• Shall i file section 138 or make settlement with affidavit

Builder in Navi Mumbai failed to deliver me flat, I had paid him 22 lacs in advance. 
He had given me a post dated cheques to pay back my money. Cheques got bounced due to insufficient fund. I sent him a section 138 notice.

He wants to do compromise by offering big flat in another building at this 22 lacs only. However, that building is not approved/ comes under Gavthan and currently, flat registration is not possible due to incomplete documents. He says documents will be completed and the building will go under a municipal corporation in a few years.

He says we will make an affidavit, which says
1. If he could not give us money within next 4 months this big flat will be ours at 22 lacs only.
2. When building will go under a municipal corporation, he will still give us flat at this price only and not raise the price.
3. If the building gets demolished by the government then he will return the money. He will now also give cheque without a date as security.

I have to two options either file 138 case or make an affidavit. 

I want your suggestions between the two.
And If making affidavit is a good deal then how valid my affidavit be in case of demolition of the building.. can I file section 138 on the basis of blank dated cheques then.
Asked 5 months ago in Property Law from Navi Mumbai, Maharashtra
Religion: Hindu

File complaint under section 138 NI on account of dishonour of cheque 

 

don’t agree for flat in building which registration is not possible 

Ajay Sethi
Advocate, Mumbai
68821 Answers
4143 Consultations

5.0 on 5.0

better to move on 138 and later on compromise the matter during the court proceedings to secure your interest

 

Suneel Moudgil
Advocate, Panipat
1191 Answers
1 Consultation

4.3 on 5.0

See the flat is not approved and it is a risk you will.take as if he fails.to owner his agreement then in that case you have to go to.civil court and which will be long procedure. So if it is agreeable ask builder to make register sale agreement in your favour for price of 22 lakh only in case he deny this proceed for complaint.

Shubham Jhajharia
Advocate, Ahmedabad
20743 Answers
81 Consultations

5.0 on 5.0

1.  File 138 cheque bouncing case immediately, supported with all the documentary evidences.  This is the ONLY perfect & safest and sure-shot legal option for you, wherein the builder is trapped into giving you back your money and settlement.

2.  The mentioned affidavit by you, is legally insufficient for any legal purposes and is fit for using it as a toilet paper.

3.  Don't get trapped by such builders .... they look for gullible people all the time

Hemant Agarwal
Advocate, Mumbai
2804 Answers
16 Consultations

5.0 on 5.0

Don't be lured into false promises. Proceed u/s 138.. 

I'm prepared to handle this as your advocate. ९८२०८९७८८४. (Nine eight two zero eight nine seven eight eight four)

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1205 Answers
3 Consultations

4.4 on 5.0

i would suggest you to file a 138 case against the builder and after he is summoned to the court, then let him make a settlement before court.  Kindly record all these things in the settlement agreement before the court.

Archit Vasudeva
Advocate, New Delhi
82 Answers

5.0 on 5.0

Hi,

It is expected that builder may cheat you in future also. So, get the case registered and then enter into compromise on the said terms by way of court settlement. It will recorded in court and the builder will not be able to escape.

Ganesh Singh
Advocate, Delhi
3269 Answers
9 Consultations

4.5 on 5.0

1. You are trying to fall in frying pan from fire and hence reject this proposal at once.

2. Rather ask for full refund or a flat in a  property which is legally constructed.

3.  Else file the case under section 138 NI Act.

4. If the building is demolished then the affidavit will be of no use. 

Devajyoti Barman
Advocate, Kolkata
18104 Answers
260 Consultations

5.0 on 5.0

Hi,

You should immediately file a case under 138 N I Act. Builder is misguiding you. There are limitation period in filing of 138 cases, hope you know that, The builder is just wasting your time.

Rajni Sinha
Advocate, Mumbai
405 Answers
39 Consultations

4.6 on 5.0

better file complaint under 138 and intiate legal action.

Mohammed Mujeeb
Advocate, Hyderabad
11572 Answers
4 Consultations

4.5 on 5.0

If you want to agree to the same make a detailed agreement with the penalty clause and get it registered.  Also take undated cheques of the said amount as security for that purpose so that you can go against him legally

Prashant Nayak
Advocate, Mumbai
14372 Answers
24 Consultations

4.6 on 5.0

 There is no value of this affidavit.

This cannot be enforced in law nor it can be an admissible document in the court of law.

It is as good as falling into the death trap by yourself.

You may insist on return of your money alone and if necessary you can obtain a loan agreement to this amount as well as a promissory note so that you can be able to recover the amount through civil court if necessary.

T Kalaiselvan
Advocate, Vellore
58651 Answers
743 Consultations

5.0 on 5.0

This is my response to you:

1. Immediately go for filing of the complaint under section 138 of NI Act;

2. You will at least get the money back or arrive at an settlement;

3. Consult a local lawyer, discuss full facts and take steps.

Gowaal Padavi
Advocate, Mumbai
1841 Answers
2 Consultations

5.0 on 5.0

i strongly suggest go for 138

without verifying whether the building in which he is offering the big flat is legal or not, its very difficult to believe the builder

section 138 is very technical and there are timelines within which the compliances like legal notice etc have to be issued

so file a 138 complaint

you can also file a civil suit against the builder for recovery of your money with interest

the builder's version seems highly doubtful 

Yusuf Rampurawala
Advocate, Mumbai
4649 Answers
28 Consultations

5.0 on 5.0

You can claim the as compensation.  But legal liability is only the cheque amount. It takes time in court and no secific time can be told. 

Prashant Nayak
Advocate, Mumbai
14372 Answers
24 Consultations

4.6 on 5.0

1. you can claim interest and legal expenses in your 138 complaint

2. punishment will be as decided by court - penalty or imprisonment or both

3. let me tell you that 138 is a very slow procedure. You will get dates after dates. But that will also put a pressure on the builder as he will have to engage lawyer for making appearance on his behalf in court for which he will have to incur expenses. So you must take it that determination of a 138 complaint takes a very long time. But that should not be the deciding factor whether or not to file 138 complaint. The purpose is to enforce your remedy of 138 within the time prescribed by law [since 138 is a time bound procedure when it comes to compliances like issuing legal notice and filing complaint in court - once that time is lapsed, you lose your right and your condonation of delay application may or may not be allowed] and to put pressure on the builder so that returns your money. 

Yusuf Rampurawala
Advocate, Mumbai
4649 Answers
28 Consultations

5.0 on 5.0

Section 138 NI cases take 5 years to be disposed of 

 

2) it is for punishment of accused 

 

you cannot claim interest in 138 NI cases 

 

file summary suit also to recover your money with interest 

Ajay Sethi
Advocate, Mumbai
68821 Answers
4143 Consultations

5.0 on 5.0

The court may grant you interest and compensation. See in 138 generally the provision for imprisonment is for 2 years and/or penalty generally the penalty is only imposed and also there may be imprisonment for 3-6 months in general.

Shubham Jhajharia
Advocate, Ahmedabad
20743 Answers
81 Consultations

5.0 on 5.0

You can claim even double the cheque amount and also the lawyer's fee and other litigation expenses in the cheque bounce criminal case.

It may take at lest two to three years for disposal of such cases.

T Kalaiselvan
Advocate, Vellore
58651 Answers
743 Consultations

5.0 on 5.0

In 138 NI Act proceeding the court has power to impose penalty double the amount mentioned in the dishonoured cheque.

Devajyoti Barman
Advocate, Kolkata
18104 Answers
260 Consultations

5.0 on 5.0

1. interest or lawyer charges can't be claimed but at the time of settlement you can negotiate,

2. maximum imprisonment is 2 years and usually disposed of in 1-2 years 

Suneel Moudgil
Advocate, Panipat
1191 Answers
1 Consultation

4.3 on 5.0

yes, you can claim legal expenses fee. 

the dishonour of cheque is a criminal offence and is punishable by imprisonment up to two years or with monetary penalty or with both. 

it may take anywhere around 2 to 5 years to take effect.

Mohammed Mujeeb
Advocate, Hyderabad
11572 Answers
4 Consultations

4.5 on 5.0

yes you can claim interest and your lawyers expense, 

no body can guarantee you the time in a case, depends on the judge and how efficient your lawyer is.

 

Archit Vasudeva
Advocate, New Delhi
82 Answers

5.0 on 5.0

Dear Client 

You should Go ahead with Section 138 NI act as there is no guarantee that the flat will get registered on your name due to incomplete paper work. 

And once you withdraw the case there will be no more option left under law to recover your money. 

Mohit Kapoor
Advocate, Rohtak
4667 Answers
1 Consultation

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer