Your Advocate
This week Your Advocate is Barrister Tanjib-ul Alam Advocate, Supreme Court of Bangladesh. He is the head of the chamber of a renowned law firm, namely, 'Tanjib-ul Alam and Associates ',which has expertise mainly in commercial law, corporate law, admiralty, employment and labor law, land law, banking law, constitutional law, telecom law, energy law, Alternative Dispute Resolution, Intellectual Property Rights and in conducting litigations before courts of different hierarchies.
Query
I am 78 years old. Both my children are settled abroad and my son wanted to buy a flat for his old parents. His bank in Mombasa, Kenya agreed to finance the purchase. We decided on a flat in Basundhara of Ratul Properties, a subsidiary of giant Rupayan Group. Ratul agreed to accept Tk. 2 lacs as Blocking money pending acceptance of various details by both parties and signing the Agreement.. The Tk. 2 lacs Booking Money was paid on 18 March 2010 and a receipt issued in my name since I paid the money on behalf of my son.
Despite repeated requests a draft copy of the agreement to be signed was not furnished by Ratul till 31 March 2010. Immediately both Faisal and I protested that it was completely one-sided since it did not specify what facilities, fittings etc they would provide. Even the lift service was partially operative. On 5th April I informed them that some of the clauses of the draft agreement were not acceptable, especially those on the penalty clauses.
In the meantime, my son applied for remittance of the down payment to Dhaka, but to the great shock of both he and his bankers, the Kenyan Central Bank did not approve the remittance. He immediately informed Ratul on 9 April 2010 of the circumstances before the deadline for 1st installment. The current position is that my son had committed to buy the flat and paid the Holding Money and holding Money of Tk.2 lacs was paid by his father (ie myself) against a receipt, pending signing of agreement and terms of payment by the actual purchaser. Considering all the issues, what would be the fate of tk.2 lac.?
Sikander Ahmed
Banani, Dhaka.
Response
Thank you for your question. I understand your frustration at this stage of your life. Taka two lac is not a small money by any standard. I have not had the opportunity to look at your correspondence and the money receipt. In order to advise properly it is necessary to peruse the documents and correspondence to understand the dimensions of the transaction and intention of parties. The following opinion is expressed on the assumption that you had not agreed to total forfeiture of the booking money in the event of cancellation of the booking prior to signing of the agreement.
Section 17 of the Real Estate Development and Management Act, 2010 ("the Act") provides that if a purchaser wants to cancel the allotment made against him and demands refund of the money paid by him, a Real Estate Developer is obliged to refund the money paid by the purchaser after deducting 10% of the paid amount as administrative expenses incurred on the part of the Developer within 3 (three) months of cancellation by a single cheque or pay order.
Hence, under the above proviso of law, you are entitled to claim refund of at least BDT 180,000 after deducting 10% of the paid BDT 200,000 by you. It seems that the Real Estate Developer did not do so even after 18 months of getting your notice to cancel the allotment and refund your money. As such, the Developer is in violation of section 17 of the Act. Unfortunately, the Act is silent as to the legal recourse that can be taken against a Developer for violation of section 17 of the Act. However, you can claim interest for non-payment of money for the past 18 months by filing a money suit in the District Judge Court.
Apart from the civil remedy, if you think that you have been cheated by the Developer, you may lodge a criminal case against the Managing Director and every officer of the Developer Company who are responsible for cheating.
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