Can't advance taken without written sale agreement be refunded?
K.K.Ganguly
(Querist) 12 March 2012
This query is : Resolved
Would the Ld. Experts kindly advise.
The ancestral property, a house on 4 cottahs of land & adjoining 3 cottahs of land, is at a town named Krishnanagar around 80 KM away from Kolkata. The owner, a 66 years old, retired person stays with his only son & wife at Kolkata. He wanted to sell off the house on 4 cottahs of land keeping 3 cottahs of land with him. Two persons of Krishnanagar approached him at Kolkata, paid him Rs.1Lakh & made him writing on a Rs.10 stamp paper (with a caption Money Receipt) that he has received the amount for selling the scheduled property for a Rs.17 Lakhs. No date for paying the balance amount was mentioned. They took the signature of his wife also on the said money receipt. After few days they asked for the keys which the owner refused. The men started abusing the owner. Now the owner wanted to cancel the verbal agreement.(There was no written agreement) & send notice to the persons stating that eighter pay the balance within 7 days or I will return the advance amount treating the verbal agreement as cancelled. They replied stating that the agreement can not be cancelled & refused to take the amount back.
My question is
1) Can’t the advance taken without written agreement for sale be returned for not getting the balance amount within the notice period?
2) What problems those two men (now appears to be brokers) who had paid advance can create to hold/block the property till they get buyer?
Adv.R.P.Chugh
(Expert) 12 March 2012
Dear Querist,
A Contract can be verbal too, and the receipt which evidences receipt of money in consideration to sell the land fructifies the same.
However the same can be rescinded on ground of consent obtained by undue influence. You can then restore the amount recieved as advance. To prove undue influence - you'd have to prove that the vendor was a victim of inequal bargaining power - mental domination of strong mind over weak mind, which prevented exercise of faculties of his mind, overcame his power of resistance and he gave in to the transaction. The fact the vendees are brokers - would further strengthen your case - as it speaks volumes about they not being bona fide buyers.
This is the best way to avoid the contract.
