Specific performance
Mohan
(Querist) 28 February 2012
This query is : Resolved
1) I have paid Full consideration for my flat along with Sale Agreement itself. Does the SA expire at all if so when?
2) penalty clause in SA says 2% of total consideration in case of delay in execution of sale deed beyond 30/06/2009. Is this enforceable ?
Regards,
R.K Nanda
(Expert) 28 February 2012
1.SA expires after 3 years from the date of its execution.
2.No.
R.K.NANDA-DELHI HIGH COURT
Selvam Perumal
(Expert) 28 February 2012
In fact, you didn't mentioned any time period as stipulated in your Agreement.
So according to your query, I had presumed that the Vendor should execute a Sale Deed on or before 30-06-2009.
That being the case, according to Article 54 of Limitation Act, 1963 the party is entitled to enforce the Agreement within THREE Years from the date of expiry of the “time-period as stipulated” in the Sale Agreement.
So according to your Query, I presumed that the time-period in the Sale Agreement was expired on 30-06-2009. So now you can very well enforce the Sale Agreement before the Court of law by filing a suit for specific performance that too it should be filed on or before 29-06-2012. Failing which you will lost you case. Moreover before filing the suit you can issue a lawyer notice throu your Advocate.
I think the above submission will suffice for your query.
I request the learned Experts to correct my submission if any mistakes found in it.
Mohan
(Querist) 28 February 2012
So, a SA does not expire after 3 years after its execution? Pls give details. Regards-
Raj Kumar Makkad
(Expert) 28 February 2012
I fully endorse the views of selvam P.
Mohan
(Querist) 28 February 2012
Sirs
Can u tell y penalty clause for delay is not enforceable? According to which law, statute or citation ?
Regards
Selvam Perumal
(Expert) 28 February 2012
Thanks to the learned Expert Mr. Raj Kumar Makkad.
Dear Mr. Mohan,
As I stated earlier even at present you can very well enforce the penalty clause by filing a suit for damages or you can file a suit for specific performance on or before 29-06-2012 under the statute of Specific Relief Act, 1963 with the aid of Article 54 of Limitation Act, 1963.
So now you can file a suit after issuing a lawyer notice to your Vendor/opposite party throu your Advocate.
I think the above submission will suffice for your query.
I request the learned Experts to correct my submission if any mistakes found in it.
venkatesh Rao
(Expert) 29 February 2012
Mr. Selvam is absolutely correct.
Mohan
(Querist) 29 May 2012
Dear Experts:
Now my lawyer is suggesting NCDRC. Pls clarify if this case is barred by limitation or not -- since performance date is set as 30/06/2009 and limitation period is only 2 yrs in consumer court my reasoning is that limitation is over by 30/06/2011 itself. We sent Notice on 24/04/2012 and have a response from builder saying that he is still trying to get OC
Since my life savings are at stake pls clarify if going to consumer court is safe at this stage. What alternatives do I have?
Regards,
Anirudh
(Expert) 29 May 2012
Dear Mr. Mohan,
Understand certain things clearly.
1. It would be advisable for you to approach the Court for enforcement of specific performance. You have to act very fast. The time limit will get expired by 30th June 2012. You have to really act very very fast. Even one day delay in filing the suit will get hit by limitation.
2. The limitation for filing consumer case is 2 years from the date of cause of action. This in your case has already expired. In any case, at worst, it is a debatable question and has no time to debate on this issue.
3. Third, you cannot directly approach the NCDRC. You have to first go to the District Forum, then State Commission and then only to the NCDRC.
Therefore, it the money is hard earned by you, which we have no reason to doubt, then better go ahead and file a case in the court for specific performance, bringing in all the complete facts in a chronological manner in the suit, leaving no scope for any defect or escape route to the defendant builder. Your going on thinking this way or that way, what to do etc., will cost you heavily. You have already wasted sufficient time. You cannot afford to waste any more time.
Mohan
(Querist) 06 June 2012
Dear Mr Anirudh:
Thanks. But I understand that I cannot go in for a SP suit bcoz an arbitration clause exists in the agreement
My lawyer feels that if suit is filed for deficiency of service limitation does not expire by 30/06/12. He says that is a provision in sp relief law and does not apply to consumer law. He has advised me to go to NCDRC value of suit exceeds rs 1 cr.
Dear experts, pls help as I am confused. What if my case is dismissed? Pls send in as many citations as you have in this regard. I am at risk of losing everything and am worried
Thanks and regards:
PS: when cause of action starts in the present case to file at NCDRC? Pls throw some light on this as it is vexing!
Anirudh
(Expert) 06 June 2012
Dear Mr. Mohan,
I do not know, whether I have to weep or laugh.
You seem to be more worried about PENALTY little realising that if you do not file a case for specific performance within three years i.e. before end of June 2012, you will lose your case for getting the sale deed executed for ever!
Even if there is arbitration clause in the agreement, better file a case for specific performance. Let the opposite party say that there is arbitration clause and hence the suit cannot be maintained. Then go in for arbitration. By this method, at least your legal rights will subsist. OTHERWISE YOU WILL NOT GET YOUR RIGHT TO GET THE SALE DEED EXECUTED IN YOUR FAVOUR.
Better forget about the penalty. In case you go for arbitration at that time also you can seek penalty. THEREFORE DO NOT THINK IN TERMS OF APPROACHING CONSUMER FORUM. Rather approach the court by an appropriate suit - i.e. suit for specific performance.
I CANNOT IMPRESS UPON YOU MORE. THEN I HAVE NOTHING BUT TO LEAVE IT TO YOUR FATE!
Anirudh
(Expert) 06 June 2012
Dear Mr. Mohan,
I do not know, whether I have to weep or laugh.
You seem to be more worried about PENALTY little realising that if you do not file a case for specific performance within three years i.e. before end of June 2012, you will lose your case for getting the sale deed executed for ever!
Even if there is arbitration clause in the agreement, better file a case for specific performance. Let the opposite party say that there is arbitration clause and hence the suit cannot be maintained. Then go in for arbitration. By this method, at least your legal rights will subsist. OTHERWISE YOU WILL NOT GET YOUR RIGHT TO GET THE SALE DEED EXECUTED IN YOUR FAVOUR.
Better forget about the penalty. In case you go for arbitration at that time also you can seek penalty. THEREFORE DO NOT THINK IN TERMS OF APPROACHING CONSUMER FORUM. Rather approach the court by an appropriate suit - i.e. suit for specific performance.
I CANNOT IMPRESS UPON YOU MORE. THEN I HAVE NOTHING BUT TO LEAVE IT TO YOUR FATE!
