Civil Matter.
Querist :
Anonymous
(Querist) 28 October 2009
This query is : Resolved
Respected Sir,
I have only a Xerox copy of document, which was executed by “A”( land owner) in the month of October, 2006 (1st document) stating that he has received entire sale consideration from me for a particular land and that he also agreed to take the same for development purpose, as he is also a builder. And the remaining 5 points therein are also in respect of development works. Other than that no points are mentioned.
Later I agreed to take back the paid amount along with some benefit and agreed to withdraw from the said transaction. Accordingly “A has paid ¾ of the amount and remaining is in due.
While the said transaction is pending, due to some reasons, I along with “A executed a document namely “Memorandum of Settlement” in the month of November, 2007 (2nd document) mentioning a clause “ that all the transactions involved in between both of us are hereby closed and there is no transaction are pending.” The witness, who has witnessed on both the above documents, is one and the same and he is also friend of mine and he knew the transaction. Now “A” is not paying the remaining balance amount and refused to pay the same, on the basis of the 2nd document.
As I want to take back my land, since “A” has not fulfilled his commitments. And that now I am ready to pay back his paid amount and interested to take my land. What will be the best option I have to choose?
Now the point is:-
1. Is there any possibility to file a civil suit or a criminal case on the basis of a Xerox copy of the 1st document, against “A” for recovery of the entire land?
2. Is there any possibility to cancel the 2nd document, as “A” has failed to full fill his commitments.
3. To which case, I can go to file.
So plz. Give ur suggestion.
Theja
(Expert) 28 October 2009
I have a quesiton to you:
You said that both of you have agreed to withdraw from the transaction and so, A has paid some amount of the transaction accordingly. Do you have documentary proof for that?
If yes, then you can get the property only by mutual agreement again with A?
You can not cancel the latest document as it has been duly executed by both of you. Also, A is not liable to pay any amount due to you as you by yourself agreed by signing the Memorandum dated Nov 1, 2007 that all the transactions involved in between both of you are thereby closed and there are transactions pending, which means that none of you is liable to each other. However, there may be some survival provisions under the first document which may govern the parties. So, you can not cancl the 2nd doc and claim your right under 1st doc. You can claim yor right to property unddeer the 1st document as the 2nd document has nothing to do with you right to property.
However, your second document (Nov, 2007) does not provide anything abt the rights of the parties upon the property. It only closes the transaction between you and acknoledges the same.
It is also a general rule that when there are multiple documents in a transaction the latest shall be considered in ascertaining the rights and liabilities of the parties provided the none of the documents has a provision for order of precendece.
Raj Kumar Makkad
(Expert) 28 October 2009
As the 2nd document has replaced 1st one so any relief, if available can be obtained under the terms and conditions mentioned therein. I suggest to engage a local lawyer and consult with him and then act accordingly. As the entire terms and conditions of your second deed are not before us, we find unable to suggest you properly except that the second shall prevail and no hope to return to earlier time because one of the parties has resile. You have no chance to retain the property untill and unless the second document contains such term.
adv. rajeev ( rajoo )
(Expert) 29 October 2009
on the basis of the xerox u cannot file a civil suit. When A not full filled according to the 2deed then u issue a notice thru., lawyers.
As RAj said it is better to consult local lawyer with details.
Suhail suhail
(Expert) 29 October 2009
I agree with Mr. Raj, as mentioned by Mr. Raj that the contents of settlement document is not placed here, as being an essential document.
However i suggest, if as per your mention that the second document states the transaction is fully satisfied. If it is so then you can take full benefit of the document, as the matter turns to be factual and you have to construe if there is such place where the contents does not clarify as to what extent or in which course the transaction is over, then the second document is in your favuor. you simply make a legal notice served upon the other party thereby acknowledge him to get the sale deed executed and since the construction part is over as agreed and the amount has been repaid by you which, which was paid by me for the construction of building, you are as such placed on notice to get the formal sale deed registered ,as the consideration sale amount has been paid in full and final, vide the agreement ____dated... refer the final/second agreement .(within a period whatever your lawyer will deems proper). What will happen when the other party receives notice, he will reply the notice mentioning that i have repaid the whole sum and the transaction is over as reached under the agreement, now it turns to be dispute, as such cause of action will arise and file a suit for declaration seeking decree to declare you as having paid the consideration sum, as such the seller has no interest or right upon the same. Or you can file suit for specific performance thereby causing the seller to get the formal sale deed executed and registered. The other side will show receipts of repayment, but your contention will be that the construction of building was agreed to be taken by you of your own and as such the amount has been repaid to that extent as the other side cannot show receipts as to full payment as per you he is yet in arrears.
But if the receipts of repayment mention that the amount is repaid which was received in consideration of sale of land, then there is some weakness but still the matter would be subject to establishment of facts. In any way it comes to be proved by facts, the documents as you mentioned is witnessed by one of your friend so he can testify in court that the version your Lawyer will choose to adopt. But you have to take the first step instantly before he would raise a third party interest, i.e he my sell the land to some one else, If the circumstances are so then make a publication in the well circulated news paper to acknowledge the general public about the land in question, giving particulars and specifications of land and acknowledge that the land is purchased by you, and or if your counsel will file any suit then he will get the interim relief as will be deemed fit to him.
