Specific performance of contract act
I purchased a land through an unregistered agreement on 2/3/2005 for rs .12 lakh from my cousin brother .My cousin brother signed agreement on behalf of my uncle through a registered general power of attorney. I paid him rs one lakh on 2/3/2005 through a bank draft. Rest amount rs 11 lakh was to be paid by 31/10/2005. I created a situation and made him receive rs four lakh on the last date of agreement i.e. 31/10/2005. This was also paid through a bank draft made from my father’s account.
After last date i told him(seller/defendant) to give me more time for payment but he denied to do so. Then i send seller a legal notice stating he is not accepting the money and i was and is ready with money all the time. The seller didn’t reply to that notice.
After that i filed a suit for specific performance in civil court-T.S.6/2006.
I (Plaintiff /buyer) got ex party injuction order. The order is as follows-“ The facts contained in injuction petition is supported with an affidavit. Under the circumstances let a notice of show cause be issued against the defendant as to why he should not be restrained through temporary injuction from alienating the suit land to stranger or any other person till the disposal of suit. In the meantime, the defendant is directed to maintain the status quo of the suit land and not to transfer the suit land to anyone.”
Sir on filing the petition by defendant(seller) for vacating injuction order court said there is no stay when showcause was given by defendant but nothing is mentioned in order sheet.
Trail is going on .
In my cross- examination i have accepted that i was not ready with the money on last date.
The matter is related to state of bihar.
What will be the impact of my statement on this case?
Sir how can i get clarified whether stay is there or not?
What are the demerits of defendant in this case and merits of plaintiff?
Please guide me how should i proceed in this case?
Asked in Civil Law from Darbhanga, Bihar
Hi, it is very difficult to give proper opinion without looking into the all the documents in the suit and how you are conducted the case but one thing specific performance is a discretionary relief even though every thing is holds good it is a purely a discretionary relief that court may grant but one thing in the pleading you have to plead that you are always ready and willing to perform your obligation.
1) document which is not registered is inadmissible in evidence
2) sale deed ought to have been registered by you .
3) as against Rs 12 lakhs payable only Rs 5 lakhs has been paid by you .
4) in your cross examination you have admitted you were not in position to pay balance amount within stipulated time .
5) the contents of legal notice wherein you claim you had funds during the period is contrary to your own admission in cross
6) your best option is to settle amicably with your uncle . take refund of money paid with interest
7) if order for maintenance of staus quo has not been signed by court there is no stay as on date
1) The fact that the sale agreement being not a registered agreement to some extent will damage your cause of the case.
2) As you have filed for specific performance you would also be expected to perform your part of the obligation in the contract. The fact that you have not been ready with the payment on the last date which was admitted by you during cross examination will be treated as admission of your not doing specific performance.
3) The notice you sent starting the contrary is likely to boomerang on you.
4) Before the case reaches the final decision/verdict it would be advisable to settle the matter either accepting the refund or pay the rest of the money and register the deed.
1. It was a show xause order and not a stay order,
2. The unregistered agreement is not acceptable as an evidence in the eyes of law,
3. Moreover you yourself have admitted that you were not ready with the money to buy the property on the last day which contradicts your statement made in your legal notice,
4. Your specific performance suit will be rejected by the Court with cost and the seller may file a case against you for filing false case,
5. Get the matter settled amicably with the seller in your interest.
Ganguly ji. i am in possession of the land. The seller is trying to regain possession . how can i stop him through court?
Can i send a copy of injuction petition and order of the same for clarification?
Asked 2 years ago
Hi, if your possession in land you ought to have registered your documents of Agreement to sell and file an application before the court as the restrain the defendant from interfering the peaceful possession and enjoyment of the property and also sought for necessary police help.
1) in your original query you have not stated that you are in possession of land .
2) you have failed to make balance payment on due date .
3) you never had the funds for making payment
4)you will lose the case and have to deliver possession of land to purchaser
5) better contact a local lawyer and let him peruse your suit papers for detailed opinion
1. You have not mentioned earlier that you are in possession of the land and also did not mention how have you got possession of land without purchasing the same,
2. You have not purchased the land and is not owner of the same for which you can not take possession of the land as its owner,
3. You will lose the case filed by you and I am surprised why the seller did not lodge police complaint against you for trespassing into the said land,
4. Mere taking possession of land does not confer title of the land to the possessor in normal course.