Bouncing & non payment of cheque for part amount of advance money mentioned in registered agreement
Mool Raj Vyas
(Querist) 19 August 2011
This query is : Resolved
Under an Agreement to Sell dated January 20, 2010, duly registered, the date for getting the sale deed executed had been stipulated to be April 2010 on/after payment of sale consideration amount and it also provided (a) additional payment of interest @15% per annum on unpaid amount calculated with effect from March 1, 2010 (b) payment of advance money vide four cheques that also included a post dated cheque dated July 2011.
The buyers have not paid balance consideration money. Even the post dated cheque dated July 2011 , forming a part of the stipulated advance has been bounced. The seller has sent a notice for dishonor of bounced cheque under NI Act and have asked for payment in lieu thereof.
Now:
(a) Whether the buyer is entitled get the SALE DEED executed on making payment of consideration money ignoring however the matter of payment of interest beyond April 2010.
(b) Whether the seller is entitled to get the Agreement to Sell, rescinded on the ground that basic condition of payment of advance money even was not fulfilled by the buyers.
(c) Whether it seller is entitled to get the Agreement to Sell, rescinded on the ground that date of execution of sale deed as stipulated therein has been passed without the buyer having paid the balance sale consideration and interest payable under that Agreement.
(d) Whether it is necessary for the seller to rely simultaneously on both the grounds [that are mentioned in (b) and (c) above] for rescinding the Agreement to Sell.
(e) Whether sending of a formal letter of rescinding of Agreement to Sell is necessarily required to be sent and if yes which of the grounds need to be cited= whether (a) (b) or (c) that both and (a) & (b) simultaneously. Whether there are any specific formalities that need to observed for this purpose. Whether such a rescinding can be abrupt or the buyers are to be given some notice for reasonable time say a month or two – for making the entire payment- even in the circumstances where buyer has not fulfilled even the initial promise in totality.
(f) Whether seller is entitled to forfeit ‘that part of advance money that was paid by the buyer’ on the ground of delay in execution of sale deed that resulted into the harassment and loss of opportunities for which buyer had decided to make the sale of property.
ajay sethi
(Expert) 19 August 2011
1)it would be necessary to go through the agreement in deatil before advising you
2)does the agreement mention that in event of failure to pay adavance amount agreement would be terminated?
3) what are terms mentioned in agreement for failure to make payment on time ?
4)for forfeiture of advance payment is their any clause in agrrement ?
Mool Raj Vyas
(Querist) 20 August 2011
There has been no clause for termination of agreement to sell as such nor does exist any term in regard to forfeiture as the agreement specified (1)that the buyers have to get the Sale Deed executed by 30th April 2010- by making the payment of balance amount of sale consideration and (2) that they will be liable to make payment of interest @15% on unpaid sales-consideration to be calculated effectivefrom March 1,2010.
girish shringi
(Expert) 23 August 2011
When the clause of interest included in the agreement,the late payment is subject to the same,hence agreement can not be cancelled.
