Upgrad LLM

How to recover the Advance paid.

This query is : Resolved 
 

(Querist)
31 March 2009

Dear Forum members,

I request you to Kindly, solve/ show me way the out


to my PROBLEM....


I have paid an advance for purchasing a land (

Around 40%, of the cost of land),and obtained a

receipt.As the land owner refused to sign the

agreement,the balance amount is not paid.Now the

land owner is not paying (Refused to Return the



Advance paid by me) the amount, i had given to him

as advance . What are the options left to me to

recover the amount.

The Receipt contains the following wording....

R E C E I P T



I,Mr. 'X',S/o Late Sri ' Y, Aged about 45 years,o

cc: Business, R/o------, have received a sum of

Rs.ABC(Rupees in words),towards part sale

consideration of the property of Agricultural dry

land in Sy.No---,Ad measuring Ac.---etc Situated at

--(village),--(Mandal), --( District), From

1.sri.---,S/o Sri--,2.----,3----.


This Receipt is made and executed on the 15Th

May,2006 out of my free will and consent in presence

of following witnesses.



W I T N E S S E S :-

Sd/-
(by Mr.'X')


1. Sd/- )

2. Sd/-

With regards....



adv. rajeev ( rajoo )Online (Expert)
31 March 2009

Dear Ramesh,
U have not clearly stated that whether the land owner has exeucted any agreement of sale. What u have is just a receipt for having of received money by u. If u had an agreement of sale u could have filed suit for specific performance of contract with an alternative prayer that if incase of defendant(land owner) failed to exeucte the sale deed of the land then court may kindly be directed to the defendant to refund the earnest money. What u have paid is earnest money. Now ur option just u filed suit for recivery of money. Limitation is only 3 years ur receipt date is 15 may 2006 so u have very limited time to file a suit, so u issue a legal notice to the land owner immediaely so u will get again 3 years to recover the money.

Ramesh (Querist)
31 March 2009

Dear Rajeev,

Thank you very much, for you advice.

The land owner has not executed the agreement of sale.When the agreement sent to him through a mediator for the signature, he just signed only the receipt accompyaning the agreement, and refused to sign the Agreement of sale.Hence the balance is not paid,by my partners.

With regards...

PALNITKAR V.V. (Expert)
31 March 2009

In fact the contents of the receipt show that there was agreement to sale. hence, in my opinion, you can file suit for specific performance with alternative prayer for refund of money and damages for breach of contract.

Y V Vishweshwar Rao Online (Expert)
01 April 2009

I agree with Shri Palnitkar Sir

Mr Ramesh you can file suti for specific performance and in the alternatively for ereturn of the amount and damages

n.k.sarin (Expert)
01 April 2009

I think there is no registered agreement as clered from the query. Simply on the basis of a receipt suit for specific performance is not maintainable.There is only way to recover the money to file a suit for money recovery with cost and special cost.But you must confirm that witness is ready to give witness in the court that the said receipt is correct. Every thing depends on the attesting witness.Limitation to file money recovery suit is three year.

Ashey (Expert)
01 April 2009

Who is in possession of the property now ?

Ashey (Expert)
01 April 2009

Whether the receipt is stamped ?

M. PIRAVI PERUMAL (Expert)
01 April 2009

I go with Mr. Palnitkar.

Ramesh (Querist)
02 April 2009

Dear Palnitkar sir,

Thank you very much for your advice.I intended to send the following notice, through an advocated;Any suggestions in this regard please.

To,
Sri.'X' S/o Late Sri.'Y' , aged about 45 years, Occ : Business, R/o H.No:16-2-147/592,AnandNagar.

N O T I C E

I have been instructed by my clients, 1) Sri. 'A',S/o 'B', aged about 57 years, Occ: Business, R/o Himagar., 2) Sri. 'C', S/o'D' ,aged about 40 years Occ: Business, R/o Alw., 3) Sri.'E' ,S/o'F' ,aged about 43 years, Occ:Business, R/o East., to give notice as fallows.

My clients have paid Rs. 50,000.00 ( Rupees Fifty thousand only), to you on 15Th may, 2006,as part of sale consideration of the property of Agricultural lands in Sy. No.387, ad measuring Ac.1-00 gts., Sy No.387, ad measuring Ac. 1-33 gts.,Sy No.389, ad measuring Ac.0-28 gts., Sy No.387, ad measuring 1-17gts., Sy No.389, ad measuring Ac. 0-28 gts., totally ad measuring Ac.5-23 gts., situated at Tuloor Village, Mahes Mandal, Rany District, for a Total consideration of Rs 71,125.00 ( Rupees Seventy one thousand and one hundred twenty five only ). You have passed a Receipt for Rs. 50,000.00 (Rupees Fifty thousand Only ), which was received by you.

My clients requested you to execute the sale deed and Registration in respect of the above mentioned lands, but you are not coming forward to execute the sale and registration. My clients are ready to pay the balance of sale consideration at time of Registration before the concerned Sub-registrar, to you. If you are not prepared for execution and Registration of the above referred property; you have to Refund the money of Rs.50,000.00 ( Rupees Fifty thousand Only ) along with 24 % per annum, interest from the Date Of Receipt Of Sale Consideration.

Therefore, I call upon you to execute the sale deed and Registration of the said property or else Refund the amount of Rs. 50,000.00 ( Rupees Fifty thousand Only ), along with 24 % per annum interest from the date of Receipt Of the same, within 15 days from the date of Receipt of this Notice. Otherwise my clients will take appropriate steps in this regard and you will held responsible for all the consequences thereof.


Sd/-(Advocate)

Will this be alright? Or do you suggest any additions/corrections?

With regards...

A V VishalOnline (Expert)
03 April 2009

Dear Ramesh,

The notice is sufficient. Wait for 15 days for the reply and in case you get no or negative response proceed to file a suit.

Kiran Kumar (Expert)
04 April 2009

the notice seems to be sufficient enough...wait for the reply if nothing comes to ur hand then file the suit for recovery.

i prefer Mr. Sarin's opinion.

Srinivas.B.S.S.T (Expert)
04 April 2009

You can file a suit for specific performance basing upon the receipt as the tenor of the receipt clearly indicates that the amount was paid towards part of sale consideration. Acceptance of the same by the Vendor clearly proves his willingness. But you have to get that document impounded before filing the suit as any agreement to sell has to be on Rs.100/- Non-judicial stamp paper, you can pay the amount before filing the suit or you can give an undertaking to pay the same before commencement of trial.

As far as the notice is concerned it is sufficient. If I am in the similar situation I would issue telegram to the vendor stating that i am ready with the balance sale consideration and will come to Registrar's office on a particular day and request the vendor to be present there as promised by him. So that later in the stage of trial we can prove our readiness and willingness to obtain a sale deed. After sending the telegram issue the lawyer's notice and mention that your client waited at the Registrar's office on a particular day but the vendor has not turned up as promised. Also prepare a sale deed by purchasing stamp papers on the date, which was mentioned in the telegram.

Ramesh (Querist)
04 April 2009

Dear Forum Members,

I THANK All The Forum Expert Members, who have Responded in time and Given me Guidance/Confidence to 'GO HEAD'.

Hiralal Das (Expert)
04 April 2009

I agree with my learned friends.



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