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Tarachand   08 July 2017

Consent terms in rcs

Sir/Madam

I want to make one consent terms in Court in RCS on following issues

 

Background Facts

Actually Mr B had taken loan of Rs.40,00,000/- from Mr A and used somewhere else and did not repay back to Mr A 

Hence Mr C had to came forward to help Mr B because they Mr B and Mr C are partners of a Partnership Firm  namely  M/s. B & C Associates

And then NA land which was property of Partnership Firm namely M/s. B & C Associates was mortgaged to Mr A in 2014

As on 01-01-2015 the loan amount was 40,00,000/- and Mr A field RCS against Mr B , Mr C and the said Partnership Firm

Mr A                                                    Plaintiff

                        V/s.

Mr B                                        )

Mr C                                        )          

M/s. B & C & associates      )           Defendants

 

In 2015 Mr B approached to Mr A (Plaintiff) and requested to Mr A to allow them to enter into Development - Agreement with some third party who will develop the said NA Land and then sell it and accordingly they (Mr B & C) will pay the loan of Mr A out of the sale-proceeds and as soon as the whole loan amount along with interest is repaid back to Mr A then the said NA Land will be automatically free from his Mortgage

But Mr A refused in 2015 and thus 02 years have passed

Now after 2 years  the Loan amount increased to Rs. 50,00,000/-

 

Present Development

Now Mr A decided to agree with Mr B and Mr. C

Hence they all agreed to make consent terms in Court in the RCS on following conditions :-

  1. Mr A will allow these defendants to develop the said Plot by themselves or through Development Contractor/s (Agents) and further allow them to effect sale of the said NA Land (in part thereof and/or plots on the said Land or any constructions made thereon in full or in part) with condition that 50% of such sale amount will be deposited in Nazir Office of Court on 30th of every Month towards repayment of the said Loan of Rs.50,00,000/-
  2. But minimum payment of Rs. 5,00,000/- per month shall have to be deposited in the Nazir office of the Court by these Defendants irrespective of amount of sale effected in that month.
  3. Thus in Maximum 10 months i.e maximum by 30th May 2018 the said loan of Rs. 50,00,000/- will be paid and thereafter Mr. A will neither have any charge or claim on the said Land nor any claim against Defendants
  4. However, if the said Loan of Rs. 50,00,000/- is repaid fully before 30th May 2018 by way of depositing 50% of total sale-proceeds + Monthly installamnets as mentioned above then as soon as the Loan amount of Rs.50,00,000/- is repaid then the present consent term will be complete on that date and Plaintiff (Mr. A) will have no charge or lien on the said NA Land and will have no claim of whatsoever kind against these defendants.
  5. It is necessary for Defendants that details of the present consent terms shall be disclosed to third persons before dealing in the said NA land by way of mentioning details of consent terms in the Sale –Agreement of the said Land (or part thereof and/or plots on the said Land or any constructions made thereon in full or in part) with third persons.
  6. Here Sale Agreement means, refers and will include any and/or all instrument/s made and issued by M/s. B & C Associates and its partners or by their development contractors to the third person/s vide which they receive / will receive money in any manner with respect to the said NA Land
  7. Mr. A will continue to have his charge/lien on the said NA land and construction made thereon till his whole loan of Rs 50,00,000/- is repaid in toto and as soon as the aforesaid loan of Rs 50,00,000 is paid then automatically all types of charge/lien of Mr A will be null on the said NA land and /or constructions made thereon and Mr A will have no claim on whatsoever nature and of whatsoever kind against the defendant and all other promsory Notes, pronotes and Post Dated  Cheques and undated Cheques and other letetrs and Guarantee given by these Defendanst to the Plaintiff will stand canclled and null and void and use thereof shall be illegal.
  8. In case of three defaults of installment of minimum payment of Rs. 5,00,000/- per month, Mr A will have discretionary right to terminate this consent term.
  9. All parties agree, accept and admit that till the said loan is fully repaid , Mr A. (Plaintiff) will not make any other dealing with these Defendants of whatsoever nature outside the scope of this consent term without prior permission of this Hon’ble Court and breach of this conditions will give discretionary right to other side to terminate this concern term.
  10. The minimum sale price will be Rs. 270 pre square feet of open NA land.
  11. The Defendants are required to furnish true statement of account in details of all sales/dealings of the said NA land as above before this Hon’ble Court by 30th of every month.     

Is it correct or if need any change kindly guide

HARIOM.



Learning

 3 Replies

Siddharth Srivastava (Advocate)     08 July 2017

Terms of settlement is sufficient but it is advised to delete the conent where B& C will be required to disclose this settlent to third party as it would prejuice the interest of B & C.

Tarachand   09 July 2017

Yes Shrivatav ji

You are correct

But Plaintiff is afraid that one of the Defendant who is notorious person, he may collect money from innocent persons without disclosintg these facts to them and thus general public may have some adverse effects on them if he collects more than the capacity of the said NA Land 

However please send your valuable opinion

Thanks

HARIOM

Siddharth Srivastava (Advocate)     09 July 2017

You may put condition that in case of sale all three parties shall sign jointly and the sale proceed shall be deposited in ESCROW account from where a lum sum amount shall be paid to "A". You may consult personally. 


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