Specific performance by seller against buyer
Anil Kr Garg
(Querist) 21 December 2012
This query is : Resolved
1) I signed MOU for sale of my agri.land in Jan'12. Buyer did not return copy of the same after signing it himself. Some token amount was paid at the time of my signing the MOU, both in cheque as well as cash.
2) Under MOU, series of payments were required to be made in April,June, Aug, & Oct when SALE DEED was to be executed. NO payments have been made till date. This condition in MOU is not subject to any other condition, and hence, should be construed to be an independent obligation of seller, not subject to fabricated dispute under following clause.
3) Under MOU, AGREEMENT FOR SALE was to be made by purchaser and given to seller for execution. NO such Agreement has actually been given so far, despite my sending notice in april treating MOU as dead but WITHOUT PREJUDICE, giving him 7 days time to send me draft agreement with payments due till date. In his notice, he is alleging that draft agreement was sent through Broker and alleging default on me. In another notice in May, I offered to treat the MOU as Agreement if he could make due payments as per MOU within 7 days. He repeated his allegation of default and refused to my offer to so treat the MOU as Agreement.
4) Actually, purchaser is a developer and appears that does not have money to complete the purchase. He has sent me notices alleging gas pipeline being planned through my land due to which some land would be wasted, general diminution in the value of land on this account, and huge loss of profit due to alleged default in finalising AGreement to Sell, and hence, claimed huge amount as damages.
5) In my reply, I have refuted all such allegations, and still, WITHOUT PREJUDICE, have given him 7 more days time to make full payment and execute the SALE DEED. I know he will not respond positively and instead, will demand damages and avoid SALE DEED because his intention is to embroil my property into long drawn litigation and force me to come to meet his terms of blackmail.
6) I am now thinking of filing suit for specific performance myself.
Questions:
(a) Once I file suit for specific performance, does it mean that he will never be able to file any such suit regarding my land?
(b) As Interim order, Can I demand immediate execution of sale deed, pending adjudication on claims for damages from both sides (I will claim interest for delays in payments)
(c) Failing above interim order, can I demand that purchaser be asked to deposit full payment in court so as to prove his capacity and willingness, and also to ensure that both parties have equal stake in such litigation
(d) in my application for interim relief, can I demand that in the event first two reliefs are not granted, the MOU to be declared "null and void" so as to prevent the party from misusing it to embroil my property into dispute so as to prevent me from selling it, without his own genuine intention of buying it at all?
(e) If he files such suit to claim SALE DEED and DAMAGES first, can I demand that FIRST he executes SALE DEED or deposits full payment with court, and then, court goes about trial for damages?
Kindly advise. Thank you in advance.
Raj Kumar Makkad
(Expert) 21 December 2012
a. He can not only file counter claim but separate suiit on separate cause of action.
b. No. Sale deed shall be last part of relief.
c. no. There is no such law.
d. No. You can demand it as a relief based on merits of the case.
e. yes.
Anil Kr Garg
(Querist) 22 December 2012
Thank you sir, thank you very much. As regards requirement for Agreement for sale/MOU u/s 17 of Registration Act, there is considerable uncertainty and courts have held different views despite sec 53A of Transfer of property suggesting that such registration is necessary (use of words "notwithstanding that the contract, THOUGH REQUIRED TO BE REGISTERED, has not been registered, or ). Kindly advise what you think about it.
If opposite party is disabled to move court because of non registration of MOUs, I am still safe and would not need to move court myself.
Kindly advise.
Raj Kumar Makkad
(Expert) 29 December 2012
Engage a local lawyer and follow his direction as per above noted advice.
