• Bungalow possesion required back, as consideration cheque bounced

Respected lawyers,
I am dr rahul,from mumbai,
I humbly seek your advice,as one person, who is builder by profession has not paid my full consideration amount for potential sale of my bungalows,since 6 years,have taken possession by giving my  cheque's, which bounced,due to insufficient funds.i have prepared a small complaint draft,and also wish to issue public notice that i am the property owner as i am actually the property owner as we have signed an notarized mou for the potential sale in 2010, and in 2011 we signed notarized documents to register and transfer property ,after recieving  full consideration amount ,but since the full amount was not paid, hence we did not register the sale deed ,niether transferred the property. after 6 years , the value of property has increased from 1.74 cr to 6 crores.i would like to pay him back his 90 lacs and get my property back,or he should pay me the amount as per new agreement price which is  accepted by me..what should i put in the public notice in news paper and what should be my approach forward, can i sell this property to third party,or take loan against this property.k,he put false notice that he is owner of the property he has served me a notice , i have replied back,he also published a public notice, falsely claiming that he is the owner of this bungalow and have purchased the same from me .
The pi(crime)/officer on duty,
Police station,
Subject-registration of first information report,cognizable offence under appropriate sections of criminal law,as per the evidence provided,against accused mr.......... and mr .......- regards,bungalow consisting of ground plus 1 upper floor  admeasuring........built up area,situated on plot no.........................admeasuring.........sqmetres.built up area being part of survey no................,borivali west,mumbai  the registration and subregistrar district of mumbai suburbs.

Forgery with intention to cheat,fraud, cheating ,breach of trust,conspiracy and tress passing against mr ...... and ........

Respected sir,
I am ...... and  ........,age 46 years and 45 years respectively,resident of .......,mumbai 53,and having our bungalows
At plot number ......,borivali west,mumbai 400091
 and  plot number .......borivali west,mumbai 400091,respectively.
Above bungalows are owned by us-exhibit1 shows proof of the same.
States that
We state that,
As per memorandum of understanding dated 2nd november 2010 signed between us and the accused and non registered documents for subsequent registration on 15th june 2011.subject to payment of the full and final consideration amount by the accused ,latest by 30th june 2011.failing so,as per the mou,clause9,we will have right to sell our property and only than pay back the amount payed by the accused.
The total deal was for rs one crore seventy four lacs,as per property valuation in 2010,which is subject to increase as per the actual date of registration of the above said bungalows ,which includes home loan balance amount when paid as per actuals.
This did not include emi's of rs 84500/ per month,which accused had agreed to pay till they do not clear the citibank home loan amount,which they cleared,only in march 2015..the property value as per today,july 2015, is approx rs 6 crores

The accused fraudently took possesion of the above said bungalow,by giving 2 cheques of rs 52 lacs each,and prepared the documents for registration, on clearance of cheques.(exhibit 2 are the copies of cheques and copies of negotiable instrument act case against the accused, who took bail from borivali court on 20th june 2015.).alue of the property and balance amount was promised by the accused to be given at the time of registration of the property,and clearing all the dues of mhada, bmc etc.
, one cheque was deposited of rs 52 lacs( )  , but it bounced due to lack of funds,the accused than said , they are unable to get bank loan,and hence need more time.the other cheque(  ), the accused communicated  earlier and asked us, not to deposit , as they have no funds in the bank.
We served legal notice to the accused(attached as exhibit 3) to,immediately, within seven days from receipt of the notice,pay the balance due amount by demand draft in favour of ..........  and ........as per the notarized mutually signed signed mou,dated    2nd november 2010 plus appreciated value of property,plus double the amount of bounced cheque with legal expenses.
Legal notice cleary stated that,if the accused fail to make the necessary payments within next seven days, we the complainants , will have right to take, loan against this property or sell the property to the third party as per clause 9) of the mou,and only than without interest pay the partial payment paid by your clients of rs 50 lacs in 2009/2010 and rs 4012455 in  march 2015, directly to the citibank by another bank .
Legal notice clearly mentioned that,we will initiate appropriate  criminal complaint against  the accused,with the police station of the jurisdiction for the offence of cheating, breach of trust, tresspassing     and fraud.
In the mean time ,the accused committed a serious crime ,by publishing a false public notice in the newspaper , free press journal ,dated27 /07/2015(attached as exhibit 4),did forgery with intention to cheat, claiming in the public notice ,that he is the owner of the above mentioned bungalows,and have  purchased the same from us.

Kindly register an f.i.r against them ,,as per the criminal law sections ,as per the evidence provided in our complaint,we live in a rented apartment,as the accused have fraudently taken possesion of our home since 2011.
Complinant 2)
Asked 3 years ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) it is necessary to peruse the terms of MOU signed by you with the builder to advice 

2) from the facts stated by you it appears that builder has defaulted in making payment as terms of MOU 

3) it appears that no  registered sale deed has been executed by you in favour of the builder 

4) however since builder has been placed in possession you would have to move court for recovery of possession from builder on account of failure to make payment as per terms of MOU 

5) you have already filed cheque bouncing case on account of dishonour of cheques

6)you can also file criminal complaint of cheating against the builder for failure to make payment and for dishonestly inducing you to deliver possession of bungalow to him 
Ajay Sethi
Advocate, Mumbai
46692 Answers
2763 Consultations

5.0 on 5.0

1. You have worked hard by drafting the complaint, but this is not required as police has no legal authority to intervene in a case of this nature. The legal recourse which can be adopted by you to address the wrong which has been done to you, lies only before a court of law.

2. Since the sale deed has not been registered by you the ownership has not passed to the builder. As a corollary thereto, his possession of your property is without the sanction of law. You are required to file a lawsuit for his eviction from the properties owned by you. Before going to court you may issue a lawyer's notice to him.

3. Publishing a notice in the newspaper will be an exercise in futility as no rights can be claimed under it.

4. If the property is not in your possession you will not be able to sell or take loan against it.
Ashish Davessar
Advocate, Jaipur
23120 Answers
639 Consultations

5.0 on 5.0

1) file complaint of cheating criminal breach of trust against the builder

2) you will have to simultaneously move civil court for recovery of possession of the bungalow and claim mesne  profits from builder for unauthorised occupation

3) it is necessary to peruse case papers and entire correspondence as to whether you can sell bungalow to third party or not 
Ajay Sethi
Advocate, Mumbai
46692 Answers
2763 Consultations

5.0 on 5.0

1. Would you purchase a property which is owned by A but in illegal possession of B? If you purchase it you will have to initiate the legal process to evict B, which would require investing a lot of money in commencing the legal battle.

2. At the time of conducting due diligence, the bank will ascertain whether the possession is with you or not. Under no circumstances the loan will be sanctioned if you do not have the possession.

3. I repeat that your recourse is only before the court. Do not waste time going to police as further delay may foreclose your actual legal recourse.
Ashish Davessar
Advocate, Jaipur
23120 Answers
639 Consultations

5.0 on 5.0

A property sold by an MOU which has been notarised but not registered is not at all valid in the eyes of law.  If the sale deed has not been executed and registered then the sale cannot be held as legally valid and law has no answer for illegal issues except to punish the offender if found to have forged or fabricated the documents for wrongful gains or for grabbing the land/property illegally. 
You can file an injunction suit restraining him from interfering with your peaceful possession and enjoyment of the property. 
T Kalaiselvan
Advocate, Vellore
36859 Answers
403 Consultations

5.0 on 5.0

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