaches an agreement term with builder?
The best remedy applicable is going against that builder in rera or Consumer court along with your civil suit. He can't refuse to register the same on account of increase in price
The order of the court is very clear that 1st plaintiff has no title to the proeprty by any registered deed, hence he is not entitled to sell the proeprty to a third person.
Therefore the deletion of 2nd plaintiff from the suit is proper and justified.
Now the 2nd plaintiff can sue the 1st plaintiff seeking the same relief what the 1st plaintiff has filed agaisnt the builder.
The second plaintiff 'S' can only sue the 1st plaintiff becasue he was the person entered into a sale agreement with the "S", and also there is no reason for S to sue or to implead the builder in this suit because he has no relationship with builder whatsoever.
S had given money to J only and not to the builder, the problem between J and the builder has nothing to do with S.
Sirs, AS STATED ABOVE Builder (Defendant) filed ‘SAY’ to Exh-5 stating therein that he had not received any sale-consideration from Plaintiff No.1. Hence Plaintif No.1 had no Right to sell Flat to Plaintiff No.2. Then Builder (Deft.) filed Application under Rule 1 Order 10(2) of CPC praying therein to delete name of Mr 'S' (Plaintiff No.2) Court allowed Application filed by Deft and ordered to delete name of Plaintiff No.2 (Mr S) on various grounds. Main ground is as under :- "Plaintiff No.1 produced before me sale-Agreement executed by Deft. and Money Receipt signed by him showing payment of Sale-price but Deft refused that he has not received amount on a/c. of sale-agreement and hence it is a issue of Puraavaa (evidence) therefore cannot be taken into consideration at this stage and hence prima facia it is seen that Plaintiff No.1 had no Right to sell Flat to Plaitiff No.2.. So, application is allowed and name of Plaintiff No.2 is deleted” NEW DEVELOPMENT As soon as the Order was passed by Court, on Next Date Builder (Deft.) filed an application U/O. 6 R 17 for amendment to his “SAY” stating that by mistake he had mentioned in the said “SAY” that he had not received any Money from Plaintiff No.1 but actually he had received Two Demand Drafts of Rs.1 Lac each from Plaintiff No.1 out of sale-consideration of 15 Lacs and hence he (defendant) be allowed to amend the said “SAY” filed by him with new statement that he had received only Rs.2,00,000/- from Plaintiff No.1 BUT if the Deft. had admitted in original “SAY” that he had received Two D.D. then it would have been visible that the Receipt of 15 Lacs signed by him containing entry of Two Demand Drafts was correct and then the Order on Application u/o 1 R 10(2) whould have been in different mode Now please Guide Should the Plaintiff No.2 go for Appeal or Review or any other steps ? HARIOM
Asked 6 years ago
still P2 has no case
the consideration agreed was 15 lacs
out of this builder is admitting only receipt of 2 lacs by his subsequent say
thus there is balance receivable from P1
if that is so then how could P1 sell the flat to P2 without noc of builder?
the order passed in builder's application for deletion of P2 from array of parties, would still hold the field, as neither P1 nor P2 are in a position to explain as to who the transaction between them took place when there was money to be received by builder from P1
P2 can go for a review and then try his luck in appeal - but i dont see any valid ground
why i am saying review is because P2 will have 2 chances to agitate against his deletion from the suit - one before the review court and second before the appeal court - but chances are very slim
without reading the plaint i am not in a position to advice further
Plaintiff no 2 should not go in for appeal or review
If builder has admitted he received the amount from.plaintoff first also then review of same.order can be filed before same court.
Review will be more appropriate
The plaintiff can file a revision petition before the high court against the decision of the trial court in the IA filed by the defendant seeking to delete the name of the second plaintiff under the provisions of O1 Rule 10 ion the grounds and merits he relies upon.
For the subsequent development, the 1st plaintiff can also file a revision petition agaisnt the impugned order deleting the name of the 2nd plaintiff based on the admission of the defendant of having received the sale consideration amount vide two DDs, which can be construed that he had received the entire sale consideration amount whereas he is lying before court hence his defence may not relied upon and the IA filed by him as well as the orders passed by trial court ion his IA maybe set aside and the petition may be dismissed since the defendant has not approached the court with clean hands.
It depends on how your advocate takes up the matter before court