Specific performance
Rajesh
(Querist) 16 May 2012
This query is : Resolved
In continuation of my earlier query few days ago, I am further soliciting experts legal opinion on the legal problem faced / contested by me . Brief Legal Problem is as follows :-
An agreement to sell 40 kanals of agricultural land situated in Haryana was signed on dated 30.6.2004 , where the Seller received half of sales consideration amount ( Rs 7.5 lakh) as earnest money from the Buyer and gave possession of land “on spot” as per terms of agreement and rights to sell agricultural produce grown over it. The Agreement was not registered.
Buyer failed to execute the registration of sale deed on fixed date 30.12.2004 . On the request of the Buyer, the Seller extended the Date of Registration to 30.4.2005 and endorsed the extension by signing it on original copy of Agreement but without giving any reasons for extension. Again , the Buyer failed to execute Sale deed for the want of balance sale consideration and pressurized the Seller to extend it further . The Seller, keeping in view the existence of good relationship , extended the date of execution further to 30.12.2005 . All extensions were endorsed in writings duly signed by both but without mentioning reasons for giving extensions . In between. the Buyer didn’t give any further money to the Seller .
As the date of execution (30.12.2005) was approaching , the Seller, keeping in view the past behavior of the Buyer, was regularly contacting the Buyer and reminded him at regular intervals over telephone about the date of execution and keeping the drafts ready of the balance sale consideration.
On the date of Registration(30.12.2005) , When the Seller reached the town and went straight to the Buyer’s house at around 9 am and told him to about Registration . The Buyer again stated that he had not arranged balance sale consideration . The Seller told him that he was reminding him regularly over phone about this and told him that he wants registration in all circumstance today. In his response , the Buyer stated that he will try to arrange the money ( Rs 7.5 lakh) and meet you in the office of Registrar .
The Seller, thereafter went straight to the office of Registrar and waited there for the Buyer . The Seller, as a precaution to protect his legal rights, marked his attendance with the Registrar before lunch time and waited till 5 pm there for the Buyer. The Buyer didn’t turn up there nor he tried to contact him over his mobile. Meanwhile, the Seller met the Buyer again on next day , again he requested for extension of time , which the Seller refused.
After that, the Seller served upon the Buyer notice rescinding the contract and thereby forfeiting the earnest money amount. All types of negotiations failed to resolve the matter amicably .
After nearly a year i.e 30 .11.2006, the Buyer filed Suit for possession by way of Specific Performance against the Seller . Buyer in his plaint admitted taking of possession of suit property.( Seller in his replication accepted the agreement also). The Buyer has stated in his Plaint that on the date of execution , the Seller didn’t turn up for registration and he was Rs 7.5 lakh in cash , which he had taken from his commission agent in cash ( friendly loan without interest) on the same day morning . He waited in the court for whole day and Seller didn’t turn up. He also stated that he returned the money ( in cash) to Commission Agent next day . He stated that he got marked his attendance with Registrar.
But , As per records of attendance, the Buyer is last but second person to mark attendance , whereas the Seller marked at around 10 positions earlier. The Buyer came to the knowledge of the seller marking attendance with the Registrar through his friends in court and he also got marked his attendance with Registrar at the fag end of Day .
As per facts available with Seller ( Defendant) , the Buyer was not having any bank balance from the date of agreement till the filing of Suit and had not taken any constructive step for execution of registration like purchase of stamp papers, Drafts of balance sale consideration or contacted Seller over his mobile etc..
Experts Opinion Required on the Following:
Ist - Can I take a argument in Defence being Seller that “time was essence” since Defendant was regularly reminding ( four times contacted)the Plaintiff over his phone before 30.12.2005 for last date of execution and was stressing for keeping balance sale consideration in Bank draft/s ready and also told verbally in clear terms several times that no further date of extension would given beyond ( 30.12.2005) .
2nd – In his replication , Plaintiff has taken a plea that since price of land have gone up in the area substantially after the date of signing agreement ( 30.6.2004 ), the Defendant was refusing to complete execution and in fact it was he ( seller) requested for extension of dates ( twice) and he( buyer- plaintiff) agreed to such extensions because of good relations. Pl suggest , How to counter such argument effectively?
3rd – Pl Suggest to me points which I should ask in cross examination of Plaintiff.
ajay sethi
(Expert) 16 May 2012
repeated query already replied in detail by experts .
for cross you have to go theough the complete pleading s , affidavit of evidence . contact a local senior lawyer for cross . mr makkad is from haryana . contact him
Adv.R.P.Chugh
(Expert) 16 May 2012
Dear Colleague at the Bar,
1. Yes - in light of repeated extensions - it becomes apparent that time was of the essence of the contract - if it was not - extensions would not have been sought every time. The earlier notion that in immoveable properties time is not normally of essence is changing now in light of fast escalation of property prices. You can place reliance on Sardamani Kandappan v. Rajalakshmi 2011 SC)
2. Use this point to your advantage, it is established law that SP is not to be granted merely because it is lawful to do so, it has to be just fair and equitable being a remedy of equity. In the present circumstances due to lapses by buyer sale got delayed not 1 or 2 months but an entire year, in which property prices increased manifold in these circumstances it would inequitable towards the seller to compel him to sell.
3. Let the Buyer positively prove readiness and willingness to perform his part as per S.16(c) which would be extremely difficult to prove. As regards his presence on date of registration - you've not mentioned the time fixed for the same ??
Shonee Kapoor
(Expert) 18 May 2012
:-)
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
