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Sale agreement cancelled, amount not returned

Hi experts,

I was looking to buy a property and found a suitable one and entered into an Agreement of Sale, sometime in March 2016 paying the seller about 15% of the amount and the agreement had the time essence of 3 months and no clause mentioning what should be done in case of non-completion of registration.
He had paid the amount taken by me to another seller to buy another property.
However for various reasons I could NOT arrange the remaining funds and asked the seller to return the amount to which he told he can do it only after selling his property.
He entered into an Agreement of Sale with another buyer and has returned about 70% of the advance which I paid to him and took back and destroyed the agreement which I had entered into. However I have photos of these documents.
He has completed the sale transaction received full amount from the buyer but NOT paying the remaining amount which he is supposed to pay me.
On top of it he has gone overseas on his official work, making it impossible for me for a face to face discussion.
I have whatsapp conversations which only tells that he will transfer the amount, but nowhere it is mentioned how much should I receive.
I am aware that he has not received any amount from his seller and that sale transaction has been cancelled because of my delay.

Now,
1. What legal remedies do I have to get my money back?
2. If I send a legal notice I would NOT get any response as he is NOT in country, will I still be able to file a case?
3. Can I file any sort of criminal cases to expedite the recovery?
4. Can he tell that he cannot pay the amount as it has caused him losses or can he claim that he would pay me back only after he receives it from his buyer?

Thanks in advance

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4 Replies

Kumar Doab (FIN) 05 June 2017

‘Buyer Beware’

Applies to property deals.

The local counsel of unshakable repute and integrity specializing in revenue matters and well versed with Local Laws/Rules and that has examined all docs/communications can provide proper legal opinion.

The drafting of agreements/deeds by a seasoned counsel may cost you some FEE but can defend your hard earned monies and long term interest.

There are ‘n’ number of threads at LCI by unsuspecting querists/buyers that have been/get/can get fleeced e.g;

https://www.lawyersclubindia.com/experts/Property-sold-to-two-persons--643351.asp

https://www.lawyersclubindia.com/experts/Plot-sold-without-converting-to-layout-643366.asp

Kumar Doab (FIN) 05 June 2017

The copies are secondary evidence.

Coupled with SMS/Whatsapp chats may.............................may provide some reliance.

Kumar Doab (FIN) 05 June 2017

Originally posted by : Sandesh
	Hi experts, I was looking to buy a property and found a suitable one and entered into an Agreement of Sale, sometime in March 2016 paying the seller about 15% of the amount and the agreement had the time essence of 3 months and no clause mentioning what should be done in case of non-completion of registration. He had paid the amount taken by me to another seller to buy another property. However for various reasons I could NOT arrange the remaining funds and asked the seller to return the amount to which he told he can do it only after selling his property. He entered into an Agreement of Sale with another buyer and has returned about 70% of the advance which I paid to him and took back and destroyed the agreement which I had entered into. However I have photos of these documents. He has completed the sale transaction received full amount from the buyer but NOT paying the remaining amount which he is supposed to pay me. On top of it he has gone overseas on his official work, making it impossible for me for a face to face discussion. I have whatsapp conversations which only tells that he will transfer the amount, but nowhere it is mentioned how much should I receive. I am aware that he has not received any amount from his seller and that sale transaction has been cancelled because of my delay. Now, 1. What legal remedies do I have to get my money back? 2. If I send a legal notice I would NOT get any response as he is NOT in country, will I still be able to file a case? 3. Can I file any sort of criminal cases to expedite the recovery? 4. Can he tell that he cannot pay the amount as it has caused him losses or can he claim that he would pay me back only after he receives it from his buyer? Thanks in advance

What exactly do you mean!

Firdosh Kassam (Karachiwala) (ADVOCATE & SOLICITOR firdoshkassam@hotmail.com) 05 June 2017

1. An agreement of sale to be effective and legally binding has to be registered. Without registration the court may not entertain any suit and it will be a long drawn battle since the original agreement is already destroyed. You should have lodged a police complaint immediately when he did so and should have given a legal notice to him for civil and criminal proceedings. If your agreement had an Arbitration clause you should invoke that clause and refer the matter to any of the modes of Alternative Dispute Resolution (ADR). In such cases it is better to settle than to go for costly litigation.

2. Yes you can file a case after serving a notice by registered Speed Post. However, you will have to pay the court fees on the value of the property and jurisdiction of the court will depend on the valuation.

3. This being a civil matter, criminal proceedings may not be effective unless you prove fraud, cheating, wrongful gain to him and wrongful loss to you, breach of trust. Before taking criminal proceedings you will have to serve a legal notice on the last known address and also by email ID known to you.

4. His contention of paying the money after he receives it from the buyer cannot be accepted unless he gives in writing that within a specified period he will give the money.

Sale agreement cancelled, amount not returned

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