KassyD (Student) 17 May 2011

Conditional Readiness and Willingness - is it ok?

Hello, am new here and need your help on the following matter:

This is a case for Specific Performance. The Defendant is an NRI living in Hong Kong and the Plaintiff is in India.

Plaintiff had sent a legal notice to the Defendant expressing his readiness and willingness to pay the balance amount and complete the transaction. However, he put a condition that he would only pay subject to deducting tax at source (since the Defendant is an NRI). The Defendant did not agree to this condition as according to him this was not as per terms of the agreement.

Can the Plaintiff's demand invalidate his claim for readiness and willingness as it was not undonditional?

My answer was that he should have paid the entire balance consideration and completed the transaction, paid the disputed tax (was only Rs 1 lakh) on the Defendant's behalf and then probably filed a case for recovery of the excess amount. In this way he could have atleast got the property (worth over a crore) and completed the transaction. His loss would have been far lower?

What is your opinion?

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5 Replies

adv. rajeev ( rajoo ) (practicing advocate) 17 May 2011

The condition in a notice does not invalidate his ready and willingness to purchase the property. Wha are the conditins in the agreement of sale.

KassyD (Student) 17 May 2011

Sir,

No other conditions in the agreement that was required from defendant's side. Plaintiff is supposed to make balance payment and sign sale deed and then takes possession. But he imposes a new condition that he will now deduct tax at source. So can he put a new condition even if it is legal, but not as per the terms of the agreement. My argument is he cannot do this as he is bound by the terms of agreement.

KassyD (Student) 18 May 2011

Can someone please provide their valuable comments?

Jamai Of Law (propra) 18 May 2011

If proprty has appreciated during the course of transaction being concluded finally or in installments ... and now if seller is avoiding to complete it ... Buyer's attempt to prove buyer's willingness to complete the transaction ........ such an pre-condition would rather prove rather adversely.

Jamai Of Law (propra) 18 May 2011

Generally outstanding/arrears etc in property taxes, Society maint, NOC charges etc etc are assessed initially ........... and buyer generally fixes a price assuming that he has to pay those things!!!

If some of things are missed out to clarify during initial dealing ... then its advisable to write it off and silently pay up on your own instead trying to recover it from reseller like this...

This causes otherwise to hold the whole transaction in limbo.

Same thing applies to retrofiting expenses post acquiring the property .................. If re-seller does refurbishing etc... that is to dress up the price only... but re-seller doesn't have to behave like a builder handing over a brand new new property.

This is India and not USA!! (In USA Real Estate dealers do all the intermediary work and ensure smoothness in transaction ... In India agents work just like a dalal and after getting their commission they simmply disappear!!)

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