Plaintiff cannot claim
possession and Mense profits when he was not in position to pay balance amount
2) plaintiff has failed to make payment within period stipulated in contract
3) you have good case on merits
Permanent injunction
Sir there is no confusion and not confusing the panel either. I am just seeking guidance so that I be cautious about the developments taking place in.my case and rendering a second opinion. Generally, Trust issues are everywhere there is no guarantee if I hire the other lawyer for my case, maybe I go thru some worst experience than this. I am not blaming my lawyer for petty issues; it is just that he is manipulating the things hence not able to understand his moves, so to avoid that I want to be ready with.my own perspective as well, so he doesn't try to befool me, and also to know i am going in the right direction or not, earlier also have sought directives from u all experts and it has helped me a lot. I filed the case for permanent injunction in September 2017 and now it is due for defendant's evidence. There has been no single development hereafter only two steps accomplished till date. Firstly got status quo.. Secondly only my evidence has been through.. in these 6 years. The other party has filed a case for specific performance in the year 2019 and the summons rec'd by me in June 2022 (reason for delayed summon service is not known to me) I filed my reply in September 2022, and in between this period plaintiff had to file his replication in lieu of mine within 10 days of NDOH I.e. Dec 2022. Summons rec'd read as : Summons for settlement of issues Suit for Specific performance, possession and means profit application under U/O 39 1&2 I have already filed my reply and submitted my affidavit. In this case, what is the claim of the plaintiff? Pls guide. Furthermore, plaintiff does not have any funds to revoke this deal, coz till date plaintiff has never gone in this direction or shown any keen interest in purchasing. Since it was time bound Bayana agreement plaintiff is a defaulter. Now here the question is if the plaintiff is payment defaulter and did not pay the full sale consideration no sales deed executed, no ownership transfer was done, can he claim the possession and mesne profit.? By paying only the Bayana . Actual position of the property as of date it is not rented and lying vacant from 2017 onwards. This contract was between my late husband and plaintiff, full and final sale consideration was to be given on or before 31.08.2017, but the plaintiff defaulted. Secondly, the appointment receipt taken online by the plaintiff from registrar office was dtd. 31.08.2017 and to be appeared for final registration on 14.09.2017, here also the plaintiff deliberately delayed and made excuse of no funds etc to my husband, but unfortunately, my husband expired in first week of Sep 2017 . The reason they specified in the writ of permanent injunction filed by me that the owner was not well hence Seek final registration date as 14.09.2017., but meanwhile he expired . ( It is not true and only cooked stories by the plaintiff) Furthermore, plaintiff till date has not filed any replication in lieu of my reply in specifi
Asked 2 years ago in Property Law
Religion: Hindu
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
8 Answers
which he was supposed to do. on hearing of 22.12.2022 it was settlement final issues, that hearing date also did not fructify, (since he did not appear as he was absconding in some other case of recovery going in the same district court and his NBW was out)
Now the next hearing date is.on 25.04.2023 for specific performance case.
Furthermore, the appointment receipt of registrar office plaintiff obtained and annexed perse as evidence showing his willingness and readiness . Which is as follows:-
first party : my late husband
Second party : XYZ name (third person).. who is not a party to the Bayana .Agreement.
Bayana agreement: says
first party : my late husband
Second party : the plaintiff.
Total sale consideration on Bayana is 82 L
Stamp duty purchased on value of 48 L
by XYZ party (purchaser as on appointment receipt)
Stamp duty amount : 192K
Article 23 SALE
This kind of property transaction are legally valid ? Bayana agreement signed by {A} person and rights of property transfer to {B} person ? Who is not party in any initial transaction be it money or documents.
But upon finalisation of property documents , the role of third party enters. Is this valid and legal.??. To transfer the rights of ownership to some other person on part of a seller also ?will he be doing the right thing legally.?
Also the plaintiff has not annexed any documents pertaining to this case only an appointment receipt and a bank statement showing his transaction in.my husband's account of 18 L..
There is no other money transaction from the third party XYZ which is stated in the appointment and stamp duty purchased.
Plaintiff is pleading in his writ for a stay so that third party interest is not created, but generally he himself has created a third party I.e XYZ pls advise is it correct or not ? So can plaintiff get stay for this.? Is this act objectionable in the court of law.?
Can aAsked 2 years ago
Can a third party who is not a party to Bayana agreement and even not signed it and no bank transaction can he be the owner and property can be transferred in its name. In what basis the plaintiff is making a claim..For specific performance. One more question now in this specific performance case since plaintiff has not filed the replication in that scenario my dependency will be on my lawyer only to ask him whether the replication has been filed by the plaintiff or not. But if I need to verify, then in that scenario, how do I check in the court..What is the process. Pls guide.
Asked 2 years ago
Only parties could file suit for specific performance
2) third party has no claim
3) purchaser could not transfer property without your husband consent
4) no stay would be granted
Suit fir specific performance woukd be dismissed
2) apply for certified copy of Roznama ie court proceedings
3) you can take inspection of court records in your suit
In the plaintiff's case, he is asking for specific performance of contract seeking direction of court to the defendant to perform his/her part of contract to execute the sale deed in his/her favor and also seeking direction of court to the defendant to pay the income derived from the proeprty from the date of agreement till disposal of suit and also asking for an order of injunction agaisnt the defendant to restrain the defendant from alienating or encumbering the property in any manner.
As a matter of fact the plaintiff should express his/her willingness and readiness to pay the balance of sale consideration amount in the suit.
If the sale agreement is barred by limitation then the plaintiff cannot claim any relief in the suit, however you may please note that the limitation to file the suit is three years, hence the suit filed in the year 2019 for the agreement entered in the year 2017 is very much valid, rest other things can be challenged during trial of the case.
If the suit for specific performance of contract has been filed by the person who is not the buyer as per the agreement then the suit is not maintainable, however if the stamp duty was paid by a third party on behalf of the plaintiff this can be challenged during trial and cannot be discussed so early, you can extract the fact during cross examination and get the suit dismissed on merits as well as lack of merits.
The creation of third party interest in the proeprty by the plaintiff but asking for an order injunction by the same plaintiff restraining the defendant in other case is totally different issue. You have to deal with the different cases as per the case that has been filed in different courts.
You cannot combine both the issues together because the nature of different cases are different to each other.
It clearly indicates that the plaintiff is creating a fake deal in the name of the third party in order to file this false and vexatious suit so that he can fraudulently knock off the property in his favor, all such contradictions can be fought well on the basis of strong documentary evidences in your support.
To your next question, filing of replication to the defendant's written statement is not mandatory, the plaintiff can do away with it if he is not objecting to the contents of the written statement at this stage, he may be thinking of taking care of the issues at the trial stage, hence you cannot insist on the plaintiff to file replication.
Dear client,
Based on the information you have provided, it seems that you are in the middle of a property dispute with the plaintiff who has filed a case for specific performance and possession, and you have filed a case for permanent injunction. It appears that the plaintiff has not fulfilled their payment obligations as per the Bayana agreement, which resulted in no ownership transfer and no execution of the sale deed.
You have mentioned that the plaintiff does not have any funds to revoke this deal, and the actual position of the property is vacant and not rented since 2017. In this case, it is unclear on what basis the plaintiff is making a claim for specific performance, possession, and mesne profit, especially since they have not fulfilled their payment obligations.
Regarding the appointment receipt obtained by the plaintiff from the registrar's office, it seems that the third party named XYZ is not a party to the Bayana agreement, and it is unclear on what basis the plaintiff is claiming that this third party has any interest in the property. It is also unclear whether it is legally valid to transfer the rights of ownership to a third party who is not a party to the initial transaction.
To verify whether the plaintiff has filed the replication in the specific performance case or not, you can ask your lawyer for updates on the case. Additionally, you can also request a copy of the court proceedings or documents related to the case from the court clerk.
In any case, it is important to trust your lawyer and work closely with them to understand the legal process and your options. If you have any concerns or doubts about your lawyer's actions, you can seek a second opinion from another lawyer or legal expert.
You can yourself verify by filing RTI or if you are party yourself then by inspection of recorded and certified copies
