• Cancellation of Sale agreement for breach of trust

Hi 

I went into sale of agreement for a 1122sq ft plot with G+2 structure. Its a 9 year old property in a villa society and resale from direct builder. 
Last week it came to my attention that plot dimension(plot lining) from all sides differs in actual measurement as compared to what has been mentioned in sale deed copy shared from builder team. ie. overall it appears that it has small patch of land which as per previous sale deed doesnt belong to the seller and not part of approved site plan.

As per sale agreement, i am bound to complete registry of this property by 5th june. And builder is not ready to rectify this error in hia previous sale deed rather asking me to enjoy the extra space which lies within the plot perimeter.

My query is if this can be considered as breach of trust to nullify sale agreement with full refund to the advance token amount paid by me? In what manner i should proceed to have amicable exit from this deal?
Asked 9 months ago in Property Law
Religion: Hindu

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12 Answers

Inform builder you are willing to make balance payment by 5 th June provided that deed of rectification is executed for earlier sale deed to rectify mistake in dimensions of the plot

 

if builder refuses you have perfect reasons of backing out of the deal 

Ajay Sethi
Advocate, Mumbai
94232 Answers
7432 Consultations

5.0 on 5.0

Agreement between builder and uourself is required to be examined. Nevertheless,  if there is any violation or that the property is not in terms of specifications and representation made to you then get issued a notice to builder terminating the agreement pointing the defect in property and also misrepresentation of facts and property and demand refund of paid money. If builder default then report the matter to police of cheating etc and also file consumer complaint claiming damages etc. If project is registered with RERA then you can report the matter to RERA authority also. 

 

Siddharth Srivastava
Advocate, Delhi
1227 Answers

5.0 on 5.0

This cannot be a resale if you are buying it from builder.

If you are buying it from a previous purchaser, then you can issue a legal notice to the seller stating that the errors now observed to be rectified immediately and the execution of sale can be made subsequent to the rectification of the error  by  a registered rectification deed.

You can instruct the seller to rectify the same within a time to be stipulated by you, if not to refund your booking amount with interest.

If the seller is not ready to rectify the error, and not returning the advance amount, you  may file a suit for recovery of your money

T Kalaiselvan
Advocate, Vellore
84432 Answers
2133 Consultations

5.0 on 5.0

Yes you can cancel it but you need to return the amount after deduction of your losses

Prashant Nayak
Advocate, Mumbai
31572 Answers
168 Consultations

4.1 on 5.0

Hi, First you have to issue legal notice for rectification of mismatch of the  measurement and actual measurement    and inspite of issuance of legal Notice the builder is not come forward to rectify the same you can cancel the agreement to sale and ask for return of money. All these facts are included in the legal notice.

Pradeep Bharathipura
Advocate, Bangalore
5604 Answers
334 Consultations

4.5 on 5.0

Send him legal notice, highlighting deficiencies and discrepancy in the area of property containing in sale deed shared with you and demand rectification or refund with interest.

Yogendra Singh Rajawat
Advocate, Jaipur
22556 Answers
31 Consultations

4.4 on 5.0

Ask association on what basis permission has been granted to your neighbours to construct balcony y in front 

 

If no permission have been taken what action has been taken by association against said neighbours

Ajay Sethi
Advocate, Mumbai
94232 Answers
7432 Consultations

5.0 on 5.0

Yes, society is correct. You cannot violate sanctioned site plan. The wrongs of others cannot justify your wrongs. Society has every power to take decision in regard to matters pertaining to society. However, society cannot stop you from carrying inside renovation work. You can file suit for injunction against society.  

Siddharth Srivastava
Advocate, Delhi
1227 Answers

5.0 on 5.0

You can construct it if it doesn’t go against the structural design your place. Society need to approach court for seeking a order for stopping you from doing it 

Prashant Nayak
Advocate, Mumbai
31572 Answers
168 Consultations

4.1 on 5.0

you cannot do any renovation work or changes in the villa without getting the consent of association , if this rule is already mention in the specific associations rule.

Moreover if the sale deed restricts you to make any such renovation or structural changes, then you cannot go ahead with your proposed construction.

The Association can legally stop you from making such renovations.

However, making modifications in your own villa is not illegal.

You can try to obtain approval from the local civic body if you feel that the proposed change or renovation is essential.

T Kalaiselvan
Advocate, Vellore
84432 Answers
2133 Consultations

5.0 on 5.0

Be adamant and ignore president. 

Yogendra Singh Rajawat
Advocate, Jaipur
22556 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

Format of Suit for Cancellation of Documents With Permanent Injunction

Suit for cancellation of documents is a remedy provided in specific relief act 1877. This civil remedy is invoked when the aggrieved party apprehends that his property is transferred without following due course of law.

The specific relief act also states when and to what extent a document can be canceled.

When cancellation may be ordered.

Section 39 of the specific relief act 1877 says that; Any person against whom a written instrument is void or voidable, who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and canceled.

If the instrument has been registered under the Indian Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

What instruments may be partially canceled?

Section 40 of the specific relief act 1877 explains that Where an instrument is an evidence of different
rights or different obligations, the Court may, in a proper case, cancel it in part and allow it to stand
for the residue.

Section 41 states that while deciding suit for cancellation of documents or an instrument, the Court may also require the party to whom such relief is granted to make any compensation to the other which justice may require.

Limitation In Suit for Cancellation of Documents

Article 91 & 114 of the limitation act 1908 deals with the limitation period in cancellation suits. The period of limitation for a suit to cancel or set aside an instrument or decree or for the rescission of a contract is three years.

The time of limitation starts when the facts entitling the plaintiff to have the instrument or decree canceled or set aside or the contract rescinded first become known to him.

Court Fee in Suits for Cancellation of Documents

The court fee in the cancellation of documents suits is paid according to the value of the property. Section 7 (iv-A) of the court fee act 1870 says that;

For a declaratory decree regarding immovable property on the basis of the alleged sale, etc.– In suits for a declaratory decree with or without consequential relief as to right in or title to the immovable property based on alleged sale, gift, exchange or mortgage– according to the value of the property],

Format of Suit for Cancellation of Documents

This sample draft of suit for cancellation of documents can help you in writing the best civil

IN THE COURT OF SENIOR CIVIL JUDGE, RAWALPINDI.

In the matter of:

MAF son of NKH resident of _____, Tehsil and District Rawalpindi.

…Plaintiff

Versus

  1. TJL son of FUR resident of __________, Tehsil and District Mianwali, presently residing at _______, Tehsil and District Rawalpindi.
  2. SK son of MZ r/o _______, Islamabad.
  3. AAK son of GK resident of ________, Islamabad.
  4. JI son of FM resident of _______, Tehsil and District Bhakker.
  5. AM son of MA r/o _________, Tehsil and District Rawalpindi.
  6. CA the son of SK r/o _______, Tehsil and District Rawalpindi.
  7. Province of Punjab through District Collector DO(R), Rawalpindi.
  8. Sub Registrar (Rural), Rawalpindi.
  9. Tehsildar, Tehsil and District Rawalpindi.
  10. Halqa Patwari, Mauza Mohri Khatran, Tehsil and District Rawalpindi.

…Defendants

SUIT FOR CANCELLATION OF DOCUMENTS WITH PERMANENT AND MANDATORY INJUNCTION.

Respectfully Sheweth,

  1. That the plaintiff is an owner in possession of property bearing Khasra Nos. ___ owner of ___ Kanals __ Marlas and ____ owner of ___ Kanals ___ Marlas total measuring ____ Kanals ___ Marlas situated at Mauza Mohri Khatran, Tehsil and District Rawalpindi.
  2. That out of the above said total land measuring ___ Kanals ___ Marlas, the plaintiff sold a share 20/4115 measuring ___ Kanal to one Mr. TJ son of KUR vide Mutation No. ___ dated ____ against the consideration amount of Rs. 35,000/- and the said mutation was sanctioned in favor of the said TJ.
  3. That is the month of May 2008 when the plaintiff went to the office of the Halqa Patwari, it came into the knowledge of the plaintiff that the defendant No. 1 with the connivance of the revenue authorities got entered frivolous and forged entries in the revenue record by way of amending the share, transferred by the plaintiff 20/4115 equal to ___ Kanal to 220/4115 share equal to ___ Kanals of land illegally, fraudulently and dishonestly and subsequently got sanctioned the mutation Nos.;
  4. ____ dated _____ in favor of defendant No. 2 & defendant No. 3,
  5. ____ dated _____ in favor of defendant No. 4 vide General Power of Attorney No. ____ dated ____ registered in the office of Sub Registrar Rural, Rawalpindi.
  6. _____ in favor of defendant No. 5 vide registered sale deed No. ____ dated ______.
  7. _____ in favor of defendant No. 6.

illegally, unlawfully, fraudulently, by way of forgery and fraud with the connivance of the revenue authorities.

  1. That after coming into the knowledge of the plaintiff, the plaintiff immediately contacted the defendants/revenue authorities whereby it debunks that the piece of land of the plaintiff has been fraudulently and illegally transferred in the name of defendant Nos. 2 to 6 but they have done nothing and linger on the matter on one pretext or the other.
  2. That the above-stated entries, mutation, sale deed, power of attorney, and all type of transactions, alienation, and entries of the revenue record are unjust, illegal, unauthorized, void, null, void ab-initio and are the result of misrepresentation, forgery, fraud, malice, ulterior motives, collusion with the revenue authorities concern and are in effect upon the rights of the plaintiff and are liable to be set-aside, canceled, corrected, according to the actual ownership of the plaintiff in the land mentioned above and share transferred in favor of the defendant No. 1 i.e. 20/4115 equal to _ Kanal only.
  3. That a glaring fraud is spelled out from a cursory glance of the relevant documents, hence the mutations, etc are liable to be canceled, set-aside, and corrected in accordance with the law.
  4. That the defendant No. 7 has been made party as the defendants No. 8 to 10 are subordinate to him and he is responsible for their acts and deeds etc and is authorized to correct the entries in accordance with the law.
  5. That the said act on the part of the revenue authorities as well as defendants No. 1 to 6 is unjust, illegal, unauthorized, void, null, void ab-initio and is the result of misrepresentation, forgery, fraud, malice, ulterior motives, and ineffective upon the rights of the plaintiff and to deprive the plaintiff of his valuable land.
  6. That the plaintiff asked the revenue authorities as well as defendant No. 1 to 6 to admit the rights and title of the plaintiff and withdrew from their illegal claims but the defendants have refused to accede the genuine request of the plaintiff, hence this suit.
  7. That now it also came into the knowledge of the plaintiff that the defendants No. 1 to 6 with the connivance of the revenue authorities intends to further alienate the land, take forcible possession, raises construction and change the nature of the land.
  8. That the cause of action firstly accrued when the defendants committed fraud, forgery, misrepresentation and change the entries in the revenue record and secondly when in the month of May 2008, when the plaintiff got the knowledge of the said fraud, forgery, misrepresentation, change in entries in the revenue record which continues time by time and finally a week ago when the defendants finally refused to accede the genuine request of the plaintiff, the same is still continuing.
  9. That the property is situated within the territorial limits of this Honorable Court, cause of action also accrued here, the revenue authorities fall under the jurisdiction of this Honorable Court, hence this Honorable Court has the jurisdiction to entertain and adjudicate upon the matter.
  10. That the value of the suit for cancellation of documents for the purpose of court fee and jurisdiction is fixed as Rs. 20,000/- which is exempted from the levy of the court fee.
  11. That the plaintiff is ready to affix the appropriate Court fee, however, Rs. 20/- is affixed upon the plaint.

PRAYER

In view of the above, it is most humbly prayed that:

  1. A decree for declaration in a suit for cancellation of documents to the effect that the plaintiff is an owner in possession of land measuring ___ Kanals ___ Marlas bearing Khasra Nos. ___ owner of ___ Kanals ___ Marlas and ___ owner of ___ Kanals ___ Marlas total measuring ___ Kanals ____ Marlas situated at Mauza Mohri Khatran, Tehsil and District Rawalpindi and the plaintiff has transferred only a share of 20/4115 out of the said land equal to __ Kanal only to one TJ son of KUR vide Mutation No. __ dated ___ and the defendants No. 1 to 6 have no right, title, interest and concern whatsoever with the suit land and all the subsequent entries, mutation, sale deeds, power of attorney against the rights of the plaintiff are illegal, unjust, un-authorize, null, void- void-ab-initio, without any lawful justification and are result of forgery, fraud, dishonestly, misrepresentation collusion with the revenue department and are ineffective upon the rights of the plaintiff and are nullity in the eye of law and are liable to be set-aside, cancelled and corrected according to the rights of the plaintiff and are only to deprive the plaintiff from his valuable rights and property.
  2. A decree for a mandatory injunction in this suit for cancellation of documents directing the defendants No. 7 to 10 revenue authorities to correct the revenue record in the light of the submissions made in the main suit.
  3. A decree for permanent injunction restraining the defendant’s Nos. 1 to 6 to claim any right title, interest, and concern whatsoever in the suit land and further transfer the land on the basis of above said mutations/ attorney/ sale deed/ entries, etc in favor of any person.
  4. Further prayed that the defendants No. 1 to 6 may also please be restrained from interfering into the peaceful possessionof the plaintiff dispossessing him, raising any sort of construction and changing the nature of the suit property in any manner whatsoever may kindly be passed in favor of the plaintiff and against the defendants.
  5. Any other relief, which this Honorable Court deems fit and proper may also be granted to the plaintiffs.

Plaintiff

Through

Counsel(s)

Advocates High Court,

Rawalpindi

Verification

Verified on Oath at Rawalpindi on this day of June 2008, that the contents of the para No. 1 to 9 are true and correct to the best of our knowledge and belief, and the rest of the paras are believed to be true and correct.

Plaintiff

IN THE COURT OF SENIOR CIVIL JUDGE, RAWALPINDI

MAF                 …Plaintiff

Versus

TJ etc                    …Defendants

SUIT FOR CANCELLATION OF DOCUMENTS WITH PERMANENT AND MANDATORY INJUNCTION.

APPLICATION UNDER ORDER 39 RULES 1 & 2 OF CPC READ WITH SECTION 151 C.P.C

Respectfully Sheweth

  1. That the applicant/plaintiff has filed the above-captioned suit before this Honorable Court, the grounds taken in the main suit may kindly be read as an integral part of this application.
  2. That the applicant/ plaintiff has a good prima facie case and likely to succeed in it.
  3. That the balance of convenience also lies in favor of the applicant/plaintiff.
  4. That the applicant/plaintiff shall suffer irreparable loss if the stay order has not been granted.

PRAYER

It is, therefore, respectfully prayed that ad-interim injunction is passed in a suit for cancellation of documents to restrain the defendant’s Nos. 1 to 6 to claim any right title, interest, and concern whatsoever in the suit land and further transfer the land on the basis of above said mutations/ attorney/ sale deed/ entries, etc in favor of any person. Further prayed that the defendants No. 1 to 6 may also please be restrained from interfering into the peaceful possession of the plaintiff dispossessing him, raising any sort of construction and changing the nature of the suit property in any manner whatsoever may kindly be passed in favor of the plaintiff and against the defendants till the final disposal of the main suit.

Petitioner

Through

Counsel(s)

Advocates High Court,

Rawalpindi

IN THE COURT OF SENIOR CIVIL JUDGE, RAWALPINDI

MAF                  …Plaintiff

Versus

TJ etc.                    …Defendants

SUIT FOR CANCELLATION OF DOCUMENTS WITH PERMANENT AND MANDATORY INJUNCTION.

APPLICATION UNDER ORDER 39 RULES 1 & 2 OF CPC READ WITH SECTION 151 C.P.C

Affidavit

That I, MAF son of NK resident of ______, Tehsil and District Rawalpindi.

DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER:-

That the contents of the above application are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

Deponent

Verified on oath at Rawalpindi on this day of June 2008 that the deposition is true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

Deponent

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
481 Consultations

4.8 on 5.0

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