Flat owner not responding
NISHIKANT SOMVANSHI
(Querist) 04 March 2015
This query is : Resolved
Dear Sir's
I'm staying in Mumbai, I have purchased resale flat at Poona, Which is jointly owned by husband and wife. Who presently working at Assam State. Total consideration fixed 38 lac out of that 8 lac transferred from my account to flat owners account as token amount which is mentioned in agreement, and decided to take balance 30 loan from bank on registered agreement for sale. on 23rd January,2015. I had paid stamp duty, registration charges. we all purchaser, seller and witness put signature, thumb print and photos on agreement in registrar's office. unfortunately registrars office closed 6 pm and our agreement not registered. next 3 days 24,25 & 26th January was holiday. As per their pre schedule flat owner went back to
Assam and requested me that he will confirm the next date for registration. mean time I applied for loan and sanction letter emailed to flat owner. reply to that he confirmed registration date on 26th February,2015.and requested me to present at Poona. Accordingly I reached there but owners was not there. I tried to contact them but they not received my calls, not replies to sms,email. same day afternoon I received sms form owner he wrote " As discussed I have not received the payment.I am coming at my flat" I reached his flat and found he is alone. I asked him about his wife, he said she is on the way and will reach within an hour. Also I explained him that without registered agreement bank cant disburse the loan. He said to me that he will reach at registrar office with one hour with his wife. again I went there and wait till 5.40pm but he not came and not respond to phone,sms,email. With suggestion of The Advocate I admitted agreement in registrar office. and acknowledgement emailed him. But no any response from there side. Please give me your valuable suggestion. What legal action I have to take.Again I want to point that sign, thumb, photos put on agreement by all. Thanks in advance to all experts. eagerly waiting for reply.
Jayaraj Poojari
(Expert) 06 March 2015
Based on the facts mentioned by you,it is understood that you have advanced part of the sale consideration,executed 'agreement for sale'(though not registered) and are willing to perform your part of the contract and the other party i.e., the owners, are not willing to perform their part of the contract. As you are not in possession of the impugned property you may not be able to claim relief under Section 53A of the Transfer of Property Act (Doctrine of Part performance). However, you have a relief under "Specific Relief Act, 1963" where you can file a suit for 'Specific Performance of the Contract'. i.e., filing a suit before the jurisdictional court (where the property is located) seeking the court to order the specific performance of the contract (i.e., to complete the registration process and hand over the possession of the property). If the owners are unwilling to sell the property they may opt for rescinding the contract but the Court may not rescind the contract as the reasons (based on the facts mentioned) for rescinding the contract wouldn't be strong.
T. Kalaiselvan, Advocate
(Expert) 08 March 2015
The unregistered sale agreement is not considered as valid agreement however it can be treated as receipt for payment hence alternative relief can be sought. You issue legal notice to the owners and instruct them to comply with the requirement for registering the sale agreement since the agreed advance amount has already been paid to them, on the basis of their reply decide further course of legal action.
