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ANY »Posted 12 Apr 2011             Click here for Free Legal Advice           Disclaimer

Legal questions & answers

Specific performance suit, what should be the defense


Specific performance suit, what should be the defense   I am appearing for defendant. The suit is filed for specific performance of sale agreement dated 14-1-2011. The sale agreement is time bounded. Rs. 50,000/- paid [out of total sale consideration amount of Rs. 6,00,000/-] at the time of entering in to agreement of sale. The entire amount shall be paid within 2 months. The plaintiff is not ready with money. The agreement is not contained the recitals that \"the sale deed will be executed in the name of any other person chosen by the plaintiff\". The plaintiff is friend of the defendant. Being friend of the defendant the sale consideration accepted for meager amount. In fact the house plot will be value @ Rs. 8,00,000/- and above. The defendant has issued a legal notice as to the sale agreement is cancelled. For that the plaintiff has filed a suit, stating that he is ready with money [by showing the drafted original of third party with the recitals as if the defendant has sold the plot, in fact there is no privity of contract in between the third party and the defendant]. The things stood so the plaintiff has filed a suit seeking relief of specific performance of contract, with an interlocutory application with the relief \"not to alienate\" petition. How can the defendant escape from the liability and what should be the defense of the defendant. [The friend cheated the defendant that the property will be kept / purchased in his name only, but he sold out for excessive profit]. With regards.


   Very important aspect of the agreement is the time for payment and the deft.has already cancelled the sale agreement on that basis.Time was essence of contract and that there must be clause that if the amount is not paid within time,agreement stood cancelled and amount of deposit forfeited.Since your agreement was not with the third party you are not supposed to accept that money.Since he has sold the plot for higher price,you can say that if specific performance is granted would cause you financial loss. Grant of specific performance is discretionary relief,court would look at the damage tobe caused to your client and bonafides of the purchaser.
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