Possessetion of property
Sweety
(Querist) 20 February 2014
This query is : Resolved
purchaser bought the property in borivli mumbai in june 2013 which is duly registered and all payments made to the seller. however, seller is delaying the possession due to some or the other reasons. legal notice also sent but in vain.
pl suggest what type of a suit to be filed and in which court whether city civil court at dindoshi, goregaon or small cause court.
Devajyoti Barman
(Expert) 20 February 2014
Who are you, an advocate?
You regularly post queries on different legal topics.
Sweety
(Querist) 20 February 2014
yes, newly started practice
Devajyoti Barman
(Expert) 20 February 2014
File a consumer case where the developer has an office or where the flat situates.
If the seller is an individual and not a developer, then suit for specific performance of contract shall lie.
Learn fast.
Dr J C Vashista
(Expert) 21 February 2014
Even you can also file suit for possession.
Anirudh
(Expert) 21 February 2014
Dear Sweety,
Being a lawyer by now you should be in a position to go through the contents of the Registered Sale Deed.
The sale deed will definitely say the amount of consideration and whether the same has been paid or not.
Similarly, the Sale Deed will also say whether the possession has been handed over or not.
(Without such possession, what is the meaning of the Registered Sale Deed).
Please verify and come back.
Sweety
(Querist) 21 February 2014
entire consideration of 60 lacs has been paid but possession is not received till date by the purchaser.
Sweety
(Querist) 21 February 2014
its a case of individual seller
Anirudh
(Expert) 21 February 2014
You say duly registered. What is registered?
Rajendra K Goyal
(Expert) 21 February 2014
File suit of possession with damages.
Guest
(Expert) 21 February 2014
Dear Author, Sale Deed need not Compulsorily mention about Possession.But it would be assumed that Once the Sale Deed is Executed the Possession to be handed over.In Many Cases the Sale Deed would be Executed with Existing Tenants and it would be the head ache of the buyer.In your Case Who is the Present Occupant.So You Better File a Case of Eviction including Seller as a Party.If Seller is the Occupant Directly File an Eviction Suit Against the Seller
Sweety
(Querist) 21 February 2014
seller is still in possession of premises.
pl suggest whether suit for specific performance alongwith prayer for possession would suffice?
in case of any other suit pl advice
Guest
(Expert) 21 February 2014
Eviction Suit
Dr J C Vashista
(Expert) 22 February 2014
I reiterate it would be suit for possession.
If you want to save stamp duty move a suit for permanent and mandatory injunction agsinst the vendor.
Anirudh
(Expert) 22 February 2014
Dear Dr. Vashista,
In the absence of clear facts being revealed by the author Sweety, in my view it will be too early to come to any conclusion - whether it will be a suit for specific performance or suit for possession - though it will fall under either of the two and no other.
The author Sweety has not cared to clarify as to what she means by saying 'which is duly registered'.
Let her take her own sweet time to come back.
Biswanath Roy
(Expert) 22 February 2014
The sale of the property has not been completed as yet. Because according to sale of goods act there are three conditions to be fulfilled no.1. there must be an agreement for sale either in writing or oral no.2 movement of goods from one chattel to another and no. 3. payment of valuable consideration. Here goods means both movables and immovables. In the present case only two conditions were fulfilled and one condition was not performed i.e.,movement of goods from one chattel to another, So it is a case for specific performance of the contract and as such Suit for Specific performance of contract attracts along with mandatory and permanent injunction over the property Side by side by another application appointment of a receiver can be prayed for.
Biswanath Roy
(Expert) 22 February 2014
The sale of the property has not been completed as yet. Because according to sale of goods act there are three conditions to be fulfilled no.1. there must be an agreement for sale either in writing or oral no.2 movement of goods from one chattel to another and no. 3. payment of valuable consideration. Here goods means both movables and immovables. In the present case only two conditions were fulfilled and one condition was not performed i.e.,movement of goods from one chattel to another, So it is a case for specific performance of the contract and as such Suit for Specific performance of contract attracts along with mandatory and permanent injunction over the property Side by side by another application appointment of a receiver can be prayed for.
T. Kalaiselvan, Advocate
(Expert) 22 February 2014
In my opinion a suit for specific performance may not be maintainable because it is an outright purchase by paying the full sale consideration amount and even if there was a a sale agreement, it terminates upon the execution of sale deed after registering the same by the vendor to the purchaser. Therefore a suit for possession and mandatory injunction would be a correct legal option/procedure.
