Jayanti Devi (Student) 16 June 2025

Civil money suit

Developer has made an agreement with plaintiff/buyer for an understanding construction flat for which developer has received advance payment.

but buyer has cancelled agreement as per cancellation clause and requested refund of amount after deduction as mentioned in agreement cancellation clause.

developers lawyer has admitted and agreed to refund but actually not refuñded.

hence buyer/plaintiff has filed money suit in appropriate civil court requesting for money refund with interest only.

however, civil court proceedings are very slow and the standard "tariq pe tariq" is going on without any hearing...

now, question here is if the developer/defendant now sells off the flat to another person and gives away possession to another buyer, can the existing buyers money refund be executed after order passing ??

it might take 2 years to bring out an order for money refund from court but in 2 years developer might finish construction and handover flat to another buyer..

now, question is what legal steps can current buyer take to stop the sale and posession of the flat to any other buyer ??

can a separate petition be moved for stop sale /stop possession on that flat at this point of time in the same court ?

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Advocate Bhartesh goyal (advocate) 16 June 2025

File petition u/order 38 rule 5 read with sec 151 CPC in present suit and get order of attachment of defendants property till the decision of suit/case or to furnish bank guarantee of similar suit amount.

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 ) 16 June 2025

Filing a Petition under Order 38 Rule 5 CPC To secure the plaintiff's interests, you can file a petition under Order 38 Rule 5 of the Civil Procedure Code (CPC) seeking an order of attachment of the defendant's property or a bank guarantee. Key Requirements -

*Threat to dispose of property*: The defendant must be likely to dispose of or remove the property from the court's jurisdiction to obstruct or delay the execution of the decree. -

*Prima facie case*: You need to demonstrate a prima facie case in your favor. Procedure

1. *Draft the petition*: Prepare a petition under Order 38 Rule 5 CPC, stating the grounds for attachment and providing evidence to support your claim.

2. *File the petition*: File the petition in the court where the main suit is pending.

3. *Serve notice*: Serve a notice on the defendant, allowing them to respond to the petition. Attachment Order or Bank Guarantee - *Attachment order*: If the court grants the petition, it may order the attachment of the defendant's property until the decision of the suit.

- *Bank guarantee*: Alternatively, the court may direct the defendant to furnish a bank guarantee for a similar suit amount.

Importance of Legal Counsel - *Consult a lawyer*: It's essential to consult with a lawyer who can guide you through the process, help you prepare the petition, and represent you in court.

By filing a petition under Order 38 Rule 5 CPC, you can take proactive steps to protect your interests and ensure that the defendant's assets are not dissipated or removed from the court's jurisdiction.

balas (Chartered) 16 June 2025

Respected Legal Members Mr. Bhartesh G , Mr. Rama Chary,

A quick query in the subject wrt to proposed line of legal actioning. As the buyer has cancelled the purchase agreement and seeking refund, trigger being cancellation of the agreement, how can he petition for stopping the developer from selling the property, which may be the only way to repay the cancelled buyers debt and will Courts be able to pass such an order restraining from selling a property whike the buyer himself has opted out. I guess only a Bank Guarantee to secure monetary interest at best can be pleaded. Pls correct me.

Regards

Balaji S FCA ., LL.B.

Civil money suit

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