Suit for specific performance of contract
Suresh Babu Rai
(Querist) 26 October 2013
This query is : Resolved
Respected Members!
I have filed a suit for specific performance of agreement. The facts of the case are, my client was offered with a house for sale, the sale consideration is Rs.6, 00,000/- in total. My client has accepted for the proposal of the defendant and has paid an amount of Rs.5, 00,000/- as advance (earnest money) six months ago and an agreement of sale was reduced in to writing on Rs.100/- NJ Stamp Paper.
The defendant received the amount of Rs.5, 00,000/- as advance and agreed to receive the balance sale consideration of Rs.1, 00,000/- on or before 01.10.2013. My client went to the defendant on the date aforementioned and requested the defendant to receive the balance sale consideration and to execute a Regd. Sale deed as agreed accordingly.
The defendant for one or other reason was postponing the same under one or other pretext. Finally I have issued a legal notice to receive the balance sale consideration of Rs.1, 00,000/- kept with me as case and demanded to execute a Regd. Sale Deed on or before seven days from the date of receipt of my legal notice.
The defendant received my legal notice, neither have replied for the legal notice nor have executed any Sale deed in favour of my client as such I have filed the suit along with an application praying the court to pass an ad interim exparte temporary injunction restarting the defendant from alienating the suit house to the third parties.
But unfortunately the suit was returned with an endorsement directing me to deposit an amount of Rs.1, 00,000/- payable to the defendant along with the suit.
I have resubmitted the suit and mentioned that. Courts shall not insist the plaintiff to deposit the balance sale consideration as he himself mentioned in the pleadings that he is ready to pay the balance sale consideration towards his part of performance and prayed that I may be heard on bench in this regard.
The case is called for my arguments and the Judge asked me for citation in this regard and adjourned after a week.
Whether Courts can insist the plaintiff to deposit the earnest money at the institution of plaint itself? Is there such provision?
Please guide me properly! Thank you one and all!!
Anirudh
(Expert) 26 October 2013
Merely that the buyer has sufficient money in his bank account to pay Rs. 1 lakhs towards balance consideration cannot be taken as ready and willing to perform his part of the contract.
In the normal circumstances, one will take Demand Draft for the balance consideration in favour of the seller, and send a photocopy of the DD to the seller along with the Legal Notice calling for the execution of the Sale deed and registration thereof.
Since the original of the DD will be in possession of the buyer, there is no threat that the seller will encash and not execute the sale deed.
In your case, the court is only asking you to deposit the money in the court. That is still safer than getting a DD made.
If I were in your position, I would have deposited the amount of Rs. 1 lakh in court (instead of thinking on technalities). Depositing the money would strongly indicate the readiness and willness of the plaintiff to perform his part of the contract.
ajay sethi
(Expert) 26 October 2013
agree with anirudh . deposit the said amount of rs 1 lakh in court
Rajendra K Goyal
(Expert) 26 October 2013
Well advised, however citation is not provided at this site, may search insiankanoon.com or judis. nic.com.
prabhakar singh
(Expert) 26 October 2013
Dear Mr. Suresh Babu Rai!
You have not stated of which state the matter is?
Hopefully not of U.P. where an agreement to sale with respect to immoveable property is
compulsorily required to be registered.
Another astonishing fact is out of 6 lac 5 was advanced as earnest for what?
Another mistake is that your client should have visited the registry office to get his presence noted on 01.10.2013 which could have for no doubt proved his 'readiness and willingness' to perform his part of contract.
Even in notice sent no date for registration was offered and your
client did not attend registry office.
Merely one circumstance is in your favor that proposed vendor remained silent and did not respond to your notice.
But then you are plaintiff and would need to prove your 'readiness and willingness'
independently by your own evidence which would now can be oral only.
Depositing balance money in terms of your case but you are disputing the same only to weaken your case which is not understandable by me.
It should be understood that relief claimed under S.R.Act are discretionary and may be refused by the court if it thought proper to ask you to deposit balance of consideration but you chose to dispute
that order.
No doubt there is no provision in law where under a court should ask you to do so but refusal to comply with such a direction of an equity court would lastly suggest that in fact you were not ready and willing to comply your part under agreement on basis where of court can refuse you to grant specific relief.
The direction in fact is due to your asking interim injunction against the defendant for which court may impose some kind of security and it for this end that court has directed so.
prabhakar singh
(Expert) 26 October 2013
Dear Mr. Suresh Babu Rai!
You have not stated of which state the matter is?
Hopefully not of U.P. where an agreement to sale with respect to immoveable property is
compulsorily required to be registered.
Another astonishing fact is out of 6 lac 5 was advanced as earnest for what?
Another mistake is that your client should have visited the registry office to get his presence noted on 01.10.2013 which could have for no doubt proved his 'readiness and willingness' to perform his part of contract.
Even in notice sent no date for registration was offered and your
client did not attend registry office.
Merely one circumstance is in your favor that proposed vendor remained silent and did not respond to your notice.
But then you are plaintiff and would need to prove your 'readiness and willingness'
independently by your own evidence which would now can be oral only.
Depositing balance money in terms of your case but you are disputing the same only to weaken your case which is not understandable by me.
It should be understood that reliefs claimed under S.R.Act are discretionary and may be refused by the court if it thought proper to ask you to deposit balance of consideration but you chose to dispute
that order.
No doubt there is no provision in law where under a court should ask you to do so but refusal to comply with such a direction of an equity court would lastly suggest that in fact you were not ready and willing to comply your part under agreement on basis where of court can refuse you to grant specific relief..
The direction in fact is due to your asking interim injunction against the defendant for which court may impose some kind of security and it is for this end that court has directed so.
R.K Nanda
(Expert) 26 October 2013
nothing to add more.
Suresh Babu Rai
(Querist) 27 October 2013
Thank You one and all!
I am from Andhrapradesh, even my case is from AP too!
I am not disputing the direction of the court in any corner.
My suit itself mean that I am ready to perfom my part of contract i.e. The court may be pleased 1) direct the Df to recieve the balance sale consideration,2) direct tthe Df to execute a Regd. Sale Deed, 3) cost of the suit and 4) other relief.
Sir!
There is every possibility in deciding the suit I may enter in to compromise with the Df by taking back my earnest money with bank interest, the suit may dismiss on merits or other similer grounds. When my suit itself indicates that I am ready to perform my part of contract, how come a court insists me to deposite such amount.
In fact, to safe gaurd the rights of my clinet it will be better to deposite the amount, but when there is no such provison or precedent or earlier decisions in this regard for the court to direct me to do so , why should I?
prabhakar singh
(Expert) 27 October 2013
I have already spoken in my first reply that the court has no right to direct you to deposit balance amount of consideration before grant of final decree in your favor.
It goes when execution starts.
But unfortunately i would not like to subscribe your view that filing of such a suit in itself is a prove that you were'ready and willing'at all relevant time to perform your part of contract as in that case no trial of any such suit would be required if defendant comes and admits execution.
But that is not the case.It is defence to plead that you were not ready and willing to perform your own part of agreement hence once you fail to prove,
court shall refuse you decree of specific performance granting a decree of refund,on the principle that he who seeks equity must do equity and a plaintiff can not take benefit of his own wrong.
Suresh Babu Rai
(Querist) 28 October 2013
Thank you Sir!
I have just resubmitted my suit along with a citation that courts shall not insist the plaintiff to deposit the balance sale consideration at the scrutiny stage ( ALT 1992 Part Page No.27)along with IA therein and the Hon'ble Judge pleased to grant me an ad exparte temporaty injunction orders against the respondent/defendant restraining him from alienating the suit house in favour of third parties.
Thank you one and all......
