A buyer has paid full consideration (incl. TDS) to an NRI seller/co-owner of a society sub-lease plot, based purely on oral agreement of sale. Now, one of the co-owners is refusing to sign and complete registration of the deed of conveyance (structure) and deed of lease transfer (for plot). He wants to refund buyer the consideration and cancel the deal. However, the 2nd co-owner wants to continue the deal if possible, but has not yet received his own share of consideration. In the above situation, is there any way to force the first co-owner to complete the sale and conveyance? In this case, the only written evidence is that both sellers have given signed consent to the housing society for providing society's NOC for lease transfer of plot. But that NOC doesn't mention buyer by name.
You have to file suit for specific performance to direct first co owner to execute registered sale deed in your favour
2) rely upon signed NOC wherein consent of society was obtained
3) lead evidence of witnesses regarding oral agreement for sale entered into with the co owners
Dear Client,
Specific performance is a legal remedy where a court orders a party to perform a specific action, such as completing a real estate transaction. However, specific performance is typically granted when monetary damages are inadequate to compensate the aggrieved party and when the terms of the contract are clear and definite. The oral agreement in this case might complicate the matter, but if there is substantial evidence supporting the existence and terms of the agreement, specific performance could be pursued. While the NOC may not mention the buyer by name, it could still be a relevant piece of evidence supporting the existence of the agreement.
You can retain co- owner's share as it is. If buyer is happy to go with other co-owners share to buy.
Make the proper agreement according to plot partition and it will be acceptable by both the parties. Buyer and co-owner.
Does the fact that there are two co-owners (and only one wanting to cancel deal) make any difference in a specific-performance lawsuit? Unfortunately, this is a single, undivided bungalow located on a lease-hold plot. The buyer will not take only one co-owner's share. In this case, the buyer has already paid full consideration to one of the co-owners, paid TDS on that amount and has also paid significant (non-refundable) society NOC transfer fees on behalf of the sellers. I happen to be the 2nd co-owner who would like to proceed with the deal.
It does not make difference
issue legal notice to first co owner to honour his commitment and execute registered sale deed
if he refuses file suit for specific performance
There is no sale agreement between the buyer and the sellers.
As you have made the full payment towards the sale consideration amount and also have deducted the tax at source as applicable it can be proved as an evidence towards the sale agreement between both.
However in the absence of cooperation from one of the sellers, you may appraoch court with a suit for specific performance of contract based on the oral sale agreement and the evidence of cash transaction would support your claim for sale.
The application for NOC before the society for sale of the property would be an added evidence
The buyer did a mistake of making payment to only one of the owners instead of making it on the name of the both the owners
The reluctant owner can claim innocence of the sale agreement itself and he may refuse to execute the sale deed along with the other co-owner stating that he was never consulted nor had consented for this sale and also there was no share in the sale consideration amount distributed to him, then your case will become weak, in that event you may be able to get back the amount you invested with nominal interest by a court order.
You can discuss with your lawyer and proceed on the advise given in person by your lawyer
Dear Client,
In a specific-performance lawsuit, the fact that there are two co-owners, with only one wanting to cancel the deal, can indeed make a difference. Specific performance is a legal remedy where a court orders a party to perform according to the terms of a contract.
In your case, where one co-owner wants to cancel the deal but the other wants to proceed, the court would likely consider several factors such as: Since the property in question is a single, undivided bungalow located on a lease-hold plot, it might be difficult for the court to physically divide the property between the co-owners. This could weigh in favor of granting specific performance. The fact that the buyer has already paid full consideration to one of the co-owners, as well as significant non-refundable fees, could strengthen the argument for specific performance. The court may consider the unfairness of allowing one party to back out after the other party has already fulfilled their obligations. The court may consider the intentions of both co-owners. If one co-owner has willingly entered into the contract and desires to proceed with the deal, this could be a factor in favor of specific performance. If specific performance is not granted, the buyer could suffer prejudice, especially considering the payments already made and the non-refundable nature of some fees. This could be a factor in favor of granting specific performance.
You can proceed
Suit of specific performance will file.
only one wanting to cancel deal) make any difference - No, you have good an case proof. Court may appoint commissioner to register sale deed.
You can proceed with deal as of now. Ask buyer to talk with co-owners share if he wants to sell or not. Otherwise new buyer can go for partition deed and for JV development agreement, these are two options available. If co-owner is not ready to sell the plot. This you have to convince these points with Buyer.