• Cancelling a registered Leave and Licence agreement

I went for a Leave and Licence agreement for a flat in Mumbai for a period of 3 years. I paid one month's rent as advance and also a deposit of Rs 1.5 Lakh. The owner had put a clause in the agreement that I could not terminate the agreement "for whatsoever reason" for a period of 1 year. Before even occupying the flat (within 10 days of signing the agreement) I noticed heavy leakage from the walls due to heavy rains. The floor of the Hall and bedroom had a large amount of water on the floor. The owner, the society secretary and the owner's architect were informed. Videos taken of the water on the floor of the rooms were sent by whatsapp to the owner. There was a debate at the residence between owner and the secretary/chairman's son whether the problem was internal or external to the walls of the flat. The meeting was inconclusive. I decided to terminate the agreement and informed the owner accordingly on whatsapp on the 15th day after date of agreement and handed over the keys of the flat to the owner in presence of the Real Estate Agent. The owner is now refusing to return the deposit of Rs 1,5 Lakhs. How can I get back my amount? Can a clause such as "for whatsoever reason" stand in a court of law when the reason is genuine and there is a threat to the life and limb of the Licensee and family when there is so much water leakage in the flat? What should be my immediate steps so the agreement is terminated at the earliest and I don't have to pay rent for subsequent months?
Asked 1 year ago in Property Law
Religion: Hindu

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11 Answers

Issue legal notice to flat owner to refund your security deposit as you had no option but to terminate agreement on account of heavy leakages in flat 

 

2) if flat owner refuses to refund your money you can sue the licensor to recover your money with interest 

 

3) take the plea that lock in period would not be applicable in case flat was not in habitable condition 

Ajay Sethi
Advocate, Mumbai
88383 Answers
6227 Consultations

5.0 on 5.0

Landlord  has played fraud upon you by suppressing material defect in the property. The compulsion clause is included in the agreement  just for the reason to defraud you. Law is not blind to such tricks of parties to agreement. Issue him a lawyer's notice pointing out all electronic proof, claim refund with interest and damages and then file a complaint in District Consumer Forum. Under new Consumer Protection Act, 2019, a tenant is consumer. Proceeding under Consumer Protection Act, 2019 are fast. You will get refund, compensation for mental harassment, damages, cost of complaint and lawyer’s fee. The said clause is arbitrary and not enforceable.

Ravi Shinde
Advocate, Hyderabad
2818 Answers
42 Consultations

5.0 on 5.0

Hi, you can issue a legal notice through an advocate and demand from the landowner to return the advance amount as the premises is not fit to leave  as there was a leakage in the floor. Inspite of the legal notice, if the owner is failed to return the money. Then you need to file a suit for the recovery of the money.

Pradeep Bharathipura
Advocate, Bangalore
5399 Answers
310 Consultations

4.5 on 5.0

Dear Sir/Ma'am,

Given the current situation that you have stated, the immediate step should be to issue them a legal notice and notifying them about your cause. In case they don't agree, then you can approach the consumer court and file for deficiency of service.

Thank You.

Anik Miu
Advocate, Bangalore
5011 Answers
53 Consultations

4.9 on 5.0

This is an uninhabitable condition and there was no proper response from the house owner to rectify this major issue which had become a cause of concern.

Hence you can very well issue a legal notice to the owner communicating your decision to cancel the agreement owing to the uninhabitable conditions and demand refund of advance amount.

If he failed to respond or do not comply with the demands made, you may drag him either to the consumer court or to the civil court for recovery of money. 

T Kalaiselvan
Advocate, Vellore
78541 Answers
1554 Consultations

5.0 on 5.0

i would not advise for filing any litigation in court for recovering Rs. 1.5 lakh

the expenses would far outweigh the amount to be recovered

it appears that the owner did not make the true and correct disclosures to you regarding his property that it is affected by heavy seepage and leakage 

you were misled by misrepresentations 

so i suggest you file a police complaint against the owner so that he bends and returns the deposit hopefully 

 

Yusuf Rampurawala
Advocate, Mumbai
6943 Answers
79 Consultations

5.0 on 5.0

If the leave and license agreement is registered as per the Maharashtra rent control act then termination clause must be mentioned in it. Here what owner is talking about lock-in period for one month.

You can get deposit amount refunded full and only current month rent you have to pay.

If you are able to show the agreement then it will be clear picture to tell you what went exactly wrong in this agreement.

Ganesh Kadam
Advocate, Pune
12406 Answers
191 Consultations

4.9 on 5.0

Hey,

As such since the flat owing to the leakages during rainfalls renders it from being habitable comfortably and also since you were defrauded by the landlord and the agent by hiding the problem of wall leakages, you don't have to adhere to the rest of the terms. 

You can issue a legal notice on the landlord to refund your deposit within 7 days failing which you can initiate a civil suit for recovery of money in the civil court of your area. 

Sanjay Narayandas
Advocate, Hyderabad
101 Answers

5.0 on 5.0

From examining all the facts of your query I want to say that-

These cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. That condition in the agreement “for whatsoever reason” is one sided worded and is only in the interest of the Owner. Cancellation of the Leave and License Agreement is applicable, when the agreement is to be cancelled/terminated before the end/expiry of the Lease period. Any of the parties (Licensor/Licensee or Owner/Tenant) can send a notice of termination to the other party for cancellation of the Agreement. The agreement ceases after the end of the notice period or else registration of cancellation deed may be done.

In case of Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, Supreme Court held that the terms of the Apartment Buyer’s Agreement were wholly one-sided and unfair to the Respondent (Flat Purchaser) and that the Appellant (Builder) could not seek to bind the Respondent with such one-sided contractual terms. The Court also made reference to the Law Commission of India’s 199th Report on ‘Unfair (Procedural & Substantive) Terms in Contract’, wherein the Law Commission recommended that a legislation be enacted to counter such unfair terms in contracts. In the draft legislation provided in the Report, it was stated that: A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties.”

You are not liable to pay the owner for the subsequent months when there is grave and intentional negligence on the part of the owner and only he is at fault and not you. You can claim compensation for the mental and physical agony. However, in Court, owner may take a defense of Section 3 of Transfer of Property Act. According to Section 3, a person is said to have notice of a fact, which he would have known, but for his “gross negligence” or “willful abstention from making an enquiry or search” does not know. However, it is such knowledge which a person with ordinary prudence ought to have known. In other words, constructive notice of facts are those facts which a person ought to have known, but because of gross negligence or wilful abstention does not know it. Thus in Constructive notice, there is a legal presumption, that a person should have known a fact as if he actually knows it. I will try to make you understand with an example. Suppose A sells the house by a registered document to B. He later enters into a contract with C to sell him the same house. Law imposes a duty upon C to inspect the registers at the Registrar’s office, and if he does that, he would come to know about the sale in favour of B. A failure to inspect the register will be detrimental to the interests of C, as he would be imputed with constructive notice of the registered transaction. This defense can be tackled with various other provisions like caveat venditor which means ‘let the seller beware’. The principle of caveat venditor cautions that the seller is responsible for any problem that the buyer might encounter with a service or product. Detailed Discussion is required in such cases. 

You can issue a legal notice through any good Advocate in India. A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them. This notice, when sent, conveys your intention before the legal proceedings and thus, makes the party aware of your grievance. Many times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides. And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law. Although a legal notice can serve as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases.

You may contact my secretary to connect with me for clarification.

 

Gopal Verma,

Advocate on Record & Amicus Curiae,

Supreme Court of India

 

Shri Gopal Verma
Advocate, New Delhi
316 Answers
5 Consultations

4.0 on 5.0

You need to file a suit against the said landlord for return of deposit. You will get the same as it's landlord fault. If you need any further assistance then you can approach me through kaanoon or LinkedIn.
https://www.linkedin.com/in/prashant-nayak-5477b138

Prashant Nayak
Advocate, Mumbai
27587 Answers
88 Consultations

4.4 on 5.0

- As per law, it is the duty of the landowner to handover a habitable property with all the necessary facilities while giving the property on rent . 

- Since the said flat is having defect and not able to reside the same for further period , then this lock in period not applied in your case , and you have legal right to raise this issue before the landlord .

- If the landlord not giving attention towards your problems and delaying , then you can send a legal notice to him for the termination of leave and license agreement due to the prevailing circumstance , and further ask him to refund the security deposit paid by you. 

- If, no response then file a recovery suit before the court .

Mohammed Shahzad
Advocate, Delhi
10055 Answers
122 Consultations

5.0 on 5.0

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