consent of parties after execution of agreement for sale.

9. No mortgage etc. to be created without consent of parties after execution of agreement for sale.- No promoter shall, after he executes an agreement to sell any flay, mortgage or create a charge on the flat on the land , without the previous of the persons who take or agree to take the flats, and if any such mortgage or charge is made or created without such previous consent after the agreement referred to in section 4 is registered, it shall not affect the right and interest of such persons.

                                                                       

                                                                NOTES

v  Charges under---Validity ---Promoter of building agreeing to construct building and thereafter hand over flat to petitioner ---Willful refusal to deliver possession of said flat to petitioner ---promoter selling said flat to other party--- Agreement not registered---Held, it could not be said promoters could not be prosecuted on ground that agreement was not registered. Promoters could be charged with offence of criminal breach of trust or cheating or any of offences under Ownership Flat Act.

v  Where the promoter of the building who construct the building and thereafter hand over the flat to ‘A’, had refused to deliver possession of said flat to ‘A’ and they sold the said flat to ‘B’ in breach of the agreement, it could not be said that the promoters could not be prosecuted for the offence under section 406,409.420 read with section 34 of I.P.C. and section,3,4,5,9 read with section, 13,14 of Ownership Flats Act on the ground that the agreement between promoter ‘A’ was not registered  under the Registration Act and agreement was not registered , the agreement had become void and therefore, no party could claim any right therein. It may be that certain civil right of the parties under the agreement which has become void may come to an end. The criminal liability of a party, however, will not be extinguished. A from the entire transaction between the parties. The oral representations made by one party to another or written documents besides the Agreement may account to an offence. In a specific case the charged of cheating may depend upon the transaction apart from the Agreement which remained to be registered. Therefore, it could not be said that the promoters could not be charged with the offences of criminal breach of trust or cheating or any of the offences under the Ownership Flats Act. Pradeep Bhupatrai Vasa v/s Bombay Builders Pvt. Ltd. & others 1987(1) Bom C.R. 327

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