We (4 parties) invested for amt of ₹ 2 Cr (period of 1 yr) with a Pune based Developer through a MOU, agreed ROI was18%pa.He agreed to sell 3 under construction flats from his project & to Buy-Back them after 1yr. Developer made partial payments during the yr but could not make full payment. He requested extension multiple times. Final re-payment was done by developer to 3 parties after about 15 months but payment for 4th party/Me was pending. Developer made some payments during extended 3-3.5 yrs to 4th party but still a sizeable amount was still pending. He kept on giving PDCs with revised payable amount. He signed a new ARTICLES of AGREEMENT with 4th PARTY(ONLY) and offered his equity Shares as collateral security(equivalent to amount payable). He said their Pvt Ltd Co. was about to be acquired by another firm & his money will get released which he can use to pay me back. In this agreement there is a clause for Specific Performance of Contract saying – “These presents shall constitute a valid, legal & enforceable contract binding upon the parties hereto shall be entitled to demand and obtain specific performance of this contract from each other by due process of law.” His Pvt Ltd Co. is now acquired by a Public Ltd Company. Developer again signed a new Agreement with 4th PARTY ONLY & offered 3 new undrconstruction flats as collateral & promised to close transaction in next 4 mnths.(2 of these flats he did not get constructn permission from PMC, hence were not constructed & 3rd flat is locked by him)but again failed to honour commitment 138 NI complaint is lodged 3 months back, as repayment cheques got dishonoured in Oct2022. Questions : 1. As per 1st MOU there are 4 parties. Since payment of 3 parties is done, CAN 4th PARTY INDEPENDENTLY ASK for SPECIFIC PERFORMANCE to get POSSESSION OF FLATS / SHARES offered as COLLATERAL / PENDING DUES? 2. We are planning to complain to Economic Offence wing (EOW) for being deceived by the Developer. PLEASE ADVICE if there is any OTHER COURSE of ACTION that we can go for at this stage to safeguard my payment.
It is necessary to peruse MOU and other articles of agreement executed by builder to advice
2) file case of cheating , criminal breach of trust against builder under section 406, 420 of IPC
3) you can file suit for specific performance against builder
File 420 case ....your documents needed to be studied in detail for precise course of action... you can contact me on telegram Id.....
1.4th Party can independently seek specific performance to get possession of flats/shares offered as collateral/pending dues, with all terms of contract fulfilled & no prejudice to other parties.
2. Safeguard payment by filing police complaint with EOW, seek legal advice & file case in court for dues recovery & specific performance, & send legal notice to developer demanding payment & warning of legal action if not made within time frame.
1. Yes
2. You can file
3. Criminal complaint and proceeding with civil suit against him
You can very well proceed with the suit for specific performance of contract independently provided it is not barred by limitation.
Since you have already filed cheque bounce case against him, a complaint before economic offences wing police may not be entertained citing pending case before court.
Part performance can very much enforced under the principle known as “quantum merit.” You can a suit seeking performance of your exclusive terms after giving him notice. You can also file a criminal complaint against in in Designated Companies’ Court which is located in Pune. File a criminal complaint under Section 447 of Companies’ Act, 2013. You will get faster result.
1. 4th party cannot seek specific performance of the first contract since that contract stood modified, in relation to the 4th party only, by the 2nd and 3rd agreements, unless it is mentioned in the subsequent agreements that they are to be read in conjunction with the 1st agreement.
2. the 4th party can claim under the 3rd agreement by which the developer agreed to offer 3 under-construction flats by way of collateral. As one of those flats is in the custody of the developer, the 4th party can enforce his security and claim possession of that flat from the builder
Yes, the 4th party can independently ask for specific performance to get possession of the flats/shares offered as collateral/pending dues, as per the new agreement signed with the developer. However, it is advisable to seek legal advice before taking any action.
Complaining to the Economic Offence Wing (EOW) is a good step towards seeking justice. Additionally, you can consider taking the following actions to safeguard your payment:
Consult a lawyer: A lawyer can advise you on the legal options available to you and represent you in court if necessary.
File a civil suit: You can file a civil suit against the developer to recover your dues. This can be a time-consuming process, but it can help you get a court order to recover your dues.
File a complaint with the consumer forum: You can file a complaint with the consumer forum if you believe that the developer has engaged in unfair trade practices.
Initiate insolvency proceedings: If the developer is unable to pay his debts, you can initiate insolvency proceedings against him.
It is important to note that legal proceedings can be lengthy and expensive, and the outcome is not always guaranteed. Therefore, it is advisable to consult a lawyer and consider all your options before taking any action.
