LEGAL NOTICE TO APPOINT ARBITRATOR IN CASE OF DISPUTE ARISING OUT OF FLAT BUYER AGREEMENT (I.E. ARTICLES OF AGREEMENT) EXECUTED BETWEEN A BUILDER AND A FLAT BUYER
LEGAL NOTICE TO APPOINT ARBITRATOR IN CASE OF DISPUTE ARISING OUT OF FLAT BUYER AGREEMENT (I.E. ARTICLES OF AGREEMENT) EXECUTED BETWEEN A BUILDER AND A FLAT BUYER
Regd. A.D/Speed Post/ Courier
Dated: …………
M/s __________________
A Company incorporated under the Companies Act, 1956
Having its Registered Office at:
____________________,
____________________,
____________________.
Legal Notice on behalf of my Client: M/s ______________., having its registered office at __________________________.
Dear Sirs,
Under instructions from and on behalf of my client, M/s ______________________, having its registered office at ________________. I hereby serve upon you the following Legal Notice.
That my Client above named is a ______________ registered under the provisions of the Companies Act., 1956 having its registered office at _________________, (hereinafter referred to as “my Client”), and my Client is represented by its Director Mr. ________ S/o Mr. _______.
That you the Company above named, made representations and assurances to my Client claiming itself to be accomplished and renowned ________ with an expertise in the business of __________________________ and other parts of the country.
That you the Company above named launched a project of residential flats in the Group Housing Project under the name and style of “___________” at Plot No. ___________ and another project under the name and style of “___________” at ___________.
That induced by the representations and assurances made by you the Company above named, my Client applied for allotment of ____ flats vide requisite applications, and thereafter considering the applications of my Client, you the Company above named vide ____ respective Allotment Letters all dated _______, allotted ____ flats to my Client namely Service Apartment No. _______ of _______ type on _______ Floor having super Area of ______ Sq. ft. in “___________”, Service Apartment No. ____ of ____ type on ____ Floor having super Area of _______ Sq. ft., and Apartment No ____, ____ Floor having super area of ____ Sq. ft in ____. That you the Company above named executed and signed with my Client the following ____ separate Allotment Letters all dated _______ in respect of the allotment of above ____ flats:-
Allotment Letter dated _______ in respect of allotment of Service Apartment No. _______ of ____ type on _______ Floor, admeasuring _______ sq.ft. in the proposed building known as “___________” being constructed at Plot No. ___________ for a total sales consideration of Rs._______/- comprising of _______/- towards basic sale price and Rs._______/- towards Service Tax.
Allotment Letter dated _______ in respect of allotment of Service Apartment No. ____ of ____ type on ____ Floor, admeasuring _______ sq.ft. in the proposed building known as “___________” being constructed at Plot No. _______ for a total sales consideration of Rs._______/- comprising of _______/- towards basic sale price and Rs._______/- towards Service Tax.
Allotment Letter dated _______ in respect of allotment of Apartment No.____ of “___________” on ____ Floor, admeasuring ____ sq.ft. in the proposed building known as “___________” being constructed at Plot No._______ for a total sales consideration of Rs._______/- comprising of _______/- towards basic sale price plus Rs._______/- towards Car Parking, and Rs._______/- towards Service Tax.
(All the above ____ flats are hereinafter collectively referred to as the “said ____ flats”).
That you the Company above named, fixed the Sales Consideration for all the “said ____ flats” at total price of Rs._______/- (Rupees _______) inclusive of Service Tax, and accordingly my Client had paid full and final sale consideration amount of Rs._______/-, for the “said ____ flats” to you the Company above named, vide cheque No._______, dated _______, drawn in favour of ________, drawn on _______ Bank, _______, which amount was duly received and encashed by you the Company above named, and in acknowledgement of the said amount of Rs._______/-, you the Company above named issued the following _______ Receipts:-
Receipt No._______ dated _______ for an amount of Rs._______/- in respect of allotment of _______ flats, namely _______ and ____, admeasuring _______ sq.ft. each in the proposed building known as “___________” being constructed at Plot No. _______
Receipt No._______ dated _______ for an amount of Rs._______/- in respect of allotment of one flat, namely ____ of “___________” on ____ Floor, admeasuring ____ sq.ft. in the proposed building known as “___________” being constructed at Plot No._______
6. That as per clause No.____ of the terms and conditions of all the ____ Allotment Letters dated _______, it was agreed by you the Company above named that the possession of the “said ____ flats” shall be delivered to my Client by you the Company above named by the date mentioned in the cost sheet affixed at the last page of the Allotment Letter dated _______ subject however, to force majeure, circumstances, regular and timely payments by my Client.
“However, a perusal of the last page of the all three Allotment Letters dated _____________ shows that you the Company above named have for ulterior movies and reasons best known to you the Company above named did not mention any date by which you the Company above named would deliver the possession of the “said three flats” to my client above named.”
7. That simultaneously with the issuance of the above ____ Allotment Letters all dated _______ in respect of the “said ____ flats” you the Company above named offered to buy back the “said ____ flats” from my Client at a pre-settled and determined amount of Rs._______/- (Rupees _______ Only), plus separate reimbursement of amount of Service Tax (i.e. Rs._______/- + Rs._______/- + Rs._______/-) in total amounting to Rs._______/-, and accordingly my Client accepted the offer made by you the Company above named pursuant to which a consolidated Articles of Agreement dated _______ was entered into between my Client and you the Company above named. You the company above named also executed and signed an Affidavit dated _______ affirming that you the Company above named shall not sell/transfer/create third party interest over the said (_______) Flats bearing No. _______ and ____ _______ measuring _______ Sq.Ft. each at “_______” in Sector-_______ and _______ Flat bearing No. ____ measuring ____ Sq.Ft. at “____ at Sector-_______ till the entire claim of __________ for the buy-back of the said flat is not repaid/settled as per the agreement. Further, you the Company above named gave an unconditional guarantee/assurance to buy back the “said ____ flats” by _______ at the pre-settled and determined amount, of Rs._______/- as mentioned in the Articles of Agreement dated _______ plus separate reimbursement of amount of Service Tax (i.e. Rs._______/- + Rs._______/- + Rs._______/-) in total amounting to Rs._______/-. It was further agreed that in case of any delay in making the buyback payment, you the Company above named would also be liable to pay a penal interest @ __% p.a. on the delayed payment. It is pertinent to mention that in order to make the buyback payment, you the Company above named issued the following five post dated cheques out of which _______ post dated cheques were for an amount totaling to Rs._______/- (Rupees _______ Only) towards sales consideration and one post dated cheque for an amount of Rs._______/- towards reimbursement of Service Tax, in favour of my Client.
_______ Cheques issued towards sales consideration:-
Cheque No._______, dated _______ for Rs._______/-, drawn on _______, _______.
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______ (this cheque was agreed to be given on _______, but was given only on _______)
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
One post dated cheque issued against reimbursement of Service Tax
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
8. That Clause Nos._,__,_ and ____ of the Article of Agreement dated _______ which are relevant are reproduced as under.
CLAUSE ___:
“That the First Party gives an unconditional guarantee to buyback the above allotted flat by _________________ at a pre-settled and determined amount of Rs._________________/- (Rupees ___________________ Five) Only to be paid by the First Party to the Second Party as follows: -
- By ____________ Rs _________/-
- By ___________ Rs ________/-
- By ___________ Rs _________/-
- By ___________ Rs _________/-
In case of any delay in above mentioned payments a penal interest @ ____% p.a. will be applicable for the delayed period.”
CLAUSE 7:
“That First Party has also issued post dated cheques for the buyback amount Rs._____________/- (Rupees _____________________ Five) only.”
CLAUSE __:
“The project has is already sanctioned and the possession of the flat will be handed over to the Second Party within _____ months from the date of this agreement.
CLAUSE ____:
“The First party has also unconditionally agreed that in case, it fails to make any of the payments as mentioned above, than after a period of ____ days from the due date, it shall execute the sale deed and complete such other formalities, as may be necessary for effecting transfer of legal ownership of the said Flat to the second party, or its nominee or any other party introduced by the second party. if the second party waives off its right to receive the amount remaining unpaid and chooses to retain the ownership of said Flat, as and when so required by the Second party without requiring the second party to make any further payment or to do any other thing, whatsoever. Upon completion of said formalities the first party shall be assumed to have discharged its buy-back in full and the second party shall become the absolute and rightful owner of the said Flat.”
It is pertinent to note that the Clause __ of the Article of Agreement dated _______ clearly fixes the date for handing over the possession of the flats to my Client viz. ___ months from _______.
9. That the following _______ post dated cheques in total amounting to Rs._______/- issued by you the Company above named for buy back of the “said ____ flats” were dishonored as and when presented for clearance to the bank for clearing with the remarks “FUNDS INSUFFICIENT”
Cheque No._______, dated _______ for Rs._______/-, drawn on _______, _______.
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______ (this cheque was agreed to be given on _______, but was given only on _______)
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
10. That in view of the dishonor of the above ____ post dated cheques it became very clear that you the Company above named failed to honour and fulfill your contractual obligations as stipulated in Articles of Agreement dated _______. That for this reason, my Client reserved its right to initiate appropriate proceedings under Section 138 of the Negotiable instrument Act but, however, independent of the said legal right, my Client served upon you a Legal Notice dated _______, through its Advocates, NOTIFYING you the Company above named as under:-
(i) That you the Company above named have failed to make the payment within the stipulated period of time and as such consequent upon deliberate breach of contractual obligations as well as consequent upon dishonor of the cheques and expiry of stipulated period of buyback, my Client in exercise of its right to retain the “said ____ flats”, terminated clause ___ (buy back clause of the Agreement) of the Article of Agreement dated _______, which has otherwise also expired by efflux of time. As such my Client is restored back to the original position with the primary right over the “said ____ flats” in question on the same terms and conditions, as principally agreed, without any escalation, additional charges, etc. My Client preserves and exercises its right of ownership over the “said ____ flats”.
(ii) That my Client terminated clause ___ (buy back clause of the agreement) with immediate effect and my Clients did not wish to sell the “said ____ flats” namely the Apartment No. ____ of ____ type on ____ floor having super Area of _______ Sq.ft. Apartment No._______ of ____ type on _______ Floor having super Area of _______ Sq.ft. in ___________ at Plot No.______, Sector-_______ (______) and Apartment No.____, ____ Floor having super area of ____ Sq.ft. in ____ at Plot No. _____, Sector-_______, ______ to you the Company above named.
(iii) That my Client called upon you the Company above named to deliver the physical possession of the “said ____ flats” and to execute the necessary ownership documents of the “said ____ flats”, in favour of my Client.
11. That you the Company above named did not send any reply to the said Legal Notice dated _______. However, it was surprising for my Client to know from his bank that nearly __ months from the date of receipt of the Legal Notice on _______, you the Company above named have without the knowledge, authorization and consent of my Client transferred an amount of Rs._______/- by RTGS No._______ dated _______ to the bank account of my Client. My Client is not aware of the motive behind the unauthorized and illegal manner in which you have transferred a sum of Rs. _______/- to the bank account of my Client even when it is in your specific knowledge that the Articles of Agreement dated _______ stand terminated.
12. That now in nut shell the present position is as under:-
(i) That my Client has paid to you the Company above named an amount of Rs._______/- for purchase of the “said ____ flats” namely Service Apartment No. _______ of ____ type on _______ Floor, admeasuring _______ sq.ft. in the proposed building known as “___________” being constructed at Plot No. _______, Service Apartment No. ____ of ____ type on ____ Floor, admeasuring _______ sq.ft. in the proposed building known as “___________” being constructed at Plot No. _______, and Apartment No.____ of “___________” on ____ Floor, admeasuring ____ sq.ft. in the proposed building known as “___________” being constructed at Plot No._______
(ii) That you the Company above named had executed and signed ____ separate Allotment Letters each dated _______ allotting the “said ____ flats” to my Client.
(iii) That you the Company above named have simultaneously entered into Articles of Agreement dated _______ with my Client thereby agreeing to buy back the “said ____ flats” for a total amount of Rs._______/- plus separate reimbursement of amount of Service Tax (i.e. Rs._______/- + Rs._______/- + Rs._______/-) in total amounting to Rs._______/-,
That in pursuance to the said buy back arrangement of the “said ____ flats”, contained in Articles of Agreement dated _______, you the Company above named issued the following five post dated cheques out of which _______ post dated cheques were for an amount totaling to Rs._______/- (Rupees _______ Only) towards sales consideration and one post dated cheque for an amount of Rs._______/- towards reimbursement of Service Tax, in favour of my Client.
Cheques issued towards sales consideration:-
(i) Cheque No._______, dated _______ for Rs._______/-, drawn on _______, _______.
(ii) Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______ (this cheque was agreed to be given on _______, but was given only on _______)
(iii) Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
(iv) Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
One post dated cheque issued against reimbursement of Service Tax
Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______.
(v) That except for Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______ which was encashed on presentation, the other _______ cheques in total amounting to Rs._______/- as and when presented by my Client were dishonoured and returned back unpaid with the remark “FUNDS INSUFFICIENT”.
(vi) That my Client through its Advocate, served upon you the Company above named, a Legal Notice dated _______, thereby terminating clause ___ of the Articles of Agreement dated _______ (which otherwise stood terminated by efflux of time), and in exercise of its rights under clause no.___ of the said Article of Agreement dated _______ my Client called upon you the Company above named to deliver the possession of the “said ____ flats” to my Client and also execute necessary ownership documents e.g. conveyance deeds in respect of the “said ____ flats” in favour of my Client.
(vii) That thereafter, on _______, you the Company above named have without the knowledge, authorization and consent of my Client transferred an amount of Rs._______/- by RTGS No._______ dated _______ to the bank account of my Client.
(viii) That as on date my Client have made a payment of Rs._______/- to you the Company above named for the purchase of the “said ____ flats” against which you the Company above named have paid to my Client an amount of Rs. _______/- comprising of encashment of post dated Cheque No._______, dated _______, for Rs._______/- drawn on _______, _______, and the unauthorized, fraudulent and illegal manner in which you have transferred a sum of Rs._______/- by RTGS No._______ dated _______ to the bank account of my Client even when it is in your specific knowledge that the Articles of Agreement dated _______ stand terminated. That pursuant to the deduction of the said amount of Rs. _______/-, a net amount of Rs.________/- stands already paid by my Client to you the Company above named as sales consideration for purchase of the “said ____ flats”. That my Client is ready and willing to pay the balance sales consideration amount of Rs._______/- forthwith to you the Company above named for the purchase of the “said ____ flats. A photocopy of the Cheque No.______, dated ______, for a sum of Rs. _______/- drawn on _______ Bank is annexed along with the instant Notice. That my Client handover the original of the cheque to you the Company above named, once you the Company above named either confirm the date of handing over the possession of the “said ____ flats” to my Client and the date of execution and registration of the Conveyance Deeds of the “said ____ flats” in favour of my Client or at the time when you the Company above named hand over the possession of the “said ____ flats” to my Client and simultaneously you the Company also execute and register the Conveyance Deeds of the “said ____ flats” in favour of my Client.
13. That in each of the Allotment Letter dated _______ there is an identical Arbitration Clause No.____ which reads as under:-
“Any dispute or difference arising between the Parties as to the effect, validity or interpretation of this Allotment Letter or as to their rights, duties or liabilities thereunder, failing amicable resolution through mutual negotiations, shall be referred to and settled by arbitration proceedings to be held in accordance with the Arbitration and Conciliation Act, 1996 or any subsequent enactment or amendment thereto. The decision of the arbitrator shall be final and binding upon the parties. The venue of arbitration proceedings shall be at ____.”
14. That this Legal Notice is in respect of the flat known as Service Apartment No. _______ of _______ type on _______ Floor having super Area of _______ Sq. ft. in “___________”, at Plot No. ___________, (hereinafter referred to as the “flat No. _______”), whose facts are as under:-
(a) That vide Allotment Letter dated _______, you the Company above named sold to my Client the flat known as Service Apartment No._______ of _______ type on _______ Floor having super Area of _______ Sq. ft. in “___________”, at Plot No. ___________, for a total sales consideration of Rs._______/- comprising of Rs._______/- towards basic sale price and Rs._______/- towards Service Tax.
(b) That the said sales consideration of Rs._______/- was paid by my Client to you the Company above named for which you the Company above named issued a composite Receipt No._______ dated _______ for an amount of Rs._______/- in respect of allotment of _______ flats, namely _______ and ____, admeasuring _______ sq.ft. each in the proposed building known as “___________” being constructed at Plot No. _______
(c) That a ____months time period from the date of Allotment Letter dated _______ for handing over the possession of the “flat No. _______” to my Client was fixed by you the Company above named, and hence you the Company above named was liable to handover the possession of the “flat No. _______” to my Client on _______.
(d) That you the Company above named have failed to handover the possession of the “flat No. _______” to my Client on _______.
(e) That clause No.___ of the Allotment Letter dated _______ reads as under:-
“Any dispute or difference arising between the Parties as to the effect, validity or interpretation of this Allotment Letter or as to their rights, duties or liabilities thereunder, failing amicable resolution through mutual negotiations, shall be referred to and settled by arbitration proceedings to be held in accordance with the Arbitration and Conciliation Act, 1996 or any subsequent enactment or amendment thereto. The decision of the arbitrator shall be final and binding upon the parties. The venue of arbitration proceedings shall be at ____.”
15. That in view of the facts and circumstances narrated hereinabove, and specially in the background that serious disputes have arisen between you the Company above named and my Client, I through this Legal Notice invoke Clause No.__ of the Allotment Letter dated _______ entered between you the Company above named and my Client, and through this Legal Notice I propose the name of Mr. _______, Learned Additional District Judge (Retired), to be nominated as a Sole Arbitrator, for adjudication / resolution of disputes or differences between you the Company above named and my Client. That I further NOTIFY to you the Company above named that in case no reply is received by my Client from you the Company above named in response to this Legal Notice within a period of ___ days then in that event, it shall be presumed that you the Company above named have no objection to Mr. _______, Learned Additional District Judge (Retired), being appointed as Sole Arbitrator in terms of Clause No. ___ of the Allotment Letter dated _______ for adjudication / resolution of disputes or differences between my Client and you the Company above named in accordance with law. That I also further NOTIFY to you the Company above named that my Client reserves its rights to approach the Appropriate Court (s) for urgent interim orders to protect its interest.
Take notice accordingly.
( )
Advocate
PS. A copy of this Legal Notice is also kept in my office for necessary action if any.
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