Difference between sp of agreement and sp of contract ?
M Sudhakar
(Querist) 30 November 2013
This query is : Resolved
Sirs,
May I know the difference between a Provisional Booking, An Agreement , Renegotiated Oral Agreement ( Implied ) and a contract
and also
Difference between specific performance of a contract and Specific performance of agreement ?
D2 ( Bonafide subsequent buyer) has been accused of collusion with D1 ( Builder )by plaintiff whose written agreement with D1 has been cancelled due to non payment of any installments after provisional booking but a month or so after cancellation notice served on the plaintiff, payment for one of the pending installment was accepted by D1 ( in good faith that Plaintiff will clear all dues soon as he promised ) and also issued a letter to inspect the under construction apartment and suggest internal alterations if any through which letter the plaintiff now claims that the builder implied that the builder agreed to new orally renegotiated terms to receive all remaining dues ( nearly 80% of total sale consideration )after completion and intimation of the alterations in the apartment - The Builder in the mean time vexed with the delay - sold the apartment to subsequent buyer D2 without informing D2 of the said previous agreement
2 years After registration and taking possession of the apartment D2 receives court notice to be impleaded in the suit for specific performance of agreement against D1 or face exparte hearing
D2 on advice of his lawyer got impleaded but plaintiff changed petition to collusion between D2 and D1 and sought cancellation of registration in favor of D2
D1 in his counter claims D2's registration is valid and executed before the plaintiff filed his suit and more over Plaintiff did not pay any court fee for cancellation of registration which would make it a suit for SP of contract while his suit is only for SP of agreement and that the plaintiff's agreement was cancelled due to plaintiff's failure to pay installments despite the many opportunities given to the plaintiff on his request to clear his dues
In light of the above what is D2's burden of proof ?
and how helpful it is to D2 that Plaintiff while now seeking cancellation of registration, did not even pay court fee for SP of Contract and paid court fee only for SP of agreement ??
Thank you
Sudha
M Sudhakar
(Querist) 01 December 2013
Dear Experts - This is an actual ongoing case and I am the GPA DW 2 representing D2 in this case
By academic query - Do you mean to say that such a case is not possible in real life ?
Just trying to understand what you mean by academic query ?
Thank you
M Sudhakar
(Querist) 01 December 2013
Do I have a right to feel proud and flattered that two legal experts think that I,a hapless legal illiterate trying to make sense of a case I am caught in, am actually capable of composing an academic legal question out of the facts of the case I am faced with at this very moment in real life and unable to make sense of ?
Sudha
prabhakar singh
(Expert) 01 December 2013
What i could understand from facts stated by you that there was an agreement to sale between plaintiff and defendant builder.
Something in nature of default happened between plaintiff and builder defendant.
Plaintiff initially filed a suit of specific performance against the builder but as of now plaintiff has impleaded you to get your sale deed cancelled.
If facts summed up by me are correct then problem posed before you is that what is your defence to the suit of plaintiff.
The law is too much clear.If the agreement between plaintiff and builder defendant was a registered one you have no defence of a bona fide purchaser as an inspection of registry records could have let you know about the plaintiff's agreement.
But in case it was not a registered agreement the burden to prove the fact that despite having knowledge of the agreement of plaintiff you bought the property would lie on plaintiff shoulders for which he would need to assert a positive version of facts which occasion knowledge on you and not simply by assertion that your sale deed is the result of your collusion with builder defendant.
SO YOUR DEFENCE IS TO DENY KNOWLEDGE OF PLAINTIFF'S AGREEMENT AND BONA FIDE PURCHASER FOR VALUE AND NOT TOYING FOR WHAT TYPE AND NAME HIS AGREEMENT WOULD BE CALLED.LET THAT DEFENCE BE FORMULATED BY THE BUILDER DEFENDANT ALONE.
YOUR QUERY WAS BRANDED AS ACADEMIC SIMPLY BECAUSE OF
QUESTIONS BEGAN IN THAT FORM.
prabhakar singh
(Expert) 01 December 2013
So far your academic quest is concerned,you need to read section 2 of the Indian Contract Act,wherein you shall find that an agreement (oral,written, registered or unregistered)enforceable at law are called contract and those not enforceable at law are called void.
Bracketed words are input from me to let you understand definitions more clearly as there could be other laws demanding such agreements to be in writing
or in registered way only as of statutory necessity.
Guest
(Expert) 01 December 2013
If the builder had accepted the installment from plaintiff after entering in to fresh agreement with D2 the builder had done an offence.The D2 should engege a seperate advocate and defend himself and the issue had to be sorted out with builder and plaintiff without affecting the D2 peaceful possession and living filing strong evidences of his borrowings made on purchase of the flat and it is in mortgage also and let your advocate state that actual collusion is between plaintiff and builder only
M Sudhakar
(Querist) 01 December 2013
Mr.Prabahakar Singh
Sir
Much obliged for your crisp clean sharp reply and EMPHATIC advice in capitals as to what my defence should be and what I needlessly should not toy with
I shall try to modify top portion of the question to not give the impression of it being merely academic to still other experts to provide their learned opinion which I am sure will only substantiate what you have so clearly stated
Sir - The clarity of your reply has the effect of a magical balm of words of legal wisdom on my otherwise troubled mind - It makes me realize what a handicap legal ( or any other form of ) illiteracy is and what a great act of charity sharing of knowledge ( vidya daanam ) is especially when it is most needed
I thank you Sir and greatly admire the wonderful noble efforts of Lawyer's club India and all the experts like you who make it so.
Sudha
prabhakar singh
(Expert) 01 December 2013
Dear Mr.M Sudhakar!
Thank you for your appreciation which is more than i deserve.
M Sudhakar
(Querist) 01 December 2013
Prabhakar Sir
The agreement of D1 and Plaintiff is not registered one
I shall go through the contract act as you pointed for further academic clarity on the subject
As GPA DW2 I am facing cross examination in a few days from Plaintiff's lawyer and earlier D1 has declined to cross examine me and D1 is strongly defending his registration of property in favor of D2 and maintaining that D2 is the bonafide purchaser
As you suggested all I have to do is deny knowledge of previous agreement - I am GPA witness for the NRI D2 though I did handle the transaction on the instructions of the NRI D2 who is my family friend.
I have been advised to stick to the truth that we verified all documents necessary to verify the title of and any previous claims over the property and the said un registered agreement never existed or surfaced in our verification process.
It is not helping me that my lawyer is just rushing things through may be because he has sen a hundred cases like this and I have become doubting tom as the cross examination is nearing, - even if only to understand the entire legal frame of the case so that I feel confident when facing cross examination which should be simple as as you state,as most of the burden of proof lies on D1 and D1 is actively defending his registration of property in D2's favour
As DW2 who handled the transaction - I have to deny that I have any knowledge of the prior agreement and resist any attempts of the adverse party to try to prove otherwise
It is pertinent to mention that my lawyer has not shared any details of previous cross examinations of other witnesses in the case saying that I need not know and it will only confuse me more.
Sudha
prabhakar singh
(Expert) 01 December 2013
To answer you further i need to know what positive assertion has been made by plaintiff in his plaint about your having knowledge of his agreement to sale prior to your buying by registered sale deed.When you have to face cross examination that means plaintiff evidence is over then he must have adduced evidence of your's knowledge and he and his witnesses must have been already cross examined,either successfully or unsuccessfully that maters a lot.Your chief must have been recorded and therein you must have denied the plaintiff story of your having knowledge of his agreement prior to your getting sale deed registered.In cross examination answers you need to maintain that intact.Might be your cross examiner asks you when did you come to know first about plaintiff agreement then your answer should be when you appeared in his suit and got his plaint unless your written statement has explained it otherwise.
You can not be expected to know about an unregistered agreement unless you are told about that and builder interested in sale would not tell you as disclosure on his part would not materialize in a sale.Then it can be only plaintiff who would let you know about his agreement to sale either personally or by any one else that too on a convincing story of occasion .
M Sudhakar
(Querist) 01 December 2013
Mr.Narsimha
Sir,
Thank you for your expert advice
We engaged a separate lawyer though the builder offered legal assistance
The builder D1 is defending the registration in favor of D2
Our lawyer did state that D1 and Plaintiff seem to have colluded
D1 is claiming that D2 is the bonafide
purchaser and his agreement with plaintiff was cancelled by him.
Entire Transaction was white and through bank transfer and no bank loan was taken and nor was it mortgaged
We filed tax paid Receipts as evidence of possession
Adverse party filed cc of registered sale deed of D2 seeking to implead D2
and then accuse D2 of collusion with D1 seeking cancellation of the sale deed
But D1 argued that D2 has not even paid court fee for seeking cancellation as that would make the suit SP of contract and not SP of agreement that the plaintiff had filed
Hence I had wished to know what the difference was between Sp of contract and SP of Agreement and of course any other advice the experts may have to offer
Thank you
-Sudha
T. Kalaiselvan, Advocate
(Expert) 01 December 2013
Mr. Sudhakar,
I think Mr. Prabhalar Singh's elaborate reply has made everything very clear to you and your doubts got clarified. But you see, you never told that what was your defense through your written statement and chief examination. Mere collusion between the plaintiff and the D1 is not sufficient, you may depose before the court atleast during the cross examination that you are totally unaware of the previous transactions alleged to have taken place between the builder and the plaintiff moreover the plaintiff has not sought the relief of specific performance of contract to enforce the sale and has never stated that he was ready and willing to perform his part of the contract but it was the D1 who had deceitfully entered into a sale transaction with you, thereby the plaintiff has not come to the court with clean hands hence the suit is liable to dismissed.
M Sudhakar
(Querist) 01 December 2013
Mr.Prabhakar Sir
Thank you for the opportunity to further draw sage advice from the reservoir of your expertise
Plaintiff in his Chief affidavit dt.20.11.2012 states that,
" I submit that I further came to know about the alienation of suit flat by defendant no1 to D2 subsequently and on my application the hon'ble court permitted me to implead the D2 in the suit
D2 filed the written statement contending that she is not a party to the suit
As per the settled law the transaction between the defendants which took place during the pendency of the suit is hit by doctrine of lis pendence as per the provision of TP act.In view of the agreement between me and D1 being prior to the sale deedand it being in subsistence the sale deed in favor of the defendant 2 is illegal and liable to be cancelled "
D1 States in his chief Affidavit dt.30.5.2013 states that
"The sale deed dt.31.01.2007 in favor of D2 was executed by D1 which is much before the filing of the suit and more over there were no orders from this hon'ble court restraining the defendant no.1 through it's counsel on 28.03.07The plaintiff miserably failed to stick to the payment scheduled as agreed upon and no rights have accrued to him as he has not carried out his part of contract
The prayer for cancellation of registered sale deed dt31.01.2007 is absolutely not tenable under law as that would change the nature of the suit it self which is for specific performance of contract and more over the plaintiff has not paid necessary court fee for seeking the cancellation of registered sale deed.The above sale deed is not null and void and is binding on the plaintiff "
My chief affidavit dt.Sep 10 2013 states that
" I submit that D2 is bonafide purchaser of the suit schedule property from defendant.no.1 by paying huge amnount through sale deed no-------and she is contnuing in possession of the suit schedule property and D1 admitted the same and ever since purchase D2 is paying property tax also
The plaintiff can't seek such relief against this defendant at this juncture as there are lot of changes in the circumstances and the rate of property and there are no merits in the case of the plaintiff hence the suit is liable to be dismissed
I submit that the plaintiff and D1 seem to have colluded together and got created the alleged agreement of sale and filed the present suit to defeat the interest of this defendant over the suit schedule property.
Even otherwise the alleged agreement of sale is bad in law and cancelled by dD1 for the default by Plaintiff and hence the suit is liable to be dismissed.I submit that there are no privities of contract between the parties and the document of D2 stands good and it can not be cancelled.The plaintiff did not even pay court fee to that effect hence the suit is liable to be dismissed"
In any of the chief affidavits there is no direct mention of collusion between D1 and D2 or submission of any exhibits by plaintiff out of the 18 he submitted as exhibits ,to prove or even suggest that there was collusion
I know nothing- absolutely nothing that took place in previous cross examinations of other witnesses as my lawyer told me that there is no need for me to know about it as, he says, it will only confuse me.
I got chief affidavits of other parties from the lawyer only 2 days back and upon much insistence.
In none of the chief affidavits the word collusion is neither mentioned nor countered
I absolutely don't know what took place in cross examinations - My Lawyer simply says no need to know and any the papers are with the court and they can not be obtained before the cross examination which already is postponed
Is this some thing major to worry about ?
Thank you sir and you deserve all the gratitude I can express in words
-Jagan
prabhakar singh
(Expert) 01 December 2013
You need to tell me now :
(a)the date of institution of suit;
(b)the date of execution of your sale deed
and the date of registration thereof;
(c)has plaintiff pleaded that he has ever been ready and willing to perform his part of the contract;
(d)has builder denied his this pleading in his written statement illustrating defaults made by plaintiff resulting in termination of the agreement to sale with him.
Unless these things are categorically known ,any opinion now become misleading in view of the facts stated in your last post.
Because if your sale deed date is post to the institution of the suit then of course
it's fate would be depending upon the result of suit and if relief of specific performance has been sought by the plaintiff and the same is granted to the plaintiff, you would stand no where and you might have not sought any counter relief against the builder.!?
M Sudhakar
(Querist) 01 December 2013
Prabhakar sir
Date of execution of sale deed in favor of D2 is January 20 2007
Date of Registration of sale deed is Feb 4 th 2007
Date of issuance of first legal notice by Plaintiff through his lawyer to D1 is February 19 2007
Date of suit filed in court against D1 is
June 2007
Date of written statement of D1 filed in Dec 2007
Impleade petition against D2 April 2008
GPA Affidavit filed by D2 November 2009
Counter by D2 filed in January 2010
Amended petition of collusion btwn D1 and D2 filed by plaintiff some time btwn Feb and April/May 2010
D2 written statement filed in august 2010
Plaintiff claimed he was always ready and willing to perform his part of the contract
D1 is a very reputed reliable and efficient builder with close to 2 to 3000 apartments and villas in different ventures under construction even now
D1 accepts payment only in white and very reliable and transparent generally
The suit schedule project has 120 apartments all sold without any dispute except this case
D1 has an air tight written agreement that states as below
" Under no circumstances the buyer shall delay payment of installments for more than 3 months from the due date and that in case of delay for more than 3 months from the due date this agreement shall stand cancelled and vendor shall be entitled to charge cancellation charges @ 15% of the agreed total sale consideration "
" The vendor shall be entitled to re allot / sell the said apartment thus cancelled in favor of any other person.No notice from the vendor shall be necessary to the defaulting buyer to take action as stated here in,and such action shall be the sole prerogative and discretion of the vendor and the defaulting buyer shall have no say in or to object to the same
" Any time given to the buyer for fulfillment of his obligations here under by the vendor or the nominee of the vendor shall not be considered to be a waiver of any term or condition of this agreement nor shall it give any right to the buyer other than the time so granted.Such granting of the time etc.shall not prejudice the rights of the vendor in any manner what so ever "
By by July 2006 Plaintiff should have paid 80% of total sale consideration but Plaintiff paid only 5% due to which his agreement was cancelled - 2 months AFTER THIS CANCELLATION NOTICE the plaintiff apparently deposited a check for further 15% of total sale consideration ( bringing his over all total to 20 % )through a sales executive of the company and received from the sales executive a receipt and similarly got issued a mandatory letter ( issued to all customers )from the D1's company probably through the same sales executives known to him, to go and inspect the property and suggest any internal changes to the apartment.
Now the plaintiff claims that after being served with cancellation notice he had approached the client with an "oral" request to grant him time till the completion of the project to pay remaining dues all in one lump sum ,and that D1 satisfied with these new orally re negotiated terms agreed to the same and thus accepted further 15% of total sale consideration and satisfied with these orally re negotiated terms and conditions also issued him a letter to inspect the property and suggest any alterations to the interiors
Plaintiff claims that accordingly he visited the property and made some suggestions and was waiting for the D1 to inform him of the completion of the project to receive the remaining payment on registration
D1 has refused to entertain plaintiff's delaying tactics any more and actually forfeited the 20% paid by the plaintiff
D1 denies all these charges and points out point by point how miserably plaintiff had failed to pay his installments and that he had accepted further payment even after cancellation of plaintiff's agreement only in good faith that plaintiff will clear the remaining dues at the earliest as he had promised but that was not to be and hence the written agreement automatically stood cancelled
That in short is the dispute between D1 and plaintiff.
We learnt of this first only when a legal notice was left at our door step in late 2009 to appear in court or face exparte hearing and verdict
Hopefully this information is in line with what you expected me to provide Sir
Thank you for your kindness
Sudha
J K Agrawal
(Expert) 01 December 2013
There is nothing like 'Specific performance of agreement' it is only 'specific performance of Contract'. an agreement enforceable by law is a 'Contract' as per section 2(h) of the Indian Contract Act 1872. It is more cleared by section 2(g) of the said Act which says 'An agreement not enforceable by law is said to be void:'.
It means if an agreement is enforceable by law, it is a 'Contract' and if not enforceable, it is 'void'.
So please forget about the term "specific performance of an agreement". There is no such term in the practice of Law.
prabhakar singh
(Expert) 01 December 2013
Dear Mr.M Sudhakar !
The doctrine of lis pendens as per the provision of TP act Can not hit your sale deed is my firm opinion.
You just need to remember one thing all through your cross examination that you were never made aware of any prior agreement to sale between plaintiff and builder by any of the two and came to know only when you got copy of this suit.
To me you have a good case on merit.
All the best!
M Sudhakar
(Querist) 01 December 2013
Mr.Agrawal and Mr.KalaiSelvan Sir
Thank you for your expert advice
Agrwal Sir - The plaintiff apparently did not pay sufficient court fee to seek cancellation of registered document which would make it SP of Contract
Plaintiff's plaint copy is clearly titled " Suit for Specific Performance of agreement of Sale " noww hatever that means.
Your point seems to be very valid that since an agreement not enforceable by law it is automatically void and devoid of any scope for specific performance
So wonder what this plaintiff is seeking ?
Kalai Selvan Sir - Have been told that it is presumed that subsequent buyer for value who has taken possession of property is unaware of the previous agreements - still ( taking your advice ) I will make it a point to state this in the cross at appropriate time
And congratulations sir on becoming a featured member of LCI
Sudha
M Sudhakar
(Querist) 01 December 2013
Mr.Agrawal and Mr.KalaiSelvan Sir
Thank you for your expert advice
Agrwal Sir - The plaintiff apparently did not pay sufficient court fee to seek cancellation of registered document which would make it SP of Contract
Plaintiff's plaint copy is clearly titled " Suit for Specific Performance of agreement of Sale " noww hatever that means.
Your point seems to be very valid that since an agreement not enforceable by law it is automatically void and devoid of any scope for specific performance
So wonder what this plaintiff is seeking ?
Kalai Selvan Sir - Have been told that it is presumed by law that subsequent buyer for value who has taken possession of property is unaware of the previous agreements - still ( taking your advice ) I will make it a point to state this in the cross at appropriate time
And congratulations sir on becoming a featured member of LCI
Sudha
prabhakar singh
(Expert) 01 December 2013
ONLY WHEN YOU ARE ASKED! SORRY FOR INTERVENTION!
GOOD NIGHT NOW!
M Sudhakar
(Querist) 01 December 2013
Thank you Prabhakar Sir
For your valuable assessment,learned opinion and re assuring reply
You have simplified the whole problem for me by application of your mind,knowledge and experience, most importantly by narrowing it down to what my actual line of defence should be - otherwise I was looking at the whole world map while all I needed to know was the one single route ( or line of defence ) that I should follow without fail.
Good Night sir
and thank you for making my day so good.
prabhakar singh
(Expert) 02 December 2013
Dear Mr.M Sudhakar!
PLEASE READ LAST LINE OF MY LAST POST AS FOLLOWS:
"You came to know about the agreement between plaintiff and builder first only when a legal notice was left at our door step in late 2009 to appear in court or face exparte hearing and verdict"
instead of "and came to know only when you got copy of this suit"(treat it deleted and
substituted by above inverted phrase)
M Sudhakar
(Querist) 02 December 2013
Thank you Prabhakar Sir, for your intelligence and diligence in the case
The truth is that the Court notice was first sought to be served @ the native postal address of the NRI D2 ( mentioned in the sale deed ) through some local district or town court but as that was unsuccessful due to D2 being abroad, the same was then left at the door step of the suit schedule property but at a much later date
In the mean time,Having come to know of such an un served Court Notice @ the native postal address through relatives of D2 , and having come to know it was regarding suit schedule property we confronted the builder and the Builder by e mail,which we still have, informed us of the details of the case along with offer of legal support and assurances that we had nothing to worry as plaintiff's case will not stand legal scrutiny,and this was when we had first heard of it and only 1 or 2 months after this that a notice was left at the door step.
Before leaving the said notice at door step,the plaintiff or his men tried to reach me through various means but I was un available.
I also wish to know sir about the possibility of DW2's personal credibility and character coming under attack in the cross as I have been specifically warned about such a thing being possible and a right of cross examiner
Thank you
- Sudha
