Diwan Advocates

Real Estate Practice

Real estate transactions in India touch multiple overlapping laws: title, registration, stamp duty, regulatory approvals, lending, and insolvency. A title defect discovered after registration, a missed RERA deadline, or a lender enforcing security can each unwind years of work. At Diwan Advocates, we advise buyers, sellers, developers, lenders, and investors across the full transaction and dispute cycle.

What We Do

Our real estate practice covers transactional work, regulatory compliance, and litigation. We act for private buyers, institutional investors, developers, banks, and NBFCs.

•      Title and Due Diligence: Revenue records, encumbrance certificates, CERSAI searches, mutation entries, and litigation checks before any acquisition or lending decision.

•      Transactions and Structuring: Sale deeds, development agreements, joint venture documents, and leases drafted and negotiated with stamp duty and registration requirements built in.

•      RERA Compliance: Project registration, disclosure obligations, allotment agreements, and complaints before the Real Estate Regulatory Authority and the Appellate Tribunal.

•      Secured Lending and Enforcement: Mortgage creation, charge registration, SARFAESI enforcement, and auction purchase due diligence for banks and NBFCs.

•      Acquisition and Sale Disputes: Specific performance, possession, cancellation of sale deeds, and injunctions before civil courts and high courts.

•      Landlord and Tenant: Lease drafting, rent recovery, eviction proceedings, and disputes under applicable rent control legislation.

•      Acquisition by the State: Compensation challenges and enhanced compensation proceedings under the Land Acquisition Act, 2013.

Title and Due Diligence

Title in India is not registered in the Torrens sense. Ownership is established by a chain of documents. A buyer or lender must trace the chain back far enough to be satisfied that the seller or mortgagor has clear, marketable title and the power to sell or mortgage.

A standard diligence exercise covers:

•      Title documents going back 30 years minimum, cross-checked against revenue records and mutation entries.

•      Encumbrance certificate from the sub-registrar showing registered transactions affecting the property.

•      CERSAI search to identify any registered security interest under the

•      CERSAI search to identify any registered security interest under the SARFAESI Act, 2002.

•      Charge search with the Registrar of Companies where the seller or mortgagor is a company, under the Companies Act, 2013.

•      Pending litigation search in courts having jurisdiction.

•      Regulatory approvals: conversion orders, building plan sanctions, occupation certificates, and RERA registration where applicable.

Gaps in the title chain, unregistered transactions, or undisclosed encumbrances create risk that no indemnity clause fully cures. We advise on when to proceed, when to seek additional representations, and when to walk away.

Stamp Duty and Registration

Every instrument of sale, mortgage, or lease must be stamped under the applicable State Stamp Act or the Indian Stamp Act, 1899, and registered under the Registration Act, 1908 where required. An insufficiently stamped document is inadmissible in evidence and unenforceable. An unregistered sale deed of immovable property does not convey title.

Stamp duty is a significant transaction cost, typically between 4 and 7 percent of the market value depending on the State. Structuring a transaction to reduce duty exposure is permissible; misdescription of consideration is not. We advise on duty-efficient structuring within the law and on curative stamping where historical instruments have shortfalls.

RERA: Real Estate Regulation and Development Act, 2016

The RERA (Real Estate Regulation and Development Act, 2016) applies to residential and commercial real estate projects above prescribed thresholds. Developers must register projects with the State RERA authority before advertising or selling. Allotment agreements must follow the model format. Possession must be delivered by the registered date.

Buyers have enforceable rights to:

•      Refund with interest where the developer fails to complete on time.

•      Compensation for structural defects within five years of possession.

•      Information disclosed in the RERA registration, which the developer cannot unilaterally alter.

Complaints lie before the RERA adjudicating officer for compensation and before the authority for other violations. Orders are appealable to the RERA Appellate Tribunal, and from there to the High Court. We represent buyers pursuing refunds and compensation, and developers responding to complaints.

Mortgages and Secured Lending

The Transfer of Property Act, 1882 governs the creation of mortgages. The principal forms used in practice are the equitable mortgage by deposit of title deeds (requiring notified area notification in most States) and the registered mortgage by deed. Both require stamp duty. A registered mortgage must also be registered under the Registration Act, 1908.

Where the mortgagor is a company, the mortgage is a charge that must be registered with the Registrar of Companies within 30 days of creation. An unregistered charge is void against the liquidator and other creditors on winding up.

On default, a secured creditor with a mortgage over immovable property above the SARFAESI threshold can enforce without court intervention. The sequence is: NPA classification, Section 13(2) demand notice, 60-day waiting period, possession under Section 13(4), and sale by public e-auction. Buyers at SARFAESI auctions take title subject to prior charges and statutory dues. TDS under Section 194-IA of the Income Tax Act, 1961 applies on auction purchases above Rs 50 lakh.

Acquisition and Title Disputes

When a transaction breaks down or title is contested, the remedies depend on the stage and the nature of the dispute.

•      Specific performance of an agreement to sell lies before the civil court under the Specific Relief Act, 1963. The court has discretion, and both quantum of payment and readiness to perform are central to the claim.

•      Possession suits lie where a buyer has paid but not received possession, or where an owner has been dispossessed without due process.

•      Cancellation of a sale deed on grounds of fraud, misrepresentation, or failure of consideration is a civil remedy that can be combined with a criminal complaint under the Bharatiya Nyaya Sanhita, 2023.

•      Injunctions restraining further dealing with a property pending dispute are available but require showing a prima facie case, balance of convenience, and irreparable harm.

We appear before district courts, high courts, and the Supreme Court in real estate disputes, and before RERA authorities and tribunals on regulatory matters.

Legislative Reference

Why Diwan Advocates for Real Estate

Real estate transactions move on negotiated timelines. Disputes do not wait.

Diwan Advocates is ready.

Diwan Advocates  |  Delhi, India