Transfer of property through gpa
Sunil Dhupar
(Querist) 09 September 2012
This query is : Resolved
I purchased a Lease hold property being Land and building thereon In NOIDA from a builder FIRM consisting of three partners named ABN ASSOCIATES (FIRM) . Such FIRM acquired property being Land from Lessor presently residing in USA though Agreement to sell and WILL executed by NRI in USA before consulate office and Noterized therein. Further such NRI Lessor executed GPA in USA in Oct,2010 ( before SC judgement In Suraj Lamp case Dated 11/10/2011 ) before consulate office and notorised therein in the name of one of the FIRM Partners wife who is Indian resident . Such GPA stamped in Noida by paying Rs 50/- in November, 2010 . FIRM constructed the building thereon such land and obtained completion certificate from Noida .
I purchased such Land with Building thereon . NOIDA authority would give Transfer permission to GPA holder to execute transfer on behalf of NRI directly in my favour without any reference to FIRM M/S ABN ASSOCIATES. Now I have taken bank housing loanAnd bankers insist that Registration of Lease be executed through beneficial owner I e ABN Associated who will be paid part consideration by Bank on the date of Lease otherwise transaction is not 100% legal and would be voidable since payment are given to FIRM but Lease Cum transfer Deed are executed on behalf of NRI Lessor by Indian resident GPA holder who is not beneficial owner .
however, builder FIRM states that in all cases in NOIDA the transaction are executed in this manner only . please note NOIDA does not permitt Tripartite Transfer of property .Hence only Transferor and Transferee name will appear in Lease cum Transfer Deed and on TM given by NOIDA
. Our problem is that if we take TM in FIRM name first TM charges and stamp duty for execution of Lease cum Transfer Deed in the name of FIRM , will cost considerable amount to Builder FIRM and subsequent TM in my name and same Stamp Duty registration charges to be paid by me . hence two times charges would be made without getting any fruitful gain .
please Advice
1. whether transaction executed through GPA on behalf of NRI who is not beneficial owner and consideration paid to a BUILDER FIRM would be a legal transaction or not , Bank says it is Voidable transaction .
2. builder has suggested that we should first get the property transferred by obtaining TM fromNOIDA and get the Lease cum Transfer Deed executed through GPA in my name but make payment to FIRM and afterwords take refinance Housing loan from Bank . whether bank would be safe in this regard and would recognise Such Lease cum Transfer Deed and would give the loan or not .
3. Whether my title to property would be legal and 100% safe , if I take property by circumventing the First transfer in Builder FIRM name and my Lease cumTransfer Deed says that payment made to Builder FIRM without making them as the confirming party , and Transfer executed by GPA holder on behalf of NRI Lessor since Tripartite Agreement are not permitted by NOIDA
4. SC judgement in Suraj Lamp case says in Point no 17/18 says that "Nothing prevents affected parties from getting Registered Deeds ofConveyance to complete their title. The said SA/GPA/WILL transactions may also be used to obtain specific performance or to defend possession under section 53A of Act. If they're entered before this day , they may be relied upon to apply for regularisation of allotment/Leases by Development Authorities."
In this regard , please clarify that regularisation is permitted to SA/WILL/GPA holder to complete their transaction and regularise Lease , but in this case how NOIDA is permitting GPA holder to executed transfer on behalf of NRI Lessor to some third party directly . As per SC Judgement it is the Builder FIRM who holds SA /WILL who is only entitled to get the property transferred in his name , hence , permission by NOIDA to GPA holder to transfer property in my name directly would be illegal as per SC judgement as suggested by law officer of Bank to me .
5. what should be the best alternative in this case in order I should get clear and marketable title and Bank should also be satisfied and get good title to fund Housing Loan and Builder should also not incurr extra cost on TM and Stamp duty ,which goes in drain ,if incurred twice .
Regards
CA Suneil Dhupar
ajay sethi
(Expert) 09 September 2012
you can afford legal fees . contact a local lawyer
