Re: sale deed
vinod sharma
(Querist) 08 February 2012
This query is : Resolved
sir
my father has a property in delhi for which he signed an agreement to sell on a stamp paper of Rs. 50/-. Now after signing the sale agreement he went into depression for which he had been treated in GTB Hospital and by neurologist of Ganga Ram Hospital.
now he is not interested to sell the property for which he has taken an advance (Bayana.
one of the condition in the agreement states that he has to ay double the amount which has been given by the buyer. The agreement is not attested by any notary etc.
i want to know about the legalities involved as i m not in financial position to honour the agreement.
pl. suggest / guide me in this matter.
ajay sethi
(Expert) 08 February 2012
how much was advance taken ? what are other terms and conditons of agreement ?
without going through the agreement for sale it wont be prudent to advise you .
if agreement for sale operates as conveyance and document is understamped it would be inadmissible in evidence .
contact a local lawyer in delhi . let him go trhough the papers of your case
Devajyoti Barman
(Expert) 08 February 2012
Your father can cancel the agreement and return the earnest money.
Whatever be the clause in the agreement the defaulting party is not liable to pay or forfeit the money which is more than paid as earnest money.
So relax.
Sailesh Kumar Shah
(Expert) 09 February 2012
If you post contents of agreement, opinion can be formed.
or you should engage lawyer for further guidance.
vinod sharma
(Querist) 09 February 2012
at the outset thanx for ur reply. the purchaser is insisting to pay double the amount paid as bayana. however there is a clause in the agreement for sale
1. that in case the Second Party fails to pay the above said stipulated period, then the earnest money shall be forfeited. However, in case the first party fails to abide by the terms as mentioned above, it shall pay to the Second party an amount equal to the double of earnest money paid.The first party shall have no objection if required documents are prepared in any names.
2. That if the first party violated and infringes the terms and conditions laid down in this agreement for sale, then the second party shall be entitled to get the said transaction to complete through the court of law under the suit for specific performances at the costs land expenses of the first party.
the agreement to sale has not been registered of attested by any notary. pl. let me know that does the purchaser move the court for claim of double the earnest money. are there any precedence / judgements in such type of cases
with regards
vinod sharma
ajay sethi
(Expert) 09 February 2012
your problem is you dont want to spend on legal fees . we have already given our opinion . consult a local lawyer
ajay sethi
(Expert) 09 February 2012
on second thoughts i am giving you judgement .
as you have failed to pay balance amount tthe urchaser is justified in asking for double the earnest money . on account of breach of agreement damages have been quantified . your liablity is to pay double the earnest money .
ajay sethi
(Expert) 09 February 2012
In Dadarao v. Ramarao the default clause in the agreement to sell stated that in the event the sale deed was not executed by the seller by 15th April 1972 in addition to the earnest money a further sum of Rs.500/- would be given “and no sale deed will be executed”. When the sale deed was not executed, the purchaser filed a suit for specific performance. The trial court dismissed the suit stating that the remedy of ordering specific performance was a discretionary one. This was reversed by the first appellate court and specific performance was ordered. The order of the appellate court was affirmed by the High Court in appeal. In a further appeal by the seller, the Supreme Court observed that the sum of Rs.500/- “perhaps represented the amount of quantified damages or, as the defendants would have it, interest payable on Rs.1000”. It was held that if the agreement had not stipulated what would happen in the event of the sale deed not being executed then perhaps the plaintiff could have asked for a decree of specific performance. The judgments of the appellate court and High Court were set aside and the judgment of the trial court was restored. Consequential directions were issued to the seller to return to the purchaser the earnest money and the extra sum of Rs.500 together with interest.
9.
ajay sethi
(Expert) 09 February 2012
IN THE HIGH COURT OF DELHI AT NEW DELHI IA Nos. 5897/08 (u/O 39 R 1 & 2), 8690/08 (u/O 39 R 4 CPC) in CS(OS) 918/2008
it appears to this Court that the preliminary objection as to the maintainability of the present suit should be decided against the defendant and in favour of the plaintiff. While the agreement spells out the consequence of cancellation in the event of the buyer committing a breach, if the seller commits the breach he is bound to refund to the purchaser twice the earnest money. This does not in any manner imply that the purchaser cannot seek specific performance.In such event the seller cannot be permitted to take advantage of being in breach by denying to the purchaser specific performance of the agreement to sell.
