Filed application under section 1/10 of cpc
SATYA PAL
(Querist) 04 June 2014
This query is : Resolved
With folded hands I seek your valuable advise and guidance on the following position :
The Owner of a plot and the residential house Builder entered into a Collaboration Agreement between both them stating that the Builder shall construct the Building with two flats (ground floor) and first floor flat and the Builder shall take the Second Floor (with Roof Rights) for his consideration of the Collaboration Agreement. Further, the agreement stipulates that the builder shall arrange funds from his sources. The Buillder approaches me and enters into an Agrement to Sell for Second Floor Flat (with roof rights) and starting taking money as planned. Practically, Builder does not completes the Construction and fulfill the responsibilities under the Agreement. The Owner of the plot takes possession of the Second Floor Flat which is planned to be given to the Builder as a consideration for construction of the Building. The Collaboration Agreement is not registered with the concerned Authority at the time when it was executed.
The owner filed a complaint with Police Station for not having completed the work in time. A three month's extention time was mutually agreed between the Owner and the Builder. The Owner was not happy and did not pay any heed to the request of the Builder. The builder filed a case in court of law for claiming possession under specific perfomrance of the agreement. I have paid more than what was scheduled to be paid under the "Agreement to Sell" and the balance was to be paid on complete and satisfactory transfer of the flat, which the Builder did not do. I was a loser and had to move forward to the gain possession of flat in whatever possession.
Since the work was not complete, the owner was also in touch with me. He opined that you take the possession. I moved into the flat and complete the remaining major work and incurred lacs of rupees. On the first date of hearing the case filed by The Builder against the Owner, I filed an application under section 1/10 of CPC for allowing me to make my submssions before the court. The Builder expired after filing the case in the court. The legal representatives have requested the court to be a party to the Case.
What is my status under section 1/10 of CPC under the above circumstances.
The case is titled between the Builder and the Owner. Should I also file a case against the Builder and Owner to consolidate my position.
Major Question : In case the Owner of the Building sells the newly constructed building, will the transfer of Title be genuine to the purchase. Shall I face difficulty in case the new purchaser asks me to get out of the top floor (second floor) Please advise no one can pass a better title than one has.
For your information, the owner has executed a general power of attorney in my name before the first date of hearing of the case filed by the Builder.
Please explain the scope of the Floor with Roof Rights.
Your valuable advice is solicited and this would help me in forming my course of action in the above case.
Advocate Ravinder
(Expert) 04 June 2014
You have paid some part payments to the Builder and apart from that you are in possession of the 2nd floor flat. Give the balance amount of consideration to the legal heirs of the builder and get it registered on your name. what is the problem. Kindly clarify.
Raj Kumar Makkad
(Expert) 04 June 2014
If the legal heirs of the deceased builder refuse to execute registered sale-deed in your favour after receipt of the balance amount of the agreement to sale, only then you should stress upon your rights through the process of court by filing a separate suit for specific performance of contract otherwise there is no need to inculcate yourself in the ongoing battle between the owner and the builder.
Rajendra K Goyal
(Expert) 05 June 2014
The agreement between builder and land owner is not registered and the title of builder on second floor is not confirmed, as a case is pending in the court. Till the case is decided the title of builder on second floor is defective. The registration from the heirs of builder is not free from risk till specifically confirmed under the original agreement between builder and land owner.
Consult a local lawyer and show him all the documents.
Biswanath Roy
(Expert) 05 June 2014
YOU ARE HEREBY ADVISED TO SEND A CHEQUE TOWARDS PAYMENT OF BALANCE VALUABLE CONSIDERATION OF THE FLAT IN TERMS OF THE AGREEMENT AND WHICH YOU HAVE BEEN OCCUPYING NOW WITH A FORROWARDING LETTER TO THE LEGAL HEIRS OF THE BUILDER FOR ITS ACCEPTANCE. DO NOT ENTER IN THE PRESENT LITIGATION BETWEEN BUILDER AND OWNER.
SATYA PAL
(Querist) 05 June 2014
Honourable Justices,
I hereby clarify that the flat was not complete and major shortcomings were observed. The owner of the buidling did not agree to transfer poasession of the second floor flat to the Builder. It was not prudent to make the balance payment (approx. 30%) when the flat was not complete and the time under the agreement had already expired.
I had to agree to the Owner and made some of the balance payment and spend some money on carrying out the painting/ defective roof top/ wooden door, grills and make the flat in habitable condition.
I am of the view that when there is a complete breach on the part of the Builder not honour the agreement, he is not entitled to the balance payment. The Builder has not disclosed the fact in his Petition against the Owner that he has entered into an Agreement to Sell to me and received money. He has contended that he constructed the building through his own sources and his mother is the only lawful person (through Will) to claim possession of the flat. The Builder has not honoured his terms of the Contract and he is not be honoured for this breach.
Since the world is materialistic, I was under coercion to agree with the Owner and make payment. Presently, I am in the possession of the Flat.
Lastly, my application under section 1(10) of CPC is attached with the File of the Case in the court. Should I take my application as admitted by the JUdge of the court.
What is the strength of General Power of Attorney executed in my favour by the Owner for selling or using the flat and take all action as I may wish. But the GPA is revocable.
I hope you would be generous to put more light in view of the above submission
Raj Kumar Makkad
(Expert) 05 June 2014
Your application is still pending so it cannot be regarded as accepted. In the light of subsequently given facts, your application is likely to be accepted. Even if the breach of the contract has been made by builder, it requires rescind on the part of the owner of the building without which no further agreement can be made with the third party. A notice to that regard is must to be issued by the owner to the builder. GPA can definitely be revoked by owner at any time.
Advocate Ravinder
(Expert) 05 June 2014
It is evident that registration is compulsory for the Development Agreement between the Builder and owner. Since there is no registration, the case filed by the Builder will be dismissed. At the most the builder can claim for his money which he has spent on the construction from the owner. Thus even the second floor portion will become the property of owner.
But there is Agreement of sale between you and the Builder, you have paid major amounts to the Builder and since the builder failed to complete the construction, you took possession of the 2nd floor portion and incurred some expenditure for completion of the same. When the owner became the owner of the 2nd floor portion, your possession will become irregular and you are supposed to vacate the premises. At the most you can recover the money you have paid to the Builder and expenditure incurred for completion of the construction of 2nd floor portion from the legal heirs of the builder by way of civil suit.
SATYA PAL
(Querist) 06 June 2014
I am thankful to all honourable justices or advocates.
I am a supervisory level worker in a private company and only able to make both end meet.
Current Position :
The Builder has expired.
His mother intends to be admitted as legal representatives.
The owner has contended that she is not only legal repesntative. The wife and son of the builder are living and present in the world.
The application for admitting as legal representatives are not proper in present form.
The owner has signified his presence and is a witness to "Agreement to Sell" between the Builder and Me. He has signed "Agreement to Sell" at a place where the Bullder has put his signature.
What is strength of this Agreement To Sell which clearly states about Collaboration Agreement between "The Owner and the Builder.
Should I file a suit against the Builder and also the Owner and claiming my legal rights and for possession of flat. Shall the General Power of Attorney already executed in my favour shall be the stepping stone to success in the case forward.
I shall be honoured if my request for your further advice is acceded to.
I am extremely indebited to you for sparing your valuable time and benelovent advise.
Your obediently.
Biswanath Roy
(Expert) 06 June 2014
You may file a declaretary civil suit against the legal heirs of the builder and the owner claiming right,title and interest over the flat you are occupying along with an application under order 39, Rule 1&2 restraining each of them not to disturb your possession in the flat which you are occupying.
Raj Kumar Makkad
(Expert) 06 June 2014
Your query has sufficiently been entertained by experts and now your turn is to defend your ongoing case effectively.
T. Kalaiselvan, Advocate
(Expert) 06 June 2014
The alternative solution available before you is that you sell the property on the basis of power of attorney executed in your favor by the owner, let the other parties fight and establish their rights and claims over the other properties i.e., ground and first floor, or either you get yourself impleaded as a party to the impending suit or you file a separate suit against the LRs of builder under specific performance act, if it is within the limitation.
