Time limitation for specific performance

pawan kumar (Querist) 26 April 2012 This query is : Resolved
I PAID ADVANCE MONEY 33PERCENT OF DEAL AMT TO PURCHASE PLOT OF LANDIN 2008 AND REGISTRY WAS TO BE GOT DONE ON OR BEFORE31 MARCH 2009.I COULD NOT ARRANGE MONEY AND ASKED FOR ONE MONTH TIME WHICH WAS GIVEN BY SELLER. I COULD NOT MANAGE IN EXTENDED TIME. SELLER GOT HIS ATTENDANCE MARKED BEFORE EX. MAGISTRATE CERTIFYING HIS PRESENCE ON 31MARCH AND 30 APRIL 2009. SELLER SERVED LEGAL NOTICE GIVING ME ANOTHER OPPORTUNITY WHICH ICOULD NOT AVAIL . IN THE NOTICE HE STATED THAT MY AGREEMENT IS REVOKED AND MONEY PAID IS FOREFEITED.AT THIS STAGE OF TIME THOGH 3 YRS WILL ELAPSE ON 30 APRIL 2012 CAN IDO ANYTHING LEGALLY TO PROTECT MY ADVANCE MONEY PAID. I MAY MENTION THAT AGREEMENT SIGNED WAS UN REGD AND IT SPECIFIED THAT IN CASE BUYER FAIL TO GET REGISTRY IN TIME HIS ADVANCE WILL BE FOREFEITED.

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Adv.R.P.Chugh (Expert) 26 April 2012
Mr.Kumar,

Excuse if I may sound terse but the Law favours the vigilant and not those who sleep over their rights. I have the following to opine :-

1. Unregistered Agreement to Sell is still binding.

2. Notwithstanding anything stated in the agreement - he can retain only a reasonable amount out of the earnest money and certainly not 33 per cent of the whole deal which is TOO MUCH. (Courts have repeatedly held this)

3. The fact that you sought extensions - speaks volumes that time was of the essence of the contract - and since you defaulted even after extension - he gets right to rescind/revoke the agreement - but still not to appropriate the ENTIRE AMOUNT.

4. You can seek to serve a notice and then file a suit to recover excess amount other than what was reasonable - it would be his burden of proof to prove that 33 per cent money of entire transaction was reasonable in the circumstances.

My above opinion is based on S.74 of the ICA & the SC Decision of Fateh Chand v. Balkishen Dass (1964 SC)

Feel free to talk !

ajay sethi (Expert) 26 April 2012
well advised by chugh .

Raj Kumar Makkad (Expert) 26 April 2012
Courts have to decide the matters on the basis of contracts agreed between the parties in dispute in such cases. Court announce the terms of the agreement as null and void only if the same is against public policy.

Proving 33% amount as advance in the floating market is not a big amount and not against the public policy. When a party is given reasonable opportunities to perform his part of contract and it fails then it cannot claim for equity before law.

You cannot claim even a single penny back from the seller in the given case.

It is further astonishing to note that last date of 3 years of contract is to expire on 30th April 2012 and you are raising this query on the night of 26th April 2012 when even you have no time to serve notice to the seller and file the suit thereafter.

God helps those who Help themselves. Keep on sleeping for some more years.