Unregistered agreement to sell, order 6 rule 17, consumer courts powers to give stay.
Shadab Parvez
(Querist) 28 January 2014
This query is : Resolved
I have an Agreement to sell entered in the year 1988 with a pvt ltd company for purchasing a plot in noida village abadi area, executed at Delhi office of the builder company.
I have paid full payment in installments and final payment was paid in the year 1997 for purchasing this plot. Various letters were issued by the company between 1988 & 1997 about progress in obtaining approvals from housing authorities.
I filed 3 cases against the builder in 2004
1.Suit for specific performance in Noida
2.Complaint in consumer court in Delhi
3.Criminal complaint under section 420 IPC in Delhi
When I filed case in Consumer Forum I only prayed for order of compensation from the builder and not possession of plot. At the stage of final arguments of this case i filed an Amendment application under order 6 rule 17 cpc for amending Prayer clause to add delivery of possession of plot from the builder or in alternative compensate as per circle rate of the area.( Application is pending )
I was depending on my suit for specific performance for delivery of plot but now i have come to know that in uttar pradesh agreement to sell are compulsorily registrable document since 1977. So no hope of getting plot from builder in that case.
Now my only hope is the consumer complaint case for getting plot from builder.
Dear Experts I need your esteemed opinion on this case on these points :
A. Is the application under order 6 Rule 17 only for amending the Prayer Clause of my complaint, is maintainable at the stage of final arguments please also provide supporting judgements ).
B.Does the consumer forums have power to order builder to give possession of plot to consumer when full payment has been paid.
C. Can consumer forums give stay ordering builder not to sale case property because the builder has now started selling the plots but i have no proof of that except site photographs.
D. Does I have any scope in the suit for specific performance in noida considering the fact that agreement to sell was entered in Delhi.
E. Can I pay stamp duty after 25 years on this agreement to sell.
F. Also what are the other things i can do to get plot from the builder.
Shadab Parvez
(Querist) 29 January 2014
Thanks a lot sir for answering my query.
Please also provide the supporting judgments if any available, on these points.
Devajyoti Barman
(Expert) 29 January 2014
1. i do not think at such advanced stage the amendment prayer would be allowed though there is no legal bar.
2.yes
3.yes
4.yes if the property is in delhi.
5.yes if the agreement is impounded by court.
I think your suit is barred by limitation in consumer forum . More so when a civil suit on self same issue is pending.
Anyway best of luck.
Rajendra K Goyal
(Expert) 29 January 2014
Well advised, agree with the expert Devajyoti Barman ji.
ajay sethi
(Expert) 29 January 2014
your case before consumer forum is placed for arguments . at this belated stage it is doubtful whether your application for amendment of complaint would be considered by consumer forum . the forum can direct builder t give possession of plot if you have claimed such reliefs in your complaint . you can be granted injunction restraining builder from sale of plots to third parties .
J K Agrawal
(Expert) 29 January 2014
I agree With Mr Kalaiselvan but Mr Barman could not be ignored.
It is true that property is in UP but the agreement was in delhi. when an agreement is executed out side the territory, it is open to make up duty when used actually in the state where it relates to. Actually your stamp is of Zero value as it is stamp of Delhi whereas you require a UP Stamp. So take it as 'payment of stamp duty of UP is pending still' and you have right to make it up perhaps at any time when it is 'used' in UP. The use is still pending so the payment of stamp duty is possible. Please have faith in your advocate and do some more exercise over the case.
Now the Question of registration comes. Your case have some specialty. You have paid entire payment and only registration of sale document is pending. In such a case you need not to go to court and obtain a decree of specific performance. (It is required when some payment is pending and you are ready and willing to pay but the seller is not. Your case is not as such.) The sale is already over and final as soon as you have paid the entire money. Only thing pending is to hand over possession to you and give to you an acknowledgement, a bill of sale of the goods, an acceptance that he has sold the plot to you. The registration of the so called acknowledgement or sales bill or the acceptance is known generally as 'SALE DEED'. Its registration is an administrative process only. It is a clerical job only. For this job only, no court order is required. The registrar is duty bound to do it. A so called 'sale deed' with only signature of you will do. Do you ever heard about 'Purchase Deed'? No? Make a purchase deed and produce it for registration. What make it different that it is a sale deed or a purchase deed. The both are the same.
You may find my words out of wits. May be These words are not in practice but these words are correct. One day you will find a clear citation of the Apex Court on same wordings.
The registrar himself has a right to summon up the seller, to execute the sale deed. If the seller does not turns up back, the Registrar himself can execute a sale deed on behalf of the seller.
In this regard you must refer to citation 'S Kaladevi v R Somasundaram AIR 2010 SC 1654'.
You are paying installments and the seller is accepting the same again and again then how can they deny agreement or its consideration?
One more idea is not bad.
If once it is proved that seller has taken amount from you, he is liable to make good to you even if the specific performance is not allowed. In such a case, your loss is equal to present market value of plot. you can claim damages in the same suit, filed by you, as an alternate plea, at the current market value if proved the same by you.
It may be noted that the Alternative plea for damages in lieu of specific performance is allowed by law even after arguments and even after the Judgment and even at stage of Appeal.
Shadab Parvez
(Querist) 29 January 2014
Thanks a lot Mr Barman for your precious advice.
I would humbly request you to kindly elaborate on the point that how can i be ordered by the registrar or concerned authority to pay stamp duty after impounding of document even after passage of so much time, because in my suit for specific performance on the last date of hearing the opposite counsel mentioned that he wants to move an application for impounding this unregistered agreement to sell.
could you also please provide supporting judgements on this point.
Devajyoti Barman
(Expert) 30 January 2014
The agreement is required to be impounded as the sale agreement which is a compulsorily registrable document can not be taken into account unless the deficit stamp duty is paid. Only on its payment you can rely on the sale agreement.
The passage of time is no issue as long as the document is relied on it has been impounded.
However,you may not rely on it if the opposite party admits its contents which is unlikely.
Dr J C Vashista
(Expert) 30 January 2014
The application under order 6 Rule 17 only for amending the Prayer Clause of complaint is maintainable.
B.Yes, the consumer forums have power to direct the builder to give possession of plot to consumer, when full payment has been paid.
C. Yes the consumer forums restrain the builder to sale the property (it cannot he termed as "case property"), even if you find the builder has started selling the plots and you have no proof of that except site photographs.
D. Definatly you have all the scope in the suit for specific performance in Noida, since the property is located in Noida, even if agreement to sell was entered in Delhi.
E. You cannot pay stamp duty at this stage, ie., 25 years after execution of agreement to sell.
F. File complaint u/s 406/420 IPC.
Shadab Parvez
(Querist) 31 January 2014
Mr J K Aggarwal thanks a million for your valuable advices. I am sure I would not have got such helpful advice even after spending money and lots of time.
Sir I will definitely look for the 'purchase deed' option and discuss it with the people doing registration work in Noida. Though I could not find any law dealing directly with the purchase deed .
In my suit for specific performance I have already claimed damages but not at market value so I will move an amendment application for claiming damages at market value. As advised by you.
As you have made clear that stamp duty can be paid at the time of using this agreement to sale. But the question which comes to my mind is that if the stamp duty is levied at current market rate it would be very high in value because prevailing circle rate at the area is 18000 Rupees and the plot size is 400 sq yards. Please also throw some light on this issue also.
Sir I would thank you once again for answering my query in such detail and for keeping my hopes alive.
Shadab Parvez
(Querist) 31 January 2014
Mr Barman thank you again for your reply. In my cases the opposite party in its written statement has not disputed any of the contents of the agreement to sale and has also admitted all the payments made by us against receipts issued by them.
The only defence opposite party has taken is that the land is situated in the village abadi area and they are awaiting NOC from UP Government as such they cannot sale the land under UP Land and Zamindari Act till the colony is passed by the Government.
Shadab Parvez
(Querist) 31 January 2014
Mr Vashista Thanks a lot for taking time out for answering my queries.
Sir could you please provide judgements on all or any of the points because that will be helpful for me.
Shadab Parvez
(Querist) 31 January 2014
Dear Experts I am highly obliged And very thank full to you for your valuable Advices and quick response to my query. Really so much depends on the outcome of this case because even at the age of 75 years the buyer of this plot (my uncle) is doing a 9am to 8pm job for a salary of rupees 5000 only. Whereas the value of land has reached almost a crore now. He invested his hard earned money 25 years back so that his old age could be secured. Left with no other options we filed these cases and unfortunately we are now stuck in legal technicalities.
Lets hope for the best.
J K Agrawal
(Expert) 31 January 2014
'Law is such a mash in which small one's are caught and big one's break through.'
Keep faith with in you as well as in Almighty God. One day you will win the case. The hard earned money will be as hard to them who cheated you.
The God has justice for All.
Shadab Parvez
(Querist) 02 February 2014
Thanx Mr Aggarwal for your advices, wishes, support and concern for my case. I would definitely update the proceedings in these cases.
I request you and all the experts to please forward me any judgement, information or anything which can be useful or helpful in my cases .
Kumar Doab
(Expert) 02 February 2014
Learned Expert Mr. J.K.Agrawal has made brilliant observations and suggestions in detail, in this thread.
The learned experts Mr. Kalaiselvan, Mr. Barman, Dr.Vashista have made this thread worth reading, with their wise advise.
Heartfelt thanks and congratulations to all experts for bringing the thread to its logical conclusion and setting the course of direction for the querist and everyone.
Guest
(Expert) 10 December 2014
Well advised by Experts
Anirudh
(Expert) 10 December 2014
10 MONTH OLD QUERY.
THE NEW RIP WAN WINKLE HAS WOKEN UP!
THIS GOOD FOR NOTHING FELLOW IS TRYING TO RIDE ON THE EXPERTISE OF OTHER EXPERTS THAT TOO AFTER 10 MONTHS!
DESPERATION IS SHOWING ON THIS FELLOW.
This fellow cannot even be a last person one can consult for any advice.
This fellow is good for nothing. Many a times he gives advices which are not supported by law.
TAKE THIS FELLOWS FALSITY IN HIS PROFILE. THIS FELLOW ATTACHES MORE IMPORTANCE TO THE PROFILE, WHILE HE IS FILLING UP TOTAL FALSE HOOD IN HIS PROFILE.
please visit the following link:
http://www.lawyersclubindia.com/lawyers_search/N-J-S-Rajkumar-alias-narasimha-254519.asp#.VIcRwmeHPFx
where he claims that he is practising from 2001, while as already indicated by me, he was enrolled only in the year 2012!!! CAN ANYBODY PRACTICE BEFORE ENROLMENT? IF ONE DOES SUCH A PRACTICE IS HE NOT FIT TO BE CALLED A "FRAUD"?
N.J.S.Rajkumar alias narasimha's Details
Listed Under
Business Law
Civil Law
Criminal Law
Practicing Since
2001
Specialization
SEBI and SEBI RELATED CASES
Court
Others
Address
54,PARASURAMA EASWARAN KOIL WEST MADA STREET,AYANAVARAM,CHENNAI 600023
Other Details
rajkumar_wins@rediffmail.com 9444036927
Therefore, before taking advice, the querist should be too careful
T. Kalaiselvan, Advocate
(Expert) 29 January 2014
