Cunning buyer,misuse of agreement .
Mr.LOGANATHAN.R
(Querist) 14 August 2012
This query is : Resolved
Dear sirs,
I am the absolute owner of my ancestral property.I had signed a unregd sale agreement on 31.07.2008 with Rs two lakhs by bank cheque as advance (only 6% of agreement value) with mentoining that he should register it within 9 months (exact last date not mentioned) by paying balance amount.If fails the agreement will void.Not mentioned about the forfeiture of advance amount.Infact in the agreement my sons aged 25 and 23 names also typed as 2nd & 3rd sellers.But I had only signed in the agreement and received the above 2 lakhs cheque.
He purposely not turned up.I first send a notice on 25.07.2011 through a lawyer stating that the sale agreement cancelled as per the clause contained as per sale agreement and the advance amount also forfeited.He received it on 26.07.2011.But on his lawyer notice (dt 01.08.2011) received on 04.08.2011,he simply asked to come for registration on 04.08.2011.I obstrained.Reason,1)I had already cancelled the agreement thro'lawyer notice. 2)He was not came for within 9 months of agreement.
He filled suit against my share for specific performance On 30.04.2012.
KINDLY GUIDE ME(if possible with section no.)
1) Which date, his 3 years legal claim expires? 2)Whether my stand on forefeiture is correct?
3) Buyer not approached orally or writing within the 9 months of agreement, but he filed the suit,stating that I had delayed inspite of his oral request!how I face it.
(note:I had modified later, to clarify the doubts of experts and clearly present the facts.)
ajay sethi
(Expert) 15 August 2012
you cant forfeit advance payment in absence of any clause in agreement . you have to return the advance amount .
if he has failed to make balance payment within the period specified under the contract ie By May 2009 you could terminate the agreeement . in the present case you have issued legal notice after nearly 3 years .
the 3 year period would expire in JUly 2011 .
prabhakar singh
(Expert) 15 August 2012
How can you be absolute owner of "our"property?
Why did not you issue notice forth after expiry of 9 months?
If 6 months mentioned in agreement was intended to be as an essence of contract what caused you issue notice on 25 July 2011,a blunder in my opinion.????
The buyer played smart only due to your notice.
Any way even if 9 month's time was not the essence of Contract in the agreement dated 25 July 2008,RIGHT TO ENFORCE THE SAME BY ANY OF THE PARTIES EXPIRED BY LAW OF LIMITATION JUST ON 24 July 2011(on passing of 3 years)and even if he out smarts for those 9 months(though to me legally not possible) the suit was to be filed as of must by any theory latest by 24 April 2012;WHILE YOU STATE THAT THE SUIT HAS BEEN FILED BY HIM ON "30.04.2012".
Hence in my opinion, the suit is clearly barred by law of limitation and the RIGHT WAY TO DEAL SUCH A SUIT BY A DEFENDANT IS TO MOVE AN APPLICATION FOR REJECTION OF THE PLAINT UNDER ORDER 7 RULE 11 (d) of C.P.C.as the suit is barred by law of limitation which is 3 years from the date of agreement or 3 years from those 9 months so fixed from performance,so the suit is barred by 6 days for which no delay can be condoned under section 5 of limitation Act as that section applies only to application and appeals and NOT TO ANY SUIT.
Mr.LOGANATHAN.R
(Querist) 17 August 2012
I, very much Thanks for Mr Ajay Sehi and Mr Prabhakar singh for your immediate reply.
My clarifications to Mr Singh sir,After my father's death, land patta changed to my name.I have 2 sons (age above 18).
I am not having agreement copy and his address at the time of expiry of agreement (9 months). Agreement dated only 31.07.2008.
I remained that the agreement expired itself as mentioned in it.
On knowing the buyer is going to issue a notice,I overtaken him.
Guest
(Expert) 17 August 2012
In your question, you made amention of two different things, "signed a unregd sale deed on 31.07.2008" and "signed in the agreement and received the above 2 lakhs cheque."
Would you please like to clarify whether you signed only agreement or have also signed the sale deed (to be registered) in addition to agreement?
Mr.LOGANATHAN.R
(Querist) 17 August 2012
Dhingra sir,
I signed only in sale agreement, which is unregistered and received the advance amount in cheque.
Thank you.
Mr.LOGANATHAN.R
(Querist) 12 February 2013
Dear sirs,
I am the absolute owner of my ancestral property of agricultural Land with patta on my name.I had signed a unregd sale agreement on 31.07.2008 with Rs two lakhs by bank cheque as advance (only 6% of agreement value) with mentoining that he should register it within 9 months (exact last date not mentioned) by paying balance amount.If fails the agreement will void.Not mentioned about the forfeiture of advance amount.
Infact in the agreement my sons aged 25 and 23 names also typed as 2nd & 3rd sellers.But I had only signed in the agreement and received the above 2 lakhs cheque.Buyer orally accept that my sons would sufficient to sign during registration,since my elder son was at USA on job & younger son at college.After I got general power of attorney from my elder son and registered it with District registar on 06.10.2008.I furnished copy of it to the buyer on person (failed to get acknowledgement) and asked to register the land at the earliest.
He purposely not turned up within the agreement period,may be he has not get expected appreciation.I first send a notice on 25.07.2011 through a lawyer stating that the sale agreement cancelled as per the clause contained in the sale agreement and the advance amount also forfeited.He received it on 26.07.2011.But on his lawyer notice (dt 01.08.2011) received on 04.08.2011,he simply asked to come for registration on 04.08.2011.I obstrained.Reason,1)I had already cancelled the agreement thro'lawyer notice. 2)He was not came for within 9 months of agreement.
He filled suit against my share for specific performance On 30.04.2012.
KINDLY GUIDE ME(if possible with section no.)
1) Which date, his 3 years legal claim expires?Is it geneune?.He has not made any payment other than advance.
2)Whether my stand on forefeiture is correct?
3) Buyer not approached orally or writing within the 9 months of agreement, but he filed the suit,stating that I had delayed inspite of his oral request!how I face it.
