Recovering advance paid for buying land
We paid an advance to purchase a property in Trivandrum. The deal did not go through because the land is pledged with KSFE and is in-turn tied to several loans. The seller is unable to refund the advance. We have this well documented through a lawyer and notarized. He had given us cheques which when presented, bounced due to insufficient funds.
The seller has 2 property loans with KSFE (pledged and in default). They have issued recovery notices against the property.
My lawyer has advised to proceed with a criminal and civil case. Is there a merit in doing both or would one suffice? Which one is likely to be settled by the court soon?
Asked 2 years ago in Property Law from United Arab Emirates
1) you can file criminal complaint of cheque bouncing under section 138 of negotiable instruments act
2) on being convicted accused can be sentenced to impriosonmemt
3) cheque bouncing cases. Take 5 years to be disposed of
4) you can file summary suit to recover your advance
5) you can obtain interim orders within one year for seller to deposit money in court or can obtain decree if no case is made out by seller
6) better file civil suit
You should file complaint before CJM court for the offence of bouncing of cheque. but borne in mind that complaint shall be instituted in the court to whose jurisdiction bank is situated from where cheque is issued.
You can file criminal case for the offence of cheating and mischief ih builder knew at the time of advancing money that property is pledged.
don't file suit for recovery of money because it will take long time to decide. when he gave you a cheque and that is bounced then it is proved from his conduct that he admitted his liability, so no need to file suit for recovery of money.
1. It seems that you did not conduct due diligence before purchasing the property.
2. What is the cancellation and forfeiture clause mentioned in the agreement which you had executed with the seller? The refund can be sought within the periphery of these two clauses.
3. Since the seller had issued you cheques which have bounced due to insufficiency of funds you can prosecute him for cheque bounce by filing a case to this effect in the court.
4. Simultaneously you may file a civil case to recover your money from him.
5. There is absolute merit in filing both the cases. One would not suffice.
6. Nobody can tell which would be decided earlier in time by the court.
The cheque bounce case is a criminal case and would not fetch the money back except as per rules, it can be even conviction alone. However this fear of conviction would bring to a negotiable platform.
Civil case is for recovery of money.
So both the cases can be filed simultaneously.