• Specific performance of contract act

I sold  a land through an unregistered agreement by using general power of attorney of my father on 2/3/2005 for rs .12 lakh to my cousin brother who was already in possession of the land.  He paid me rs one lakh on that date through a bank draft. Rest amount rs 11 lakh was to be paid by 31/10/2005. but he didn't pay me the amount but created a situation and made us receive rs four lakh on the last date of agreement i.e. 31/10/2005. After that when he denied to pay rest amount, i told him i will cancel the deal. Then he send me a legal notice stating i am not accepting the money and he was and is ready with money all the time. We didn’t reply to that notice. After that he filed a suit for specific performance in civil court-T.S.6/2006.Plaintiff 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 to transfer the suit land to anyone.”  Trail is going on . Plaintiff's cross - examination is over and now its my turn .In his cross- examination plaintiff has accepted that he was not ready with the money on last date. My father has been made party but he is totally unaware of this deal.
Sir on filing the the petition for hearing for injuction order court said there is no stay when showcause was given by you but nothing is mentioned in order sheet.
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? Please provide me ruling or higher court judgements related to this case.
Asked 2 years ago in Civil Law from Darbhanga, Bihar
1.inspect court file to know whether court has granted stay order or not.

2.do not be afraid of X as it is part of procedure and give correct replies only.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1) was power of attorney for sale of land duly registered? 

2) for sale of property it is necessary that sale should be made only through  registered power of attorney . 

3)  the mistake you made was although agreement for sale was made for Rs 12 lakhs and only Rs 5lakhs was received by you on last date of making payment you did not cancel the agreement . 

4)to make matters worse you did not even bother to reply to legal notice issued by buyer . 

5)you should have replied to legal notice  that you are willing to accept balance amount 

6) as on date after filing of suit you cannot sell land to third party and have to maintain status quo

7)for all practical purpose there is stay against sale of land . 

8) you must  have engaged a local lawyer and filed your written statement . 

9) you should be ready to face trial . your lawyer will prepare your father to face cross examination in court . 

10) you have gained a significant admission from plaintiff that on last date of making payment buyer was not ready with balance payment as required under agreement of sale . 

11) you should be willing to return  amount of Rs 5 lakhs paid by buyer with interest .
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
1. Was the GPA made by your father in your favour registered? A property cannot be sold through an unregistered power of attorney. 

2. You committed two mistakes-Firstly you ought to have issued a legal notice for cancellation of the agreement as your cousin brother failed to pay the agreed amount on the last date of the agreement. When there was no provision made for extending the time of the agreement the balance amount should have been paid by him on 31/10/2005 i.e the last date of the agreement, violation of which should have been met by issuing a lawyer's notice to him, which you did not do. Secondly you should have responded to his legal notice. 

3. The court has restrained you from the selling the land to a third party. You should either comply with the court order, or challenge it in the High Court if you are aggrieved by it. 

4. The merits and demerits of you and the defendant's cannot be ascertained by us. Only your lawyer who has perused all the case related documents is in a position to disclose the same.

5. You may benefit from the plaintiff's statement that he was not ready with money on the last date of performing the agreement. 

6. Has your father filed his reply? What would be the effect on your case of him not presenting himself for cross-examination cannot be ascertained without reading the plaint and the written statement. Your father should appear for cross-examination as your lawyer will prepare him for the same in advance. 

7. No rulings of the High Court/Supreme Court are required. Rulings do not help in the court except on a very technical issue. A ruling can only interpret law, it cannot create facts and evidence which are different in every case. Contest your case on merits.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
Dear Querist
as per your information, there is an order passed by court for Maintain Status Quo which is also a Stay. now both the parties are bound with this order, when you have sell the property then you have to accept his notice and demand remaining amount and execute the documents in his favour.
it will be better to approach for mediation and settle the matter amicably with him.
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
4.9 on 5.0
1. There has been no sale as yet since no sale deed has been registered,

2. Sale Agreement executed through unregistered POA is invalid,

3. You should have cancelled he agreement as soon as he failed to pay you the agreed amount,

4. You also should have replied to the notice,

5. However, convince your father to face the cross examination,

6. There is a stay on your selling the property,

7. What has been mentioed in the order sheet is only to be considered not any verbal statement,

8. Your lawyer should have appealed for vacating the stay,

9. Ask him to appeal for vacating the saty on next date of haring and get the order recorded in the order sheet,

10. You have a very good chance to win.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Hi, in a suit for specific performance it is discretionary relief even though every thing is in favour of the plaintiff and it is not absolute relief to grant to specific relief by the court so you can contest the matter on merits in worst scenario you have to refund the amount received by you and it is difficult for him to prove the case that he is ready and willing to pay the amount.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Your father will be cross examined he can no way avoid it you can prove that he was not ready to pay the amount and now has filed a false case buy the amount from them and settle the issue
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
firstly you should have cancelled the sale agreement when u have not received the whole amount. Secondly you should have replied to the legal notice he sent you at that time. Now the order of status qua has been passed which practically means a stay and now you cannot sell the property to any third person till the order prevails or the trail is pending. You have a strong case if the plaintiff has accepted that he was not ready with the money and it is a strong point of ur case. If ur father is a party in the case he should and have to appear for the cross examination and should give only correct replies as prepared by ur lawyer. You should also file a stay vacation application in the court altogether you have a strong case to fight.
Swithin Subhashish Lawrence
Advocate, Allahabad
47 Answers
3 Consultations
4.5 on 5.0
Firstly, you inspect the file and see whether an order of status quo is passed.
Secondly  A property sold through an  power of attorney  is invaild.
Thirdly you committed two mistake: You should have cancelled the sale by  a written  notice , return the consideration received . i.e Rs. 5lakhs and lastly you should have replied to the legal notice. 
Now, since the matter is in court , so if you should participate in the case file your written statment  by engaging  an appropriate advocate.  In the meanwhile, if the court has passed a stay order, then you can file an appeal thereby vacating the stay order.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0

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