Ask builder to execute agreement for sake 

2) generally in such cases sale proceeds are kept in escrow account and paid to bank that advanced the loan 

3) it is builder responsibility to execute registered sale deed in your favour 

It is a fraud case

Mortgage property can not be sold.

You have no title to the property.

Complain to police immediately.

File money recovery suit in civil court 

Take matter seriously. 

Yes agreement to sale in such condition is mandatory , also the agreement is registered.  No agreement to sale shall he valid condition of mortgage and time of release can be mentioned.

Further in case the property is mortgaged you can opt for another plot if same is feasible.

1. You can ask the Developer to get an NOC from HMDA and then register the plot in your name.  The mortgage will continue will closure and you will be liable for the mortgage (which you need to adjust from the amount finally payable to the builder).  This is legally safe enough.

2. Typically the whole layout would be mortgaged to HMDA by developer (which is a usual practice). Hence it would be literally impossible to find a absolutely clear title plot.

The agreement of sale cannot be registered to the property which is already mortgaged to a third party.

However an unregistered sale agreement can be entered between buyer and the seller with the terms, but this cannot be enforced in court of law in case of any dispute on this.

You can issue a legal notice to the builder to register the proeprty t your name immediately on the basis of settlement of the full sale consideration amount, let him give a reply, after which you can pursue the proper legal action on this including return of booking amount.

First of all you have to speak to the developer for the clearing status of the property since 2016 onwards all the development whether it is a plot or apartment it is regulated by the real estate Regulation and development act 2016 and in case there is no builder buyer agreement and you have paid the entire amount and the project is delayed by more than one year then you can ask are the refund along with the interest which is mclr + 1% of State Bank of India if you wish to get the plot then speak to the developer and tell him to register the property otherwise you have to to lodge online complaint on the rera portal providing all the related documents and detail to complaint against the Builder this is very 50 process and very quickly you will get the decision of the real estate regulator in this regard and you will be able to create pressure on the Builder to get the property registered and give the possession to you.

You may get compensation in the form of interest for the delayed period even if you get the property

Dear Sir,

REPLY to your questions are:


- Can I ask the developer to prepare an 'Agreement of sale' on the said plot even though it's mortgaged 
to HMDA and register once they release? Since it's already mortgaged, will it void the 'Agreement of sale'? 
A: You can get Agreement of sale even though it is mortgaged by putting some conditions 

- If an 'Agreement of sale' is not an option here, what's the better approach? Choose another plot which is clear? 
Ideally, I don't want to lose this plot because of it's strategic location in the layout.
A: You may ask the builder to provide for any other security like blank cheque or sale agreement in respect of 
other clear site. 

Since it is mortgage with HMD, any deal fixed by builder is illegal. IF you are interested to block your money than only execute agreement otherwise send legal notice for refund with interest, failure to which file FIR.

1  yes. And you can seek compensation in consumer court.Even FIR for cheating is maintainable. 

2. Yes it's better you take refund

Yes you can ask him for making a sales agreement as you have make payments for the plot in advance. No agreement will not be null and void. 

If he refuse to provide the agreement then you can file suit for refund with compensation and interest or specific performance for registration of flat on your name. 

You have options under the Indian Registration Act, 1908. section VI

VI. IF ONE OF THE SIGNATORIES IS NOT WILLING TO ATTEND THE OFFICE OF THE SUB-REGISTRAR FOR COMPLETING THE REGISTRATION FORMALITIES,THE REMEDIES AVAILABLE ARE AS UNDER:-

If one or more of the signatories is not willing to complete the registration formalities then an application has to be made to the Sub-registrar of Assurances under section 36 of the Indian Registration Act, 1908. Thereafter the sub-registrar of Assurances will issue summons and after giving an opportunity to the person who has not remained present can proceed with the registration formalities. He shall make a noting in the document stating registration refused with regards to the party who has not remained present and can also deliver the document to the party who has applied for registration.

Hi 

It appears that the builder has sold to you the plot mortgaged with HMDA which is per se contrary to law. 

However, if you still wish to retain the same plot that was sold to you, you can enter in to an "agreement to sell" and have the document registered (after payment of 4% of FMV stamp duty and 0.5% registration charges) as well given the fact that Mortgage to HMDA does not prevent the seller from entering in to agreement to sell with buyer. 

Vide section 54 of transfer of property act, an agreement to sell is not " conveyance"  under transfer of property act as ownership and possession will continue to remain with builder.

Once the mortgage is released by HMDA, you can pay the remainder of 1% stamp duty and 0.5% registration charges and enter in to a sale deed. 

Hope this information is useful. 

The mortgaged property can not be dealt with without written consent of the mortgagee. 

issue a legal notice to the builder to register the property or return money along with interest and compensation.