• Buyer Have not paid up my remaining money

Hi Lawyers,

I have entered into an agreement with a gentle man to sell my flat for 42 lakhs on 5th of April. We have entered into a Agreement of Sale on 100/- Bond paper, sayng that within 45 days remaining moount to be paid. 45th day would be this Saturday i.e 19th of May 2018. Will the agreement stand cancelled on 19th May? Can I forfeit the amounts which was given to me? Its no where mentioned in the clause, that advance needs to be returned or not returned? How do go ahead with that?
Asked 4 years ago in Property Law
Religion: Hindu

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12 Answers

Yes the agreement stands cancelled if it is breached by the buyer himself, you can serve buyer a notice intimating that he shall promptly take steps and deposits the amount before 19 otherwise the agreement stands cancelled and the seller is not bound by any agreement then.

Further though in absence of any condition you cannot forfeit complete advance amount though you can deduct expenses incurred by you and a minimal advance amount and return rest amount to avoid litigation in future.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) Wait till 19th May to complete the agreement clause. Till that don't give possession of the flat, unless n until you receive full n final amount. Other the agreement treat to cancel.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Dear Client,

If no clause of refund than no clause of forfeiture of earnest money too on default.

Well, u can forfeit it, rest will be later thing if he approach court for recovery.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. The buyer blocked your property for 45 days

2. You could have sold your flat to another buyer and realised amount till now

3. On expiry of agreement with buyer, in all fairness you can deduct 10% of money paid by buyer and forfeit that and refund the balance

4. If buyer comes up with the payment then you can proceed with final sale agreement

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

This is my response to you:

1. You can terminate the MoU that you have signed;

2. Make sure you terminate it immediately if your are 100% sure;

3. Also, pay him a little more to cancel the agreement otherwise he may refuse to return you, your 45 lacs;

4. Usually the other side don't oblige that easily and therefore take all precautions from your side;

5. If he refuses to return you, then you can send a legal notice stating that MoU can be cancelled before the end of the last date.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

It depends on the classes of this agreement with you can forward the amount paid are not normally the entire amount cannot be forfeited this agreement stands cancelled and the valuation of the clause as discussed above due to nonpayment of the promised amount you may speak to the buyer and thought out the dispute if any instead of getting into legal hassel.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Hi

1) The agreement will expire on 19 May as per terms of contract.

2) However as per Contract Act, you will need to issue notice(by registered post with acknowledgment due) to the prospective buyer asking him to fulfill his part of contract within next 10 -15 days from date of notice by

a) Pay up the entire sale consideration

and

b) come forward to execute the sale deed in his favour

and

c) Take possession of the flat

3) Please note that under contract act, you will need to ensure that you are able to demonstrate that the prospective buyer has NOT come forward to fulfill his part of contract and serving of notice is the only way to demonstrate that the prospective buyer was not willing to come forward to fulfill his part of contract.

4) If you have no previous knowledge of the prospective buyer or his antecedents, you should also file a Caveat petition in the court having pecuniary jurisdiction over the property, so as to ensure that the prospective buyer does not create legal trouble to you and your property.

5) With reference to Forfeiture of amount, even if there is no mention of the return of advance monies, courts will permit you to retain only up to 10% of advance monies received by you unless and until you can demonstrate to the court that you have suffered losses to the extent of advance monies on account of failed transaction.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

It is necessary to peruse agreement fir sale entered into by you to advice

2) if purchaser has failed to make balance payment within period stipulated in contract you can cancel the agreement

3) you can forfeit the advance money received if there is clause to that effect in contract

4) if agreement is silent refund advance money received

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Hello,

As there is no express clause about refund you have to return the amount of the other clause does not infer the opposite.

Hope this helps.

Regards

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

You can forfeit the money if it was paid as a 'bayana' which is known as earnest money. If it was paid as advance money then you have to return.

You have also option to file a suit for specific performance of the contract or alternatively you can claim damages for breach of contract..

Mean while send him a notice asking him to complete the contract otherwise the earnest money shall be forfeited..

H. S. Thukral
Advocate, New Delhi
620 Answers
204 Consultations

5.0 on 5.0

Firslty, in the property transactions matters the most important part has been played by the terms of the agreement.

Secondly, if it’s silent on the refund of money then you won’t have to return it but yes there must be a condition in the agreement as to closure of the agreement in the 45 the day.

Thirdly, if the above last close is there then there would be a presumption as to same was not to bed paid to get it refunded.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

The time stipulated in the agreement is within that date and not exactly on the same date.

You may be aware that the unregistered sale agreement is not enforceable in law.

If there is no clause to state that you can forfeit the advance amount then you cannot forfeit it on your own.

Do not take any legal step in haste, this may backfire you with more troubles.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

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