Suit for specific performance
pawan kumar
(Querist) 10 March 2012
This query is : Resolved
buyer of property after paying token money i.e biana did not turn up to pay balance payment and get sale deed executed.in between i served him legal notice that he should pay balance amt. lest his biana will be forefeited he ignored my notice and didnot come. now period of 3 yr. is elapsing shortly and he has come to have his biana amt back.i agreed for this but he could not produce original agreement, and pleaded to write fresh agreement stating that original agreement is cancelled and amt. paid as biana is recd. back. should i agree. in case idonot asgree can he go to court for specific performance withot orignal agreemene which i suppose is lost. can he file case on the basis of legal notice served by me which stated full facts about deal entered betweenus.
ajay sethi
(Expert) 10 March 2012
was there clause in agreement that on event of filaure to pay balance amount within specified period token amount would be forfeited .
in other words was time the essence of contract?
Kirti Kar Tripathi
(Expert) 10 March 2012
In the legal notice you have admitted to taking Biana, if he go to court for return of amount, you are liable to produce said agreement, if there exist no such condition of forfeiture of biana, you have return the same.
Raj Kumar Makkad
(Expert) 10 March 2012
You are not liable to return biana anyway to him in the given facts. The buyer had to perform his part of contract which he failed to adhere to even after receipt of your notice. You should not refund him even a single penny especially when he has even lost the original agreement and wants to executed afresh.
Even if buyer go to court, he shall have to suffer only humiliation and nothing more than that.
Adv.R.P.Chugh
(Expert) 10 March 2012
You've not specified whether the original agreement provided for forfeiture of earnest(bayana) on failure to fulfill his obligations. If there is your are entitled to forfeit a reasonable amount out of the bayana(The full amount may also be the reasonable amount). As regards SPecific Performance he is not entitled to the same in teh facts of the case.
Sushil Sharma
(Expert) 10 March 2012
matter will b decided only on the terms and conditions of the agreement. however it is also made clear that first of all cancel the original biana agreement. partly agreed with Makkad sir,
