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Ritesh Mehra (student)     11 May 2012

Bayana recovery

we want to shift so we decided to sell our house to bulider(1) at an agreed price and we taked some amount of bayana from him &  on the same time we purchased one house in other location paid the same amount of bayana to new house builder(2).

but later on(after 5months) old house bulider(1) said to us that agreed price was too high i am not able to pay you,  then he put another builder(3) in to the matter to find out a solution. we want to solve the matter calmly so we aggreed to sell the house at a lesser price.

due to this whole story we are unable to pay a remaining balance of new house to  new builder(2) in time. we got late by 3 months.

now new house builder(2) said to us that agreement is cancelled because u came late an bayana date had gone. he refuses to do future transaction of same new house and not even pay back our bayana.

we even offer him to take interest from us for late payment or take some amount extra but he not ready to listen us.

so my question is as per law as a bonafide person we have any probability to get our bayana back or half amount of it or we get our new house back after paying remaining amount. all transactions are made on agreement. 

reply please!!!


 5 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (     11 May 2012

Dear Mr.Mehra,

I opine :-

Whether the second builder correctly rescinded/cancelled the agreement to sell with you would depend on the terms of the contract entered. if the time was of the essence of the contract - he can rescind - otherwise he cannot - in any case he can't appropriate the entire bayana - just a reasonable amount of the same - if he fails to return - then after serving a legal notice - file a suit for recovery. 

Ajit Singh Cheema (practising Advocate)     11 May 2012

As stated by you,all transactions are made on agreement.You will have to act upon the terms of the agreement only.Please go through the details of the agreement and you will get answers to your queries.


the agreement entered upon by you with builder no 2 is of essence. whatever the terms and conditions are mentioned in the agreement are binding on both of you. so act accordingly. if it says that the bayana would be foregone after such and such time, then i am afraid u can hardly do anything

Devesh A. Bhatia (Advocate)     20 June 2012

I highly doubt whether you will be able to get back your bayana from the legal means. Normally things in this situation work in the same manner as the builder 1 ( whom you sold your property) handled it. You have to put a third party in the mediation and that gives you a chance to get back some of the money. Otherwise builder 2 has full right to appropriate all the money as this is a usual clause in the agreement. 


If the agreement entered between you and the builder to whom you paid the amount towards bayana for purchase of house is within limitation and if you more interested in having the house, you can file a suit for specific performance of contract abd permanent injunction, parallely claiming a relief in the suit for refund of the amount what you paid as bayana.

As regards the house which you sold to a builder for a particular amount and which at later point of time he said is on higher side, and for which you agreed to sell at lower price, if no agreement or addendum is executed agreeing to the consideration, you can issue notice to the builder asking him to pay the balance consideration which was agreed to be paid by him initially.

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