Property booking made under mou

Saurabh Aggarwal (Querist) 29 February 2024 This query is : Resolved
I booked a two flats under an MOU by paying partial cash and cheque with the promise that soon builder will get permission and will register a flat after permission.
1.MOU mentions total amount paid and in return of which builder will register a flat of 1600 sq ft
2.and that in case the builder is unable to launch the project or acquire land within 12 months. Builder will return the money with interest within 60 days
3.and cheque no xyz dated xyz is being issued for entire amount paid + interest.
4.Builder will maintain adequate funds to honour cheque as per due date.
Now the approvals are not in place from 2 years though the construction has begin at a very slow pace to calm the situation.
Builder has initially promised return of money and now is saying that he will re sale the booking to someone and only then can return the money. Obviously he is unable to find a buyer. Due to the long discussion validity of one has expired.One cheque is still valid.If I deposit one cheque , amount under the other cheque which has exceeded its validity might become under dispute as well and builder hasn't provided a fresh cheque but is saying on emails that he will resale the unit and refund the amount.
What can be done in this situation. Will it be consumer , criminal or civil , which one would be fastest to recover money.?
Other problem for me is that the cheque money paid was for capital gains investment. if the time period further crosses 3 years , will I have to pay penalty ?

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T. Kalaiselvan, Advocate (Expert) 29 February 2024
You can initiate criminal action against the still valid cheque under criminal law and use the stale cheque to file a money recovery suit if it is not more than three old.
The further opinions can be rendered after seeing the papers and knowing further details of the background of the case

Saurabh Aggarwal (Querist) 29 February 2024
1.ok sir , So I should deposit the cheque still valid , do I need to give any notice before depositing it
and
2.stale cheque has expired and crossed the 3 months validity, what can be done with the booking under that MOU ?

T. Kalaiselvan, Advocate (Expert) 01 March 2024
If a civil money recovery suit is valid and maintainable then you can proceed with the money recovery suit on the basis of the stale cheque itself provided the date of cheque is not beyond three years prior to the date of institution of this money recovery suit

Saurabh Aggarwal (Querist) 02 March 2024
can it come under consumer rights ?

Saurabh Aggarwal (Querist) 02 March 2024
will I have to pay a penalty for not being able to invest in capital gains within three years due to this dispute ?

T. Kalaiselvan, Advocate (Expert) 02 March 2024
If the property has not been sold then where is the question of paying capital gains tax?

Saurabh Aggarwal (Querist) 02 March 2024
the money i invested is for saving capital gains and register as you know is not getting done sir

T. Kalaiselvan, Advocate (Expert) 02 March 2024
The builder has not executed the sale deed on yor name which means that you did not purchase the capital assets hence there is no question of any capital gains, especially you have not acquired any capital assets hence you have not sold the asset.
you have given an advance to purchase the property which is not materialized.
The builder is returning the amount to you with interest.
The amount returned is your own money which do not attract fresh income tax too leave alone the capital gains tax.
You should have a control over your imaginary concepts in this regard.

Saurabh Aggarwal (Querist) 04 March 2024
the money i invested has come from sale of another property. The amount should be invested max within 3 years including construction and since this property is not registered hence I might loose the benefits of section 54EC

T. Kalaiselvan, Advocate (Expert) 04 March 2024
You may consult your auditor for all such further queries and the solutions therein.