Hi : As discussed, I had a Shop in a MHADA promoted society. I sold the said shop to a buyer and had given possession immediately. However, due to one condition imposed by MHADA, which the concerned society is supposed to fulfill, the said shop is not being transferred on the name of the buyer. Condition is : The society was supposed to have executed agreement to lease deed with mhada before 25 years, which the society is still unable to execute. The mhada is erroneously charging the society, change of use for the shops - irrespective of the fact that, the shops were constructed as shops since inception. unless, the society and mhada entered the said agreement, the society is claiming that they are not authorized to transfer any tenement. Since at the time of the sale of the said shop, in the NOC, the society claimed that, they are about to get the said agreement eecuted with mhada, under the assumption that, within a few months, the matter of transfer would get sorted, we went ahead with the agreement registration. The buyer - as per a condition in the agreement , has retained Rs. 25 Lacs from my payout - which he will release only at the time of the society transferring the said unit on his name. ( on share certificate) Thus, The buyer while having paid 75% of money (to me), is unable to get the shop on his name. The society is not doing anything to solve the issue. The MHADA is failing to enact what they were supposed to decades ago. I have done ample of follow up with the society and MHADA - to no avail. Using RTI I have discovered that, MHADA demand is illegitimate. Further, after having complained to the Sub register of cooperatives Its been six years, my money is stuck. The buyer is having possession of the shop so he is reluctant to do anything at all and he is refusing to revoke the agreement mutually, although I am willing to pay him back whatever I received. If I do not do anything, this staus quo will continue for decades, since apart from me, no one else is a victim. The buyer is happy since his Rs. 25 lacs remained with him free of interest , already for six years. I need to exit this registered agreement by paying the buyer whatever he paid to me already. There is no clause in the agreement which has specifically given me right to revoke the agreement - although the buyer had taken a right to revoke the agreement if the shop does not get transferred on his name within one year. Under the Indian contracts law, I hope there are provisions to salvage a victimized seller who is bound by a condition which is beyond his control. Therefore, I request to know : 1. Can I , through court, demand the buyer to revoke the agreement ? 2. How long these kind of cases will typically run ? - since the buyer will fight against such cancellation with all his might. 3. Can I get possession of my shops as interim relief ? Thanks
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
1)The terms of contract are sacrosanct
2) you had agreed that Rs 25 lakhs be retained by buyer till shop is transferred in your name
3) you cannot now revoke the sale deed
4) in case you file suit to set aside registered sale deed it would take at least 10 years to be disposed of
5) you would not get possession of the shop as interim relief
6) your remedy is to file suit against society to direct it to execute lease deed with MHADA
7) make MHADA a party to the suit
1. Yes if it's unexecutable condition it can be revoked under contract Act
2. It takes time for entire suit but you can take interim relief
3. It's difficult depends on discretion of judge
But you have delayed a lot. You can now only ask for refund with interest. Without fail file recovery suit. Builder failed to invoked revoke clause.
Have you executed only an agreement or sale deed ? If agreement only than file suit for cancellation of agreement for failure of buyer to make full payment and recover possession.
Without registered sale deed, ownership dose not transfer. Can request for interim relief if shop is lyign vacate.
1. File Civil Court litigation suit against MHADA, Seller & Society and seek directions from Court to Mhada to issue Transfer NOC to you (at Mhada prescribed premium rates) and directions to Society to Transfer Membership to new buyer party.
2. Your mentioned details /dispute (lease agreement ) between Mhada and Society has got nothing to do with your Transfer of membership in Society. You are supposed to be taking Mhada Transfer NOC for your property after paying Mhada premium and based on such Transfer NOC, the Society shall have no option but to transfer membership to new buyer.
It is your duty to produce all the valid documents to the buyer before executing the registered sale deed.
If you failed to produce the documents that are essential for the registration of the deed, then the buyer can take legal action against you for your failure to procure and handover the said documents.
What are all the legal action you have taken agaisnt the society or the MHADA in this regard.
If you have documentary evidences for all your efforts then you may file a writ petition against the society and the MHADA as a second respondent before Bombay high court seeking the desired reliefs and also a decision to direct the cancel the registration of sale agreement with the buyer to the sub-registrar if the first relief to get NOC and other formalities is not feasible or not done within a stipulated period of time. The sub-registrar also can be impleaded as a necessary party for seeking the said relief against him.
You may discuss with your advocate in this angle and on his suggestions you can proceed legally for putting an end to your difficulties and hardships.
1. i regret to say that either you took a decision to sell the shop with part payment yourself, which is patently foolish, or you were erroneously advised by some lawyer to have the buyer retain the part payment while giving complete possession of the shop to the buyer and also without having any clause in the sale deed entitling you to reverse the transaction in the event the society fails to get a lease deed in its name from MHADA
2. first of all, you have executed a registered document with the buyer and the terms of the sale deed are therefore binding on you. You cannot back out of that transaction now
3. secondly the buyer is given an option to cancel the agreement within 1 year if his name is not entered in society records. This is a discretion which is given to the buyer and is not a mandatory condition which is imposed on him that after expiry of one year and if his name is still not entered in society records, then he is bound to cancel the agreement and give back possession of the shop to you.
4. thirdly if you want to return the consideration which the buyer paid you then you cannot just pay him the consideration but you will also have to pay interest on the same. Because all this while, since the last 6 years, the value of the shop must also have gone up. So you cannot expect the buyer to take back what he paid you and then enjoy the shop with an appreciated value. That would amount to unjust enrichment.
5. i do not see any legal remedy for you in this case against your buyer. He is not at fault. He must not be prejudiced for the mistake which you committed. You voluntarily entered into the sale deed and agreed to take only part payment from buyer. It is not even your case that the sale deed was made to be signed by you under some undue influence or mistake or misrepresentation
6. you can at the least expect some assistance from the buyer who as a flat holder in the society building can file a suit, through you, for compelling the MHADA to execute a lease deed in favour of society, so that the latter can enable transfer of the flat to the name of the buyer. Obviously the expenses of such will have to be borne by you and you can take a POA from the buyer for the said purpose
1. Yes you can file suit against buyer to make complete payment as one year have been completed after which the agreement can be revoked.
2. the can take years to dispose off.
3. No you cannot get possession as court will grant stay on status of shop.
4. You should try that buyer take POA from you after making complete payment and transfer the shop on his name after the issue resolves.
