Case law : Specific Performance

Please find one case of Bombay High Court attached herewith which might help you.

 This ones a real Good case law...Way to go Snajeev...ALL THE BEST.....

I am really thankful to you for providing me with the case Law. It is crystal clear from the said case law that the payment thorugh cheque is from the date cheque is given and not from the date it is honored.

I am really thankful to you.

Mr. Jhunjhunwala! Can you tell me whether the buyer has admitted the receipt of cheque in writing?

Wehter the written document in your case say MOU duly signed by the parties to the contract in the presence of the witnesses also contain the delievery of the cheque by buyer to the seller?

If answer to both these questions is negative then how can you prove that you had given a chequ to the seller?

Dear SIr

The MoU itself contains the fact that the first payment is by way of cheque. Cheque details are mentioned therein. further in thier notice reply they say there is no question of depositing cheque which clearly indicates to the fact that they have received the cheque.

Witness in this case is a respectable public figure of the area.

I think the case law provided by Adv. Sanjeev Kuchhal has upto an extent cleared my doubts and have support the theory.

I thank you for taking out your precious time and replying to my query.

I am in a similar situation where a cheque was given as part consideration for purchase of a property while execution of an “Agreement to Sell”. Now the said “Agreement to Sell” is up for Specific Performance. My dilemma is though the Cheque has been given by the buyer the Seller, who did not encash it. Seller demanded Demand Draft in lieu of Cheque after One month. Thus the cheque was replaced with Demand Draft. That too (Demand Draft) was also returned without assigning any reason. Subsequently, Seller assured the buyer, in writing to execute Sale Deed, with in four months. Where as Seller who is GPA of ‘Original Allottee’ never provided NOC  from the ‘Original Allottee’ at any point of time to obtain mandatory permission to make a transaction, neither performed his part to execute “Sale Deed” against the Agreement to Sell, in reference. Thus, the same is up for Specific Performance, in trial court.

Do we have any judgement of Supreme Court or High Court for citation, where it is laid down that if a party gives a cheque to the other party it is onus of the other party to deposit the same for encashment and it will be presumed that the Buyer has discharges his obligation under contract by giving the said cheque to the Seller.

Download the file uploded by Mr. Sanjeev Kucchar.

It is exactly what you need.

Sanjeev has rightly cited the relevant citations. I go with them.

I think my case is different. In my case Cheque was replaced with Demand Draft. That Demand Draft was also returned without assigening any reason. Thereafter, Buyer contacted seller (the GPA holder) to conclude the deal and to provide the concent of the orignal allottee, to obtain the mandatory permission from Authorties to buy the property in reference. GPA holder assured the buyer in writing to arrange the Sale Deed with in four months.

The GPA, never ever raised the issue of the token money with buyer at any point of time. However, now in the trial court he is raising the issue that Agreement to Sell in reference is without any consideration, thus not valid for specific performance.

Looking forward to expert help.