Transfer of development agreement
210681
(Querist) 21 December 2015
This query is : Resolved
Dear Sirs,
I have found that there was one registered development agreement made between land owner and Developer in 2007.
In 2008, the developer transfer right to development to another developer without registration and without giving intimation to land owner.
I just want to know that whether this transfer of unregistered development agreement by one developer to another developer will be valid even though 1st developer not intimated to land owner and also not registered the transfer of development agreement. Whether this is fall in Transfer of Intellectual Property Right.
Please answer the same.
Thanks and Regards,
CA Prabhakar Dubey
DR.VEDULA GOPINATH
(Expert) 22 December 2015
Development Agreement can be transferred subject to execution NOVATION agreement duly executed by three parties (land owner, developer and NEW DEVELOPER).
This is an effectual and legal method of transferring the development agreement.
If you send full details, i can advise you further.
Dr Vedula Gopinath, advocate/arbitrator
vgnath@gmail.com
Rajendra K Goyal
(Expert) 22 December 2015
All the terms of documents need to be referred.
Broadly the agreement of transfer of rights not binding on the land owner.
K.S.Srinivas
(Expert) 26 December 2015
Section 62 in The Indian Contract Act, 1872
62. Effect of novation, rescission, and alteration of contract.—If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. —If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed." Illustrations
(a) A owes money to B under a contract. It is agreed between A, B and C, that B shall thenceforth accept C as his debtor, instead of A. The old debt of A to B is at an end, and a new debt from C to B has been contracted. (a) A owes money to B under a contract. It is agreed between A, B and C, that B shall thenceforth accept C as his debtor, instead of A. The old debt of A to B is at an end, and a new debt from C to B has been contracted."
In every novation there are four essential requisites:
“(1) A previous valid obligation;
(2) the agreement of all the parties to the new contract;
(3) the extinguishment of old contract; and
(4) the validity of the new one.
A novation is new contractual relation. It is based upon a new contract by all the parties interested.
It is an agreement between two developers and the land owner is not a party to this agreement. Since land owner is not a party to the new agreement, it is not valid.
T. Kalaiselvan, Advocate
(Expert) 31 December 2015
