Legal Question in Appeals and Writs in India
I purchased an immovable property in GOA in June 2005, susequently i agreed to sell the same to an intended purchaser and had taken some advance from him through cross cheques. Proper receipts signed by me acknowleging those payments were given by me to the purchaser. Each of of these receipts specifically mentions the amount of the sale consederation agreed upon betwen us. An MOU had been written on plain paper listing all the points discussed and agreed upon between me and the purchaser were signed by both of us.This hand written MOU was written by me in my own handwriting. At the time of taking the first cheque of token advance. This MOU clearly states that a proper agreement to sell would be executed between both of us in 15 days time, the MOU also stated the amount which was to be paid by the purchaser to me upon the execution of the agreement of sale.
However no formal agreement of sale took place either within the stipulated time of 15 days or subsequently because the purchaser verbally expressed inability to pay that amount to me that would have accrued to me upon the execution of the agreement.
He cited pecuniary losses and requested for more time to execute the agreement. i acquiesced to this request of his.
Now more than 1 year has elasped .During this time i sent him reminders in writing through my lawyer.However no legal notice was sent by me through my lawyer to the purchaser as i appriended that the purchaser may forcefully try to take posession of the property, which posession has been with me since the receipt of the token advance and it is still with me
A few days ago i received notification from the court asking me to show cause why temporary or permanent injuction should not be granted to the purchaser so that i may not alienate the property or create 3rd party right. The suit also asked for specific performance on my part so as to transfer the property to the purchaser by executing the sale deed. However the plaint states that we orally agreed upon a price which is about 30% lower than the price which we had actually agreed upon . The purchaser has quoted a fall in real estate prices as being the reason for his asking a lesser sum of sale consederation.
I would like to know whether i am entitled to an escallation in the price which had been agreed upon originally in the event that the suit carries on for a consederable time. If so are the precedants?How does the court fix the value of the property if the suit carries on for 10 years or more. Does the law take into cognizance factors such as inflation, loss of intrest, escalating land prices market value etc.
3 Answers from Attorneys
is the MOU executed earlier at the time of accepting earnest money bears his signatures as well along with two witnesses. you can take the plea that it is written down in MOU that a formal agreement to sell would be prepared within 15 days and the same has not been done and without a formal agreement how can the suit for specific performance lie. secondly, time is essence of contract and more than one year has passed which clearly shows that the purchaser never intended to purchase the property rather was only interested in lingering on the matter. to my mind, the suit of purchaser may be dismissed.
You may contact a lawyer for preparing your defence (written statement) to the plaint filed by the purchaser. You may be entitled to escalation in price etc. over and above the MoU price; the oral evidence of purchase may not be admissible for over riding a written MoU.
Either you succeed in the suit or the suit is decreed in purchaser's favour. There is no question of you asking for more price than what was agreed merely because court proceedings may take years to get completed.
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