Unlawful agreement to sell ...
tdeli
(Querist) 16 March 2013
This query is : Resolved
A took advance for a sale of property from B of which he never had any Title and only had paid advance to purchase that property from someone else.
A could not execute the sale of property as the title was never in his name thus he started returning the money back to B and also executed a MOU which was signed only by him unilaterally stating that he will return the money back to A and also mentioned details of 2 cheques that he had given to B.The witness on this MOU were same persons who were also witnesses to the first Agreement to Sell.
The 2 cheques bounced and B went into court and filed a criminal case against A u/s 138 regarding the bouncing of cheques but also attached the MOU where A had mentioned the details how he will return the consideration.
B also filed a Police complaint regarding the Illegal Agreement to Sell but the police refused to take any cognizance stating that as you have acknowledged the MOU and thus it has become a Civil matter now.
Has the case lost all the criminal act of A to sell a property which was never in the name of A, if B has acknowledged the MOU in court of law.
Thanks...
Devajyoti Barman
(Expert) 16 March 2013
File cheating as well against A.
If police refuses to register FIR then move Magistrate in petition u/s 156(3) crpc.
Raj Kumar Makkad
(Expert) 17 March 2013
The opinion of police is correct if the A has duly accepted the terms of the MOU and accordingly has accepted 2 cheques which got bounced and he got fresh cause of action to file criminal complaint, which is sub-judice.
Raj Kumar Makkad
(Expert) 17 March 2013
Otherwise also, it is the buyer who should be vigilant about the clear title of the seller prior to reaching any agreement to sale. The buyer cannot shift his lawful duty now after B failed to execute direct registered sale-deed from his seller. A might have refused to purchase such property wherein the other party to the contract has claimed his ownership just by way of his agreement to sale.
prabhakar singh
(Expert) 17 March 2013
Except a criminal action u/s 138 N.I.Act for those two bounced cheques,you hardly have any fact to implicate him in any criminal action as he had paid advance to purchase that property from someone else would be a solid defence to a criminal case of cheating.
tdeli
(Querist) 17 March 2013
Thanks ...
1.Isn't it criminal to take advance for a property through Agreement to Sell where the title of the Property is not in your name.Doesn't this lead to cheating u/s 420.
2. Doesn't this Agreement to Sell a forged document.
3.The MOU which stated about the debt and also the mode of return of the money was signed only by the Seller unilaterally and not by the Purchaser, though the purchaser has attached this document in his case u/s 138 of NI Act.The document was attached only for the purpose of admission of the debt by the Seller and the details of the cheques. Will this document signed unilaterally be binding on the purchaser as if he has agreed to the terms of the documents.
4.Can this document filed for the purpose of 138 on NI Act will wipe the criminal act commit ed by seller regarding the sale of house which never belonged to him .
ajay sethi
(Expert) 17 March 2013
before purchasing property purchaser is supposed to do due diligence . take inspection of orgiginal documents . then purchase the property .
if seller does not have any title to the property he has no business to execute agreement for sale of property . wht are averments on title to property in agreement for sale . does it mention that he has clear title to the property?
if it mentions that he has clear title to property and he is the owner he has clearly cheated the buyer
for MOU to be valid it has to be signed by both the parties
tdeli
(Querist) 17 March 2013
Thanks...
Yes he has clealry written in the agrreement to sell that he has the title of the property.
Now if he has cheated does this amount to a case u/s 420 OR
Filing of this MOU signed by only the seller and not by the purchaser finish of all the criminal acts done by the Seller if he has filed this MOU in his case u/s 138 of NI Act.
Has filing of this MOU changed the nature of case from criminal to civil case only now as suggested by the Police.
Thanks ...
