Flat cannot be sold without the consent and involvement of the bank with builder and purchaser. Bank has colluded with builder and purchaser. Sale by builder is not valid as you are not a party to the agreement. You are entitled to file a criminal for criminal breach of trust against builder and bank. File complaint in the Court of Magistrate, as police will not take such complaint. You can also file a civil suit against builder, bank and purchaser for cancellation of sale deed and refund to emis paid to bank with interest.
Builder has sold my mortgaged flat to someone else without my & bank's knowledge
I had purchased under construction flat from a builder. To purchase the flat I took homeloan from India bulls. Since the area didn't get government clearance & due to other issues I asked builder to refund my money back. I compromise was reached in court and builder agreed to refund my money & take back the flat. This compromise agreement was done in court & I intimated India bulls about the dispute. Builder didn't honor the compromise and the payment cheque didn't get cleared. I kept paying homeloan installment timely till last year when during Covid I requested India bulls to give me restructuring. While doing verification, India bulls updated me that my flat which was mortgaged has been sold to someone else by builder. Since flat was mortgaged under tripartite agreement, my understanding is flat cannot be sold without my & bank's noc. What action can I take against builder. No action has happened on my police complaint, bank is now pressing me to pay emi Or give another property.My business is hit due to covid but how can I pay emi for property which doesn't exist.Also how can builder sell flat which is under tripartite agreement & mortgaged with bank. Builder's MD who sold me flat is absconding & new directors r now on board
Asked 3 years ago in Property Law
Religion: Hindu
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6 Answers
You can send him and legal notice and file a consumer complaint against him
1) take out contempt of court proceedings against company
2) company is bound by court orders to refund your money
3) also file complaint against builder for cheating and criminal breach of trust under section 406,420 of IPC
If the tripartite agreement was on a registered deed, then you may have to file a lawsuit to declare the sale deed of the property sold by the builder as null and void in view of the agreement entered with you.
Alternately you can seek the refund of the entire booking amount paid to the builder including the money the bank had advanced as loan towards this property if it is not possible for the builder to execute the sale deed in your favor in the suit for specific performance of contract.
What prevented you from taking action to file cheque bounce case when the cheque issued by the builder towards refund of amount paid by you through a court order.
In fact yo may not be eligible for filing a suit for specific performance of contract too since the court has already decided and directed the builder to refund the amount cancelling the sale agreement between you and the builder.
You should have stopped paying the EMI amount too ever since, now as you have continued to pay the EMI to the bank, the bank is after you for payment of EMI or discharge of loan amount.
You can discuss with your advocate properly and proceed based on suggestions advised on the basis opf the situations prevailing at your end
- Since the said flat not handed over to you by the builder and sold to someone without refunding you , then you can lodge a compliant against the builder for the offence of cheating ;and breach of trust
- Further, as the matter already compromised , then the builder is bound to comply the direction of the court.
- You can move a contempt petition before the same court where the matter was compromised against the said builder .
- Further, as the director has been absconded then must lodge an FIR before the police , so that he may be arrested for the said offence and to refund the amount .
Dear Client,
It is advisable to file a complaint under Section 406 and Section 420 of the Indian Penal Code, 1860, against the builder. With regard to absconding, you may file an FIR at the police and request for the arrest of the builder. Alongside, you may also file a civil suit against the builder and the bank for the mortgage and the cancellation of the sale deed and refund of the amount you had to pay to the bank.
Thank you.
