Important- agreement of sale not fulfilled

Of course the first buyer can enforce the agreement and proceed criminally as well as civil remedy for enforcement of the agreement since you have not resinded the agreement to sell and issued proper notice of forfiture of earnest money.

Dr. J C Vashista  # 9891152939

Dear Naina, 

In my view the first buyer was in breach of terms of agreement by not performing his obligation thereto, and time being essence of the contract, you were within your right to cancel the agreement and forfeit, which is precisely what you did. The first buyer can seek specific performance through a court but his action won't reap any benefits, if the facts stand as you said them to be. But you'd be forced to defend in a civil action which is expensive and onerous. 

Also execute Sale Deed with the second seller before first files a suit. 

*this opinion is provisional and subject to a perusal of concerned documents.

Feel free to talk !

It all depends on what was written in the agreement. Was any fime of performance i.e. payment mentioned in the agreement? Was there any forfeiture of advance due to non performance clasue mentioen in the agreement?  If these clauses were mentioned then he can not do any thing. If not then certainly he can take you to Court.

Dear Naina,

The first buyer can't force you but if the first buyer still have his case within limitation period which is 3 years, can file a suit for recovery if he is really interested in having his money back from you. Thats his right which he can aggitate before Court of Law on the basis of agreement to sell executed by you and having acknowledged money as part consideration from him.

Parallely, the first buyer, despite the notice of cancellation of agreement to sell issued by you, can proceed with filing a suit for specific performance of contract and challenge the sale-deed if any executed by you in favour of the second buyer. As per law, the limitation is 3 years for filing a suit for specific performance of contract/recovery.

Here, I would like to understand as you have not stated whether the agreement to sell entered into between you and the first buyer was unregistered or a registered agreement to sell.

This point I raised for the reason, if at all the first buyer proceeds/chooses to file a suit for recovery or else suit for specific performance of contract and cancellation of sale-deed, if any executed by you in favour of second buyer, and the agreement to sell which is executed between you and the first seller, you can raise objection at the time of evidence that the agreement to sell is unregistered. The reason is, as per registration act, any agreement or document other than a will wherein the transaction involves more than Rs.100/- needs to be compulsoarily registered.

Once you take objection at the time of Evidence, the said agreement to sell could not marked exhibit and the articles/covenants and the entire agreement to sell cannot be read in Evidence.

No need of registration of agreement of sale for its admission in evidence in a suit for specific performance.  

I endorse the same views as that of Sri Yougesh V. Nayyar with regard to other aspects.

Thanks to everyone for prompt replies.

About the ageement of sale:

1)unregistered and on a Rs20 stamp paper.

2)Deposit amount mentioned but cheque number etc not mentioned.

3) It was mentioned the seller would lose deposit if they forefeit and buyer would lose if they forfeit.No mention of any interest on the deposit .There was only mention of sueing for specific performance for getting deposit money.

4) Agreement was for valid 4 months but the words "time is of essence' were not written in the agreement.

5) The buyer did not contact us during this period and when we contacted him the day the agreement expired, he said he is still waiting for bank loan and needs more time. We found out from other sources that he may not easily get a bank loan as he is self-employed and 2 banks had rejected his application. So we did not want to wait for him anymore.

Hope this clarifies matter. I am unclear as to how we have broken the deal since the buyer did not have the money ready on time and we sold the property after the expiry of the agreement.

Thanks for you replies.

Dear lawyers,

Please would someone reply. I am anxious.

Thanks

Naina