Query - is sub agreement to sell valid in court ?
Amit Sharma
(Querist) 21 April 2013
This query is : Resolved
Dear Sir,
I am planning to buy Resale Under Construction Property (3 BHK Apartment) in Gurgaon. I am buying the apartment from the agreement holder (buyer) of the original allottee (which means on my other side - i am signing off the sub agreement)
Example : Original Allottee/Seller (OA) Signed/Entered the Agreement to Sell(ATS) with Mr X & on the basis there ATS i am signing/entering the Sub ATS with Mr X for the purchase of same property.
This property is not transfered in the name of Mr. X yet & Mr X is not is Legal Owner of the said property but in his agreement with Original Allottee, its clearly mentioned being an property investor he can sell this property further & takes sales consideration value from prospective buyer (i.e me in this situation).
Please Suggest me is the Sub - Agreement to Sell valid in Court if be needed wherein Mr X is a Agreement Holder of Original Allottee ?
Please Reply Soon,
Regds
Gaurav Marwah
Nadeem Qureshi
(Expert) 21 April 2013
Dear Gaurav
you can easily bear consultation fee of a lawyer. contact a lawyer personally or over the phone
Amit Sharma
(Querist) 22 April 2013
Surely i can contact a good lawyer like while drafting an agreement for the same but in this situation i need to understand whether this is possible or not ?
A Sub Agreement to Sell is Valid as per Indian Court ?
I am looking forward reviews from seniors lawyers on the same being this platform is a interaction place b/w lawyers and general public..
Raj Kumar Makkad
(Expert) 22 April 2013
Original allottee is not having the ownership rights in that property so he cannot sale it to you and it is highly dangerous to purchase such property but if the builder is ready and has provided his NOC to that effect and if a tripartite agreement to sale is executed only then you should proceed for such deal. The matter of double stamp duty shall also arise in this case.
Amit Sharma
(Querist) 22 April 2013
Dear Mr Raj kumar, Thanks for the advice. If possible can u pls share/send the tripartite agreement at gaurav302@gmail.com
Regds
Gaurav Marwah
prabhakar singh
(Expert) 22 April 2013
One can not transfer what one does not have.
A person with 'an agreement to sale' in his favor from an 'owner' has only 'a right to buy' which is 'specifically enforceable by him against the owner'.
This 'right to buy' is not transferable without the consent of the 'owner'.
The query speaks that there is one 'original allottee' who has entered into
'an agreement to sale' with Mr.X
with stipulation that Mr.X can transfer
his this 'right to buy' conveyed upon him by the 'original allottee'.Then consent is found here but the status of the rights of the 'original allottee' is untold.
Then the prob required to answer the query
is that what rights the 'original allottee'
holds and what is his title deed and from whom up to origin of the source of title???
However the querist is silent and tight lipped
on this point.
Instead he has come coining a term 'sub agreement' and is asking if the same is valid in India????.
Several time i have marked querist on this site try to outsmart experts without knowing that it may prove detrimental to their own health.The query phrase suggest the querist have some 'hearsay' knowledge of ' repurchase agreements used in the U.S.markets: deliverable, tri-party and held in custody.'
The latter is relatively rare, while tri-party agreements are most commonly utilized by money market funds. Repurchase agreements are typically done on an overnight basis, while a small percentage of deals are set to mature longer and are referred to as 'Term Repo.'
Additionally, some deals are referred to as 'Open,' and have no end maturity date, but allow the lender or borrower to mature the repo at any time. In a deliverable repurchase agreement, a direct exchange of cash and securities takes place between the borrower and lender.In others there is always an intermediary between the two called 'collateral agent'. These agreements use a third party — a custodian bank or clearing organization known as the 'collateral agent' — to act as an intermediary between the counterparties to a deal. The role of the collateral agent is critical: it acts on behalf of both the borrower and lender minimizing the operational burden and receiving and delivering out securities and cash for the counterparties. The collateral agent also serves to protect investors in the event of a dealer’s bankruptcy, by ensuring the securities held as collateral are held separate from the dealer’s assets.Querist and we all can recall how 'Bear Stearns and Lehman Brothers' relied heavily & intensively on these deals to fund their operations to achieve their goal of bankruptcy. ARE BHAYEE LAXMEE MAATA KO BHEE AARAM CHAHIYE KI NAHEE? OVERNIGHT FUNDINGs THAT TOO IN real estate?
ANYWAY IN YOUR CASE IF ORIGINAL ALLOTTEE IS NOT THE OWNER WITH A CLEAR CUT unburdened title SALE DEED to which source of title up to it's origin is traced,you SHOULD NOT ENTER in the deal per contra YOU CAN for which you may just for precaution get signed by ORIGINAL ALLOTTEE as an witness.
Otherwise if ORIGINAL ALLOTTEE is not vested with transferable title you need QUAD Processor(4 party agreement you may read).
Raj Kumar Makkad
(Expert) 22 April 2013
We do not provide the formats. You need to contact a local lawyer for that purpose. Incur some amount as you wish to purchase a property.
R.K Nanda
(Expert) 22 April 2013
no more to add.
