Recover of money paid to builder.
Ramesh
(Querist) 24 November 2011
This query is : Resolved
Sir, i entered a sale agreement to purchase three villas and two apartments with a proprietary and private limited company respectively and i paid entire sale consideration of 1cr and 20 lakhs respectively, and the condition was the builder shall deliver possession at the end of three months, if fails he shall refund the entire adavnce amount along with 12.5% as compensation for non performance and damages.
whereas builder took three terms i.e.,9 months additional time under the supplemental agreements, finally cancellation agreements executed on 24/10/11 and issued cheques for the entire advance amount along with 37.5% as the damages.
Now a days i tried to contact but builder to inform that i am going to deposit the cheques but he is not responding and avoiding me, finally i came to know he is hospitalized for stroke.
Shall i go ahead with depositing the cheques and thereafter prosecute under section 138 or shall i wait for his recovery and the take legal action?
since he is proprietor for the firm and director of the limited company, let me please advice how shall i proceed.
yours sincerely.
Ramesh
Devajyoti Barman
(Expert) 24 November 2011
You can wait but not more than 6 months.
After that you can file cheque bouncing case as well as catena of other cases.
Khaleel Ahmed Mohammed
(Expert) 24 November 2011
Present the cheque for payment. If the banker dishonor the payment, take necessary legal steps immediately. It is further advised that,it is better to consult with your local lawyer with all agreements which has been executed.
Advocate M.Bhadra
(Expert) 24 November 2011
Immediately deposit the said cheque to the bank and if it would bounced then you can send a legal notice and a file a case u/sec.138 N.I.Act.But better option for you to file a suit for Specific Performance of Contract which is civil nature may binding of legal heirs, since the Builder is under serious condition and view of this circumstances if he died then it would be problem to recover the money from the case under N.I.Act, which is Criminal case have no liabilities may be impose on legal heirs and successors.
Ramesh
(Querist) 25 November 2011
As Mr Bhadra's option I file specific performance of contract suit on "cancellation agreement", without depositing the Cheques?
can i claim the compensation with interest for the damages proportionately until the suit is decreed?
Raj Kumar Makkad
(Expert) 25 November 2011
You can claim but it shall depend upon the final verdict of the case.
prabhakar singh
(Expert) 26 November 2011
You should not wait for any thing and must deposit the cheque for collection.In case it bounces serve notice u/s 138 of NI Act.If notice is not complied with in 15 days again do not wait file criminal complaint under section 138 NI Act as well as a civil suit where you are advised to seek attachment of immovable properties of your opponent.
Ramesh
(Querist) 27 November 2011
Thank You Prabhakar singh Sir, first i try to meet personally, if they didn't entertain me , i follow as your guidance.
