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Article Published in the Express Magazine Dated
May 19, 2002
General Attorney : Rajiv K. Luthra
I have entered into an agreement to buy a flat
in Pune for an amount of Rs. 5 lakhs. At the time
of negotiations it was understood that the sale is
along with the furniture and fixtures. However,
this fact has not been explicitly mentioned in the
agreement. I have paid the amount to the seller,
but have not yet been given possession of the
flat. I understand the seller has now locked the
flat and has gone overseas. Can I break open the
flat and take possession ? Could a case of theft
be lodged against me? Can I file a case in the
Consumer Court or Civil Court to get possession?
Aniel Lala
GENERALLY speaking, the seller of immovable
property is bound to give the buyer possession of
the property at the time when ownership passes
unless otherwise agreed. From your query it
appears that you have entered into an agreement to
sell, which is only a contract that a sale shall
take place at a future date and not a sale,
wherein the ownership is transferred, once the
sale deed is executed. This means that you have a
right to be given possession of the flat only if
you have executed a sale deed unless otherwise
agreed in your agreement to sell. As regards
taking forcible possession from the seller, the
same is not advisable and you must take action
provided by law. If you have not entered into the
sale deed as stated above, you need to file a suit
for execution of the sale deed and delivery of
possession. The tribunals set up under the
Consumer Protection Act do not have jurisdiction
for specific performance of a contract. Thus, you
need to file your case in the Civil Court as
stated above.
Furniture and fixtures are moveable property
falling under the Sale of Goods Act. You may have
to seek relief of delivery of possession from a
court of law, maybe in the same civil suit or
otherwise depending upon the facts and
circumstances. However, the burden of proof shall
lie upon you and you will need to prove that the
furniture and fixtures were sold, even though it
is not mentioned in the Agreement.In case you
break open the flat and take possession by
yourself, this would be intentional intrusion on
land and you may be subject to liability for
trespass under tort law.
In addition, the breaking into the flat might
result in criminal prosecution being initiated
against you for theft or criminal trespass or both
depending upon the facts and circumstances. Theft,
inter alia, requires moving of movable property
without the consent of the person and with the
intention to dishonestly take it out of that
person's possession. Criminal trespass, inter alia,
requires entering into someone else's property
with the intention to commit an offence or to
intimidate, insult or annoy a person in possession
of immovable property.
There is reason for doubt whether you have such
intentions, since you would be acting in assertion
of a claim of right. However, these questions
might be matter of a trial, to be proved at a
later stage of prosecution and till such time as
they are proved to the satisfaction of the courts,
you may have to face the prosecution and other
consequences attached thereto. It is therefore,
advisable that you resort to civil proceedings as
stated hereinabove.
My father has rented an office for his
business. I am running my own travel agency in my
father's office without paying rent to him. Now
the chairman of the Society from which my father
has rented the office has asked him to pay a
sub-letting charge. The reason he gave is that he
considers that I am a sub-tenant and that two
different businesses are being carried out from
the same premises. Will my father need to pay the
sub-letting charge?
M.S. Pooja
FIRST of all your father should check his
agreement with the Society for any provisions
regarding sub-letting or use of the office by
third persons or use for purposes other than his
own business.
Section 108 of the Transfer of Property Act deals
with the rights and liabilities of the lessor and
lessee in the absence of any provisions in the
contract or local usage to the contrary. As per
this section a lessee may transfer or sub-lease
his interest in the property. This means your
father would be allowed to let you use the office
without being obliged to pay any charges. However,
a lessee must not permit another to use the
property for a purpose other than that for which
it was leased. Thus the question would be, whether
the use of your father’s office for running the
travel agency by you would amount to use for
different purposes. This seems unlikely as you and
your father both use the office for business
purposes, (unless the specific business has been
mentioned in the contract) for which the lease
would have been granted.
Please note that Section 108 of the said Act is no
defense under the State Rent Act, which may have
provisions differing from the Transfer of Property
Act
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