Sirs, Plaintiff Mr. Madhav purchased Flat from Mr. Jayesh vide M.O.U. Because of disputes he filed R.C.S. for injunction & declaration against Mr. Jayesh and Secretary of the society Mr Ramesh. The said suit is pending. In the suit COURT granted STATS QUO ORDER in the year 2008 which was extended from time to time and then Exhibit -5 was allowed in 2014 in favour of the Plaintiff But in spite of above, third person Mr Rajesh (brother of Mr Jayesh) sold the Flat in the year 2009 and therefore the Plaintiff filed application U/O.39 R 2A of CPC against both defendants Mr Jayesh and Mr Ramesh which is pending. Latest developments :- Before about one Month while sorting out papers, the Plaintiff got proofs that the copy of the status quo order was also served to the chairman of the society and he had received the said copy. It is pertinent to note that the chairman is the M/s. XYZ builder who is builder of the said society wherein the suit Flat is situated. Most important is that the said chairman (Builder) is the confirming party along with Mr Rajesh (third person) in the aforesaid sale-deed of the Flat. . Query :- Whether in such situation such an act of the builder (chairman) comes under the purview of the section 409 of IPC being criminal breach of trust If yes then whether complaint u/s. 409 must be filed against M/s. XYZ builder alone or it should be filed against all three M/s. XYZ Builder, Mr Jayesh and Mr Ramesh as well. also guide further strict actions against them Please guide HARIOM
Take out contempt of court proceedings against Mr Jayesh ,Mr Rajesh as inspite of status quo order flat has been sold and transferred in society records
as far as criminal case is concerned order was passed in 2008 and you want to file case in 2020 . How do you explain delay of 18 years in filing criminal case
Sec 409 shall not be applicable in this case.
Inform court of violation of status quo order.
File contempt petition in high court.
Sir ji The secretary and chairman of the society are the custodian of the society and specifically appointed to maintain the records of old and new members and protect them for illegal sale and inform the proper authority in case of illegal sale of flat. BUT in the present case the chairman himself has not only given consent but he himself is a confirming party in the sale-deed whereas he was legally duty bound to protect the said flat once he came to know that the said flat had been purchased by somebody being the Plaintiff and the Court has ordered for not alienating the said flat and to maintain status quo in respect thereof and the suit was pending. Sir in this regard the plaintiff have already taken out application Under Order 39 R2A of CPC against the owner (Mr Jayesh) and secretary but at that time the Plaintiff was not knowing that he had sent copy of status quo order to the chairman also, so he was not made party therein As far as limitation clause is concerned : - The offence under section 409 of I.P.C. may be punishable for a term which may extend to ten years and the section 468 of Code of Criminal Procedure, 1973 provides for no time limit for filling complaint of such an offence. In view of above Query :- Whether such an act of the builder (chairman) comes under the purview of section 409 of IPC being criminal breach of trust If yes then whether complaint u/s. 409 must be filed against M/s. XYZ builder alone or it should be filed against all three M/s. XYZ Builder, Mr Jayesh and Mr Ramesh as well. also guide further strict actions against them Please guide HARIOM
Although there is no limitation for filing complaint under section 409 IPC the long delay in filing complaint after 12 years may go against you
further civil case is already pending in court .
you have taken proceedings for setting aside sale as it was done in violation of court orders
How society can sell your flat?
A society can never be a custodian of your flat.
It has some authorities but not to sell your flat.
If such thing happened then such sale is totally void in law. Take order from court to declare the sale void. And claim compensation.
Sec 409 will not be applicable unless you entrusted your societies with your property. Have you done this? By some legal documents? If not then such wrong shall not attract Sec 409 IPC
1, Yes, it can be considered as criminal breach of trust.
2. Police complaint/criminal case can be lodged/filed against all the mentioned persons alleging criminal breach of trust. A complaint/case for cheating also can be lodged/filed against them and appropriate section added wh the above case.
1. The chairman will be charged with the allegation of not complying with the Court order and also for being an accomplish of the cheaters.
2. The complaint u/s409 of IPC should be lodged against all the mentioned parties.
1. The chairman will be charged with the allegation of not complying with the Court order and also for being an accomplish of the cheaters.
2. The complaint u/s409 of IPC should be lodged against all the mentioned parties.
It is reported that the proeprty was sold by a third party in the year 2009 and a petition under O.39 r 2a CPC was already filed by the plaintiff before the civil court, any criminal complaint against a party who was not impleaded as necessary party to the said petition at the time of filing the said petition, may not be maintainable.
The relief for the grievances against parties for the disobedience of the court order has already been sought by the aggrieved party by filing a petition under O.39 r 2a - CPC.
The aggrieved party has to pursue the matter through the pending suit itself for all the desired reliefs.
The president of the society is not the custodian of the property in the capacity of the president.
In case the information of illegal sale of flat comes to his knowledge through reliable sources with concrete evidences, then as a president he may not give NOC for transferring the share certificate and he may ask the party to sort out the problem legally to legalise the sale. He cannot stop a owner from selling his property.
However if there is a court order instructing the president to maintain status quo and the same has been properly notified to the president of the society, then he may be liable for legal action for violating the court orders.
In my opinion the provisions of section 409 IPC may not be applicable to this situation.
The plaintiff has not notified the president about the court's restriction order, then the plaintiff has to suffer due to his mistake, he cannot take any action against anyone through a criminal law since he has already initiated legal action against those who violated the court order and sought remedies through civil court.
You may discuss in detail about the possibilities of filing the criminal complaint and then take a wise decision.
Dear Sir/Madam,
You are suggested that the said acts are not only under section 409 of IPC but also under the contempt of court and you may proceed accordingly.
Against all it will be filed
