Advance amount not returned

Question

► I paid an advance amount of rs 100000 via bank transfer to the property owner and through agency. Agency made an agreement for the same and will be executed with in 45 days of time. Owner agreed to share the ekhatha with in 5 days of time. Still we are not getting the ekhatha and its been already 40 days over. We have followed up several times and they made a mistake in the ekhatha application like sqft mistake / name spelling mistakes about 3 times. We thought they were doing purposely since all the clause written in favor of owner and agency. As per Agreement if buyer is refused then need to pay liquidity damages. I am helpless and seeking for some advice on the same.

Answer 1

Based on your situation, here is my legal advice:

1. Legal Options Available:

Under the Indian Contract Act, 1872, if the seller fails to fulfill the terms of the agreement within the stipulated time (45 days), you have grounds for breach of contract. The repeated mistakes in the Khata (Ekhatha) application and delays appear to indicate non-performance.

2. Immediate Steps:

a) Send Legal Notice: Issue a legal notice through an advocate demanding:
- Immediate delivery of correct Khata documents
- Refund of Rs. 1,00,000 advance amount with interest
- Set a deadline of 7-15 days for compliance

b) Preserve Evidence: Keep all documents including:
- Bank transfer receipts
- Agreement copy
- All communication records (emails, messages, WhatsApp chats)
- Documentation of their mistakes in Khata applications

3. Regarding Liquidated Damages Clause:

The clause favoring only the owner may be challenged as unfair. Under Section 74 of the Indian Contract Act, liquidated damages must be reasonable and not punitive. If the seller breaches the agreement, you cannot be held liable for liquidated damages.

4. Legal Remedies:

a) Civil Suit: File a suit for:
- Specific performance (force them to complete transaction), OR
- Refund of advance with interest and compensation

b) Consumer Forum: If this involves deficiency in service by the agency, consider filing under Consumer Protection Act, 2019

c) Criminal Complaint: If there's fraudulent intent, Section 420 IPC (cheating) may apply

5. Bangalore-Specific Considerations:

In Bangalore (BBMP jurisdiction), Khata issues are common. The Revenue Department handles Khata transfers. The repeated errors suggest either incompetence or deliberate delay tactics.

6. Network and Documentation:

Connect with:
- Bangalore Advocates specializing in property law
- Karnataka Real Estate Regulatory Authority (K-RERA) if applicable
- Local police for criminal aspects

7. Important Point on Agreement Terms:

Since the agreement is heavily biased toward the owner and agency, a court may examine its fairness. One-sided agreements can be challenged on grounds of unconscionability.

Recommendation:

Do not wait further. The 45-day period is almost over. Immediately consult a property lawyer in Bangalore to:
1. Review your agreement thoroughly
2. Send a legal notice
3. Prepare for legal action if they don't comply

Time is critical. Act promptly to protect your rights and recover your money.

Note: This is general legal information based on the facts provided and does not constitute formal legal advice or create an attorney-client relationship. Please consult a qualified advocate in person for advice specific to your case.

Advance amount not returned

1 Answer