Second buyer does not accept the super area in office space
Querist :
Anonymous
(Querist) 27 June 2024
This query is : Resolved
Dear Experts,
Events description in timeline:
-Purchased/allocated office space in an under-construction commercial building in Noida in 2017.
-First buyer took possession in mid-2022. The builder expanded the super area at possession by around 10%. The first buyer made payments based on the expanded super area.
-The First buyer transferred the same office space to a second buyer in late 2023 with full disclosure of property and documents.
-This second buyer claiming from early 2024 that the super area was inflated and began requesting a return of money in lieu of the additional super area from the first buyer.
Query: I am the first buyer here. I would like to know how to protect my interest as Second buyer threatening to drag me into a court case for increased super area. The builder is firm that Super area is correct.
kavksatyanarayana
(Expert) 27 June 2024
Without getting registration from the builder with unauthorized extent by 14% is void. You could not sell the property to other party without having a title in your favour that too unauthorized extent. Then how can you defend?
Querist :
Anonymous
(Querist) 27 June 2024
kavksatyanarayana sir, The query is about Super area non acceptance by second buyer and not about anything else. I modified the query to articulate it in simple way. Thanks for your attention. Look forward to other experts response.
T. Kalaiselvan, Advocate
(Expert) 27 June 2024
You are bound to oblige to the whimsical and meaningless demands of the buyer.
You refuse to entertain his claim and ask him to proceed legally which can be challenged as per law properly.
He cannot claim any relief in this regard at this stage.
Sudhir Kumar, Advocate
(Expert) 02 July 2024
Have you sold something which did not exist?
Has he inspected the site before buying?
Querist :
Anonymous
(Querist) 02 July 2024
@Sudhir sir, I have sold super area as per what builder sold to me as per papers/aggrements. The Second buyer inspected and visited the office site before buying. Instead of raising dispute with builder, second buyer putting undue pressure on me to refund super area money which is unreasonable as per my view.
P. Venu
(Expert) 23 July 2024
Has the conveyance been duly executed? Whatever the situation, the buyer ought to have verified the aspects which he could have discovered with ordinary care. Please see Section 55 of the Transfer Of Property Act, 1882 -
55. Rights and liabilities of buyer and seller.—
In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:—
(1) The seller is bound—
(a) to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.
(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power :
Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buyer of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.
(4) The seller is entitled—
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer,
any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered.
(5) The buyer is bound—
(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.
(6) The buyer is entitled—
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent.
