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NewDefendant (None)     27 December 2009

Urgent help - specific performance of contract


I need some urgent advice - a suit has been filed against me for specific performance of contract under an agreement for sale for my property. In the agreement for sale (AFS):

The buyer lives in the same building/society where my flat is situated.

The AFS is subject to the bye-laws of the society where my flat is situated and the terms and conditions of the AFS

I was supposed to obtain NOC from the society, which buyer needed for his housing loan.

The buyer was to pay balance amount within 60 days of NOC grant.

I immediately applied for NOC, confirmed by buyer in his affidavit to court.

As per bye-law buyer was supposed to obtain permission of sub registrar to buy another flat in the same society.

Buyer refused to obtain permission as required by society and kept creating obstacles for me to get NOC (created problems in the society, society committee had to even seek police protection from buyer).

as there was a lot of delay, I told the buyer to cancel agreement as I would lose lot of money since house price went up and I cannot afford another flat if I sold at old price. he refused and filed suit.

Only after filing suit, he applied for required permission and submitted to society. he also deposited balance amount in court.

Do I have a good case? I can prove that was he was not ready and willing all along as the NOC was not granted due to him?

He also never proved to me that he had ad money to make balance payment (in all his correspondence he needs NOC for loan purpose)

Also in the Agreement, there is no provision for any compensation/relief to the plaintiff/buyer if there is any delay from the seller's side (although I was not the cause of the delay)?

Please, I need some advice. My lawyer has not explained these points to me properly and I need to know whether the court can rule in buyer's favour?



 12 Replies

kranthi kiran (Works In Judicial Department)     27 December 2009

if you  prove, to the satisifaction of the Court, that, the buyer failed to comply with the obligations mentioned therein the Sale Agreement or voilated the terms  of the sale agrement you can definetly win over the case

1 Like

NewDefendant (None)     27 December 2009

 Thanks very much Kiran.


I have documentary evidence (letters from him to the society arguing that he does not require permission and telling the society that they  should change their bye-laws instead).  

He got the required permission after more than 16 months of signing agreement and after he filed the suit.

Is this enough evidence to show he caused the delays for getting NOC and was not ready to comply with the bye laws of the society which the Agreement for sale was subject too.

I do not want to sell him the house now as i will lose a lot of money. I am worried the court might force me to do it.




Your case apparantly shows that the buyer is not co-operating with you to complete sale transaction. I hope you have a good case, provided your lawyer conducts the trial leaving no stone unturned. The buyer has filed the suit against you and hence he should prove to the court that he was always ready to perform his side as per the agreement and you did not be so. You have a limited role of defending yourself but you must see that the case does not go against you. But how come there is a clause in your society's bye-laws stipulating obtaining permission from the sub-registrar by the buyer to go in for a second flat in the complex? I am not clear on that.

1 Like

NewDefendant (None)     27 December 2009

 Thank you Mr Rao. The clause is there in the bye-laws of the society and the reason for not getting NOC was buyer not willing to comply with this clause. The society is very old (may be 50 years) and they have the same bye-laws.

I have to make sure that I am not forced by court  to sign the sale deed now when the price has gone up. How can the buyer prove he was ready to make  payment? He has only made statements to this effect but never showed me or told me that he had the money to pay without taking loan.




niranjan (civil practice)     27 December 2009

You have not mentioned whether you got the NOC from the society to sell the plot? If you got that and gave notice to the buyer to get the document within sixty days,will help you a lot..Ipu have also the ground of time was the essence of contract and the buyer has never got it extended because the society was not granting the NOC.Since he did not perform his part and was negligent in doing so,you take that point,will also help you a lot. over and above his ready and willingness. and sufficiency of funds.You could have cancelled the sale agreement stating all these grounds.

NewDefendant (None)     27 December 2009

 Thank you for your response Mr Niranjan. I could not get the NOC because the buyer refused to comply with the bye-laws of the society. The society required him to provide permission from assistant registrar and only then they would issue the NOC. He kept fighting with the society and created numerous problems so that the society would not issue the noc. The problem is no where in the agreement does it state the time frame for getting noc. The time for payment of balance amount  (60 days after noc is granted) is the essence of the contract. 

He threatened me with police case and said he would get me arrested if I tried to cancel contract. I cancelled the contract but since he was threatening me I again requested society to issue noc and begged him to get permission adn help me get noc. 


niranjan (civil practice)     28 December 2009

Actually,it was the buyer to get NOC first from the society and he did not perform his duty and so you were not responsible for not performing your part of your contract. Pl.refer AIR 1990 Delhi,page 42 and para 23.You can carve your line of defense from this judgment.

1 Like

NewDefendant (None)     28 December 2009

 Thank you! However in the contract I am supposed to obtain NOC from society but he prevented me from getting NOC.  Will check your case reference (where can I see it?)

niranjan (civil practice)     28 December 2009

You must know that to grant specific performance of contract is discretionary relief even if the contract is lawful. You have number of grounds viz. where it can be compensated in terms of money,spdcific per.can be refused;it the inconvenience is going to be caused by implimenting the contract is more,then also the same can be refused. 

1 Like

NewDefendant (None)     28 December 2009

 Thank you  - that is a relief. I think I can prove that the buyer was never ready and willing.

Also can you tell me the difference between Agreement for Sale and Sale Deed. 

My agreement for sale does not mention anything about executing a sale deed. It merely states that only after balance payment which will be made 60 days after NOC, I will hand over original share certificate, sign transfer papers and hand over vacant possession.  

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     30 December 2009

You prove before the civil court that you were always willing and still ready to perform your part of contract whereas the buyer always was unwilling and not ready for the same. all documentary evidence is to be led apart from oral evidence.

NewDefendant (None)     31 December 2009

 Thank you! 

Also if he was always ready and willing then why did he not send balance payment  and get transfer deeds done? I never refused - so should he not also prove to the court that I refused to take balance payment and refused to sign transfer deed?


Now I am not interested in completing transaction because of the initial delay. My family and I will be left homeless if they force me to sell him at 2003 price.

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