Parallel proceedings are maintainable or not?
Querist :
Anonymous
(Querist) 10 November 2009
This query is : Resolved
Respected Sir,
I filed a suit for recovery of an advance amount, on the basis of an Agreement of Sale, as I have paid 1/4th of the sale consideration amount at the time of execution of the Agreement of Sale (un-registered).
The main contention in this issue is” before issuing a legal notice the land owner (Vendor) has transferred the said schedule property to the 3rd parties and registered an “Agreement of Sale cum GPA” and possession was also delivered to them. But the same was not mentioned in his reply notice. It has come to my knowledge, only after filing of his counter pleadings in the above said suit. Immediately I filed a Criminal case u/s 420 of I.P.C. against the defendants/Accused, before the concerned court and the same was referred to the concerned police and the police registered a crime u/s 420 of I.P.C.
At this stage, what I came to my notice is, that the Public Prosecutor of the concerned raised an objection that the matter is in civil nature and Section 420 of I.P.C. is not applies in this regard. Now the police want to close the case accordingly.
So plz.clarify the following:-
1. Without canceling the existing an Agreement of Sale, how the land lord again go for alienation?
2. When the land lord himself declares/assures about the land “was not effected in any of the encumbrances, court attachments, prior agreements or any other issues” as narrated in the registered Agreement of Sale cum GPA? So is it not come under cheating?
3. If I want to go and arrest the defendants/accused, what i have to do?
4. In this I am not going for Specific performance of contract/Agreement, but I filed the suit for recovery of the advanced amount.
Raj Kumar Makkad
(Expert) 10 November 2009
1. As your agreement was executed first so you can get it executed through court by filing a suit for specific performance but i think u have filed a suit for recovery, which I think is not proper.
2. Definitely it is concealment of a fact but as it is a civil nature matter and specific law is available to deal with much matters so criminal case is not maintainable as held by Apex Court of India in various similar cases.
3. No arrest is possible in the given circumstances.
4. You must have filed specific performance suit which even involves recovery of amount.
bhupender sharma
(Expert) 10 November 2009
1. the offence under section 420 will not be succeeded as the cause of action arisen out of the agreement to sell which is of civil nature and therefore u may not press for 420.
2. not at all.
3. u are not supposed to take the law into your hand therefore u lodged your protest with the police.
4. File a civil suit for specific performance .
niranjan
(Expert) 10 November 2009
suit of specific kperformance is to be filed and you have to join lsubseuent pourchaser as party who could also be made liable forspecific performance. You have gone on kwrong track, rectify it.I agree with other learned experts.
Sachin Bhatia
(Expert) 10 November 2009
Go with the opinion of Mr.Raj
Querist :
Anonymous
(Querist) 11 November 2009
Respected experts, Namaskar.
Thanks for your valuable suggessions.
In this
1) As i ;am not interested to go for registration of the lands(due to my personal reasons) I filed a suit only for recovery of my advance amount, paid earlier, on the basis of an Agreement of sale. I know that a suit for specific performance is maintainbale only in case, if i am interested to take the lands.Whereas here i am not interested to take the lands.
2. As i want to know the findings of the Apex court of India as against the paralell proceddings. Plz.refer at least one citation in this regard, if possible.
3. If there is no law, no need to go for that.
4.In this present suit, which is pending before the court, what i have to do?
so plz.suggest me suitably.
Suhail suhail
(Expert) 11 November 2009
Well there cannot be any best reply than the one from My Learned Friend Mr.Raj.That is all ,and explained in a best of communication.
