• Specific performance

Hello Sir
This is prasad from Hyderabad.
In 2012 My father in law had a agreement with adjacent person to sell his plot to attain his second daughter marriage with a meager advance of Rs.2500/- without any time bound limit in a plain paper. After several requests that person is not come forward to complete the sale process. Later in 2014 my father in law is planning for his daughter marriage and he finally approached that person no use.....he some how manage with private loans n successfully marriage to her daughter. There he decided not to by his plot to him. Later in 2016 he gifted his polt in my wife name.

then that person gone to court n file a case against my father in law n my wife for specific performance..... 

how to counter this....
Asked 4 years ago in Property Law
Religion: Hindu

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17 Answers

If you can prove that the other person didn't come forward to complete the transaction... you can plead the thought time is not the essence of contact, the other person didn't come forward, so he is not entitled to the relief

Sricharan Telaprolu
Advocate, Hyderabad
156 Answers
67 Consultations

4.9 on 5.0

See there are evidence on record in this case that the person neither took steps to perform.his part he didn't pay any consideration and neither he come forward for the registration .

Secondly there was no registered document for transfer of immvoble property as his intention were not good, he just to abuse process of law has filed this application.

This is clearly default on part of the person.

Further amount of 2500 given as advance after that no.steps were taken shows clear default.

Further claim that in his default you orally cancelled the agreement as that persons intention is clearly visible.

Court shall appreciate the facts further bring all the documents on the record.

File a order 7 rule 11 cpc application in court with all the contention the court shall allow it.

Appoint a good lawyer there are many Judgements in your favor.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Your question: How to counter this?

Answer: You can approach the court and engage a lawyer to represent your father in law;

You can also do this:

1. Try to return the advance of Rs.2,500/- along with some amount of interest;

2. Try to settle the matter out of court;

3. This case will take around 6-7 years to conclude;

4. It is better that you settle the matter and get done with it, before the court passes any adverse order against your father in law.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

You can also do the following:

1. Since you entered into a contract on plain paper to further enter into contract i.e of "Sale Agreement". Such a contract on plain paper is not valid contract. Please refer this case: In Jyoti Brothers v. Shree Durga Mining Co. [AIR 1956 Cal. 280], the Calcutta High Court laid down that a contract to enter into a contract is not considered to be a valid contract in law at all;

2. The enforceability of the MoU depends upon the intention and negotiations between the parties as reflected in the terms of the MoU. The legality and enforceability of a MoU will change depending on the contents and nature of the agreement entered into by the parties. Therefore if in the future you don't honour the MOU i.e. the contract on plain paper, you can always say it has less legal value;

3. Say it in court that the MOU is not legally binding. Mou is not a legal document, it is an understanding reached on certain terms and condition to enter into an agreement;;

4. Nonetheless the MOU is binding, and therefore I would suggest you to end the matter at the earliest;

5. Firstly the terms of the MOU have to be read;

6. You can also say that the MOU loses its value because of the period of limitation for entering into an agreement;

7. You can also say that the person did not execute the necessary documents on time, therefore you chose to not sell the property;

8. You can further file a counter suit against him stating that due to non-performance of the sale, your father in law had to suffer financial losses for the wedding and even had to take a loan. Therefore you can also claim financial loss, compensation for mental agony etc.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1)it is necessary to peruse agreement for sale executed by father in law to advice

2) plaintiff should prove that he had been ready and willing to perform the contract from the date of agreement till the date of filing of the suit,

3)where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.

4) in present case advance of rs 2500 was given in 2012 for period of 4 years purchasers did not make payment inspite of repeated reminders .

5) take the plea that suit for specific performance would not be maintainable

6) Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

The time is not essance of contract. Even if time be not the essance of contract, under section 46 of the contract act it has to be performed within a reasonable time. In your case, the sale agreement entered in the year of 2012 thereafter he has not come forward to pay the balance sale consideration. In that situation your father in law would have issued a legal notice to terminate the contact but failed to do so. Though it is a fault on your side the agreement holder should have come forward to pay the balance sale consideration or deposit the same but he failed to do so. Now the titled changed in your wife name. The order of interim injunction would not affect the main case . So, Contest the case by engaging an advocate and definitely you will succeed the case.

Selva Perumal
Advocate, Chennai
329 Answers
36 Consultations

4.9 on 5.0

1) court may not award interim reliefs as agreement was executed in 2102 for period of 5 years purchaser did not make any payment inspite of repeated reminders

2) you can take the defenses mentioned herein above in my reply

3) mention that purchaser failed to make balance payment for period of 5 years . he was not ready and willing to perform his part of contact

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

Gift Deed, once executed cannot be revoked except under few circumstances or by order of court.

Your basic defense is to prove, that F I L tired lot to get the agreement performed which refused and shown no interest by the plaintiff, hence due to non performance of plaintiff, agreement rescind.

Take recourse of sec 46 of Indian Contract Act, where no time given in contract, has to be performed in reasonable time.

Chand Rani v. Kamal Rani in (1993) 1 SCC 519

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

This could be of some help: http://sci.gov.in/supremecourt/2016/38658/38658_2016_Judgement_17-Apr-2018.pdf

The Supreme Court has reiterated that the power to order specific performance of contract is discretionary and cannot be claimed as a matter of right.

The observation was made by a Bench of Justices RK Agrawal and AM Sapre in a case relating to transfer of property.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Stay order can may be given on prima facie ground and though there was an agreement the time can be contested in due course the court to save interest provides interim stay.

This won't prejudice to you in any kind in hearing .

So dont worry stay wont harm your interest any where file a detailed reply file an application under 7/11 for rejection of plaint as 4 years is no reason ahle time under section 46 contract act though contract was not time bound

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

For the specific performance of the contract it is necessary that one party of the contract has completed his part and second party is causing delay or creating hurdles in performance of the contract. In your case no such kind of contract is existed therefore the petition filed for specific performance of contract is not maintainable. You should file a petition under section 151 of the code of civil procedure for dismissal of this civil suit. According to law this civil suit is liable to be set aside

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

1. Agreement on "plain paper" which is not duly Stamp Duty paid and Registered is not enforceable in Court.

2. You must contest the case properly and you will definetly win.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

Hi

1) Generally in a suit for specific performance time is the essence of the contract, but when a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract.

2) But it also means that an intended purchaser can postpone the sale for indefinite period of time.

3) Section 55 of contract act, deals with specific performance of contract where time is the essence and also deals with cases where time is NOT essence of the contract.

4) The courts in cases where time is not of the essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are

(i) from the express terms of the contract;

(ii) from the nature of the property; and

(iii) from the surrounding circumstances, for example, the object of making the contract.

5) For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.

6) In your case, your father in law approached the person and made an offer to sell the property for the purpose of marriage of his daughter in the year 2012 and subsequently gave the buyer 2 years time and again requested the buyer to pay him in the year 2014.

7) So the intention of sale was to use the sale proceeds for the marriage of the daughter.

8) So legally the time started to click in the year 2012 and time elapsed on the date of marriage of the daughter .

9)So if at all the buyer wanted to purchase the property, he should have purchased on or before 2014 and not later than the date.

10) In general courts normally grant ex-parte injunction which is valid for 90 days so as to force the seller to come to the court.

12) Once the seller (father in law)contests the suit, then depending on law points put forward by your lawyer, courts will generally vacate stay

13) Since the property has been gifted to your wife by your father in law, you need to implead your wife in the said suit as Defendant

14) Your defence in the case should be

a) The proposed agreement to sale was subject to finalisation of sale price and as such there was no agreement to sale.

b) The money so deposited by the seller was earnest money deposit and NOT part of sale consideration.

c) The sale ought to have concluded on or before 2014 as the intention of the sale was solely to perform the marriage of your sister in law.

d) the buyer never intended to purchase the property and despite repeated requests for two continuous years since 2012 to 2014 never even agreed to a sale consideration and hence there was no agreement to sell.

e) Even if there was an agreement to sell as claimed by the buyer, the sale should have completed on happening of

a) completion of 3 years from date of sale

OR

b) date of marriage of 2nd daughter whichever is earlier.

Hope this information is useful.. .

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

See, there is a law of estoppel, if you make any representation and other person have acted over it then you can’t deny it.

But if in case there is something in writing plus singed between both the parties then may step back also.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

An unregistered sale agreement written on a plain paper sis not a valid evidence and cannot be admissible in court of law.

However if the payment made is well within three years from the date of claim, then he may get a refund considering that white paper as a receipt for the amount received.

There is nothing to be worried about it since it is not a proper and legally valid transaction.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

Firstly the exparte interim injunction has to be vacate by filing a petition under Order XXXIX Rule 4;

Order for injunction may be discharged, varied or set aside.- Any Order for an injunction may be discharged, or varied, or set aside by the court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular arid the injunction was granted without giving notice to the opposite party, the court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

After that contest the case on merits and the documentary evidences relied upon.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

You file the reply to the said Petition and challenge the same on point of limitation. Rest you need to appoint a lawyer for the same

Prashant Nayak
Advocate, Mumbai
27245 Answers
88 Consultations

4.4 on 5.0

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