Seller not honoring registered agreement of sale
Stanley
(Querist) 09 June 2012
This query is : Resolved
I need some advice in the following matter:
I decided to purchase an apartment in Mumbai and after we signed the first MOU in May 2011 where the seller mentioned that he has all the necessary paperwork, he began to inform us of issues.
In the MOU he also mentioned that the execution of the agreement would happen on or before 26th May 2011.
After taking the initial token amount of INR 1,00,000 he informed us after a few days that he did not have his original agreement. He also informed us that he had an existing loan which was under litigation with Bank of Baroda due to non-payment of past dues and that he had not paid his society dues amounting to INR 4,25,000.
Under the advice of our broker we decided to go ahead with the sale even if it meant a bit of delay. We paid the society dues on the seller’s behalf.
After paying the society dues, the seller again began avoiding our calls and did not provide the necessary documentation for registering the property.
Fearing the worst we paid the seller additional INR 8,00,000 to help expedite the document collection. A Second MOU was signed on 1st August 2011. The date of 5th September was listed for peaceful possession of the flat.
The seller dishonoured the second MOU terms.
Finally the registration happened on 3rd Oct 2011. The completion of the sale process took almost 5 months (it began in mid May 2011 and was registered by 3rd Oct 2012).
This was because the seller kept collecting money from us during this period and kept delaying the registration.
There were times when the seller simply would not answer our calls and respond to our queries. All monetary transactions were documented and receipts were maintained.
A home loan pre- approval was taken from a leading bank for an amount of 5 million INR. The sale price of the apartment was approx. 8.3 million INR.
I kept the bank in the loop of all activities and delays.
As per our agreement we paid the seller 3.3 million INR in the period of 5 months (May to 3rd Oct2012) and the pending 5 million INR was to be paid by the bank on a specified date of 13th Oct.
The bank loan manger delayed the payment by 3 working days. The PO for 5 million was made available to the seller on 18th Oct 2012. The reason for this delay was explained in two parts:
1. The second valuation visits was cancelled by the seller at the end of Sept 2011 and due to the delay the bank pay-out to seller was delayed
2. The banks lawyer was not available on 13th and 14h of Oct to handover the PO to the seller. This was informed to the seller and he agreed to collect the PO on 18th Oct. This was a verbal agreement between the bank and the seller.
Now the seller took this opportunity to demand INR 1.5 million from me. Please note the PO was available on 18th Oct and the seller refused to collect it unless I paid him the additional amount as compensation.
The seller is not giving possession of the apartment. He thinks that because of the 3 day delay he can extort INR 1.5 million from me.
He took 5 months to complete the deal. We have signed MOUs and reciepts of all transactions.
He has my INR 3.3 million and I have paid all the duties and brokerage. In total I have spent INR 4 million and do not have possession of my apartment.
Since I had no option I filed a civil case is in high court. I have incurred expenses of approx. INR 2,00,000 in court fees and lawyer fees. Not to mention the mental anguish and agony brought about by this ordeal.
While I await justice, I request your expert advice on the matter.
How can I best explain and present my situation to the court so that the outcome is favourable?
Any advice or guidance will be much appreciated.
Kind Regards
Stanley
Nadeem Qureshi
(Expert) 10 June 2012
Dear Querist
you should contact a lawyer.
Stanley
(Querist) 10 June 2012
Dear Mr Nadeem Qureshi,
I already have contacted a lawyer and the case is in the high court.
I was asking for guidance on the best way to approach the situation.
It seems like the seller would like to drag the matter for as long as possible since he has both my money an my appt possession.
Regards,
Stanley
Rasik Dagli
(Expert) 10 June 2012
You have to carry on with the suit and it is likely to take time also. Better to get an interim injunction against him from transferring flat in any manner or creating an encumbrance on it.
You are bound to succeed. Please note that time is never an essence of contract in an agreement to sell the property. In your case you have paid various amounts from time to time and time factor will not be against you.
Rasik Dagli
Advocate
ajay sethi
(Expert) 10 June 2012
reach an out of court settlement with seller . file consent terms in high court . it is in your interest . disposal of suit may take 15 years in bombay high court
ajay sethi
(Expert) 10 June 2012
reach an out of court settlement with seller . file consent terms in high court . it is in your interest . disposal of suit may take 15 years in bombay high court
Stanley
(Querist) 10 June 2012
Dear Mr Rasik and Mr Ajay,
I thank you for your reply and guidance. I have filed for interim relief, and a stay order.
I have attempted an out of court settlement but when the seller resorted to extortion demand of INR 1.5 million for a 3 day delay caused by him, I could not agree.
While I do not like the fact that the court case may be drag on for multiple years, I cannot see myself paying off the seller as I do not trust the person anymore.
Appreciate your input and expert advice on the matter.
ajay sethi
(Expert) 10 June 2012
if you succed in obtaining a stay against cretaing third party rights on the property the seller may settle as he knows that suit wont be disposed of for years .
K.K.Ganguly
(Expert) 11 June 2012
He is just trying to blackmail you. He knows that he shall have to handover the flat to you some day but he also knows that it will take around 15 years which you will not be able to bear. So, it will be prudent to settle the matter amicably.
Shonee Kapoor
(Expert) 11 June 2012
It is a game of brinkmanship only. Stay firm.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Stanley
(Querist) 11 June 2012
Dear Mr. Ajay, Mr. Ganguly and Mr. Shonee,
I appreciate you taking the time and effort in replying to my query.
I am confident that I will get a stay order in the next few months. My lawyer is working on the same and it is listed in our prayers.
We have also requested in our prayers that the seller pay rent for the time he is living in my apartment. He has been living in the apart since Oct 2011 when the registration was completed. He never gave physical possession.
As some experts have suggested, I have tried to settle amicably but it has not been successful due to nature of the seller. He will do everything in his power to extort money and extend the nuisance.
Multiple attempts to mediate have been tried with no success. The seller’s demands only keep increasing.
If it comes down to waiting for justice, then I feel it is in my best interest to hold firm and keep the faith. I trust that the high court judges will review my situation and pass a fair judgment.
Regards,
Stanley
