Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1363-1364 OF 2023
(Arising from SLP(C) Nos. 9504-9505/2022)
P. Shyamala …Appellant
Versus
Gundlur Masthan …Respondent
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 17.01.2022 passed by the High Court for the
State of Telangana at Hyderabad in CRP No. 2374/2019 & 2304/2019,
by which the High Court has dismissed the said revision petitions
preferred by the appellant herein, the original revisionist has preferred
the present appeals.
2. The facts leading to the present appeals in a nutshell are as under:
That the respondent herein – original plaintiff instituted a Civil Suit
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2023.02.24
16:49:51 IST
Reason:
No. 291/2013 against the mother of the appellant – original defendant for
specific performance of the agreement to sell dated 09.05.2012. In the
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agreement to sell, the late mother of the appellant agreed to sell the suit
property for a total sale consideration of Rs. 23,00,000/-, against which
an advance of Rs. 8,00,000/- was paid by the plaintiff.
2.1 That the trial Court passed an ex-parte judgment and decree on
12.10.2013 and passed a decree for specific performance of the
agreement to sell dated 9.5.2012. While decreeing the suit, the trial
Court directed the respondent – original plaintiff to deposit the balance
sale consideration of Rs. 15,00,000/- within two weeks before the trial
Court. The trial Court also observed that in case the defendant fails to
execute the sale deed on receiving the balance of sale consideration,
the plaintiff is at liberty to get it done through process of law. Therefore,
under the decree dated 12.10.2013, the plaintiff was required to deposit
Rs. 15,00,000/- within a period of two weeks from the judgment and
decree dated 12.10.2013. Thus, as per the judgment and decree dated
12.10.2013, the respondent – original plaintiff was required to
pay/deposit the balance sale consideration of Rs. 15,00,000/- on or
before 21.10.2013. However, the respondent herein – original plaintiff
failed to pay/deposit the balance sale consideration as ordered by the
trial Court.
2.2 After a period of 853 days from the date of judgment and decree
dated 12.10.2013 passed by the trial Court, the original plaintiff –
respondent herein filed an application before the trial Court under
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Section 148 of the Code of Civil Procedure (for short, ‘CPC’) and Section
28 of the Specific Relief Act being I.A. No. 732/2016 in O.S. No.
291/2013 and prayed for extension of time to deposit the balance sale
consideration which the plaintiff was required to deposit on or before
21.10.2013, as per the judgment and decree dated 12.10.2013. At this
stage, it is required to be noted that after the ex-parte judgment and
decree, the mother of the appellant – original defendant died on
13.01.2015 and the appellant herein being legal heir of the original
defendant was brought on record. Simultaneously, the appellant, being
the legal representative of the original defendant, filed an application
being I.A. No. 914/2017 in O.S. No. 291/2013 under Section 28 of the
Specific Relief Act, 1963 to rescind the Agreement to Sell dated
9.5.2012.
2.3 Before the trial Court, it was the case on behalf of the plaintiff in
support of I.A. No. 732/2016 that he became sick with Jaundice and
treated in the hospital from 1.11.2013 to 5.1.2014 and after discharge
also confined to house with High Blood Pressure, Diabetes and other
diseases. It was also the case on behalf of the plaintiff that ultimately on
9.6.2016 when he contacted the advocate he came to know about the
judgment and decree dated 12.10.2013 and the directions given
thereunder. Therefore, it was prayed to condone the delay of 853 days
and extend the time to deposit the balance sale consideration.
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2.4 The said application was opposed by the appellant. It was the
case on behalf of the appellant in support of the application under
Section 28 of the Specific Relief Act that the plaintiff has wilfully not
deposited the balance sale consideration and therefore the agreement to
sell dated 9.5.2012 is required to be rescinded under section 28 of the
Specific Relief Act. It was also the case on behalf of the appellant that
the alleged illness is false and created. By common order dated
29.06.2019, the trial Court allowed I.A. No. 732/2016 directing the
plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- with
interest @ 18% per annum from the date of decree, i.e., 12.10.2013 till
the date of deposit, within one month. Consequently, the trial Court
dismissed I.A. No. 914/2017 filed by the appellant under Section 28 of
the Specific Relief Act.
2.5 Feeling aggrieved and dissatisfied with the common order dated
29.06.2019 passed by the trial Court in I.A. No. 732/2016 & I.A. No.
914/2017, the appellant herein filed the present revision applications
before the High Court. By the impugned common judgment and order,
the High Court has dismissed the said revision applications. Hence, the
present appeals.
3. Shri Mithun Shashank, learned counsel appearing on behalf of the
appellant has vehemently submitted that in the facts and circumstances
of the case, the trial Court committed a serious error in allowing the
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application submitted by the original plaintiff and extending the time by
directing the plaintiff to deposit the balance sale consideration and
dismissing the application filed by the appellant under Section 28 of the
Specific Relief Act.
3.1 It is vehemently submitted that as such there was a huge delay of
853 days in submitting the application for extension of time to deposit
the amount under section 148 CPC and Section 28 of the Specific Relief
Act. It is submitted that no sufficient cause was shown and/or there was
no explanation whatsoever given by the decree holder as to why he did
not pay the balance sale consideration as per the judgment and decree
dated 12.10.2013 or did not make an application under Section 28 of the
Specific Relief Act, seeking extension of time to make the payment of
balance sale consideration.
3.2 It is vehemently submitted that even as per the original plaintiff he
became sick with Jaundice and was treated in the hospital from
1.11.2013 to 5.1.2014 only. It is submitted that it is not believable at all
that thereafter he was confined to house with High Blood Pressure,
Diabetes and other diseases for approximately two years. It is submitted
that therefore in absence of any reasonable explanation, the trial Court
ought not to have condoned the huge delay of 853 days occurred in
filing the application for extension of time to deposit the balance sale
consideration as per the judgment and decree passed by the trial Court.
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It is submitted that therefore the High Court has committed a very
serious error in dismissing the revision applications.
3.3 It is further submitted by the learned counsel appearing on behalf
of the appellant that as such the original plaintiff obtained the ex-parte
judgment and decree dated 12.10.2013. It is submitted that the original
defendant – mother of the appellant died on 13.01.2015. Till her death,
no efforts were made by the plaintiff to deposit the balance sale
consideration of Rs. 15,00,000/-. It is submitted that neither the balance
sale consideration as directed by the trial Court was paid, nor any steps
were taken to get the sale deed executed by the original defendant. It is
submitted that the aforesaid conduct on the part of the original plaintiff
disentitles him for any relief of extension of time for deposit of the
balance sale consideration and therefore the trial Court ought to have
rescinded the agreement to sell dated 9.5.2012, in exercise of powers
under Section 28 of the Specific Relief Act. Heavy reliance is placed on
the decision of this Court in the case of V.S. Palanichamy Chettiar
Firm v. C. Alagappan and Another, reported in (1999) 4 SCC 702
(paragraphs 14, 16 & 17).
3.4 It is further submitted that even the equity is also in favour of the
appellant. It is submitted that after the ex-parte judgment and decree, in
the year 2013 the prices of the agricultural land in question have gone
up to Rs. 3 crores. It is submitted that despite the judgment and decree,
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non-deposit of the balance sale consideration of Rs. 15,00,000/- at the
relevant time, i.e., within a period of two weeks from the judgment and
decree dated 12.10.2013, disentitle the plaintiff seeking any extension
and it can be inferred that the plaintiff was not ready and willing to
perform his part of the contract and even as directed by the trial Court
and therefore this is a fit case to rescind the agreement to sell dated
9.5.2012, in exercise of powers under Section 28 of the Specific Relief
Act.
3.5 Making above submissions and relying upon the aforesaid
decision, it is prayed to allow the present appeals.
4. The present appeals are opposed by Shri Harshit Tolia, learned
counsel appearing on behalf of the original plaintiff.
4.1 It is vehemently submitted by Shri Tolia, learned counsel appearing
on behalf of the original plaintiff that the order passed by the trial Court in
an application under Section 148 CPC and Section 28 of the Specific
Relief Act is discretionary in nature and when the trial Court had
exercised its discretion in favour of the plaintiff and thereafter when the
revision applications have been dismissed by the High Court, the same
may not be interfered with by this Court.
4.2 It is further submitted that the delay of 853 days was sufficiently
explained by the plaintiff. It is submitted that the plaintiff became sick
with Jaundice and was treated in the hospital from 1.11.2013 to
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5.1.2014. That thereafter and after his discharge he was also confined
to house with High Blood Pressure, Diabetes and other diseases which
were supported by the medical record. It is submitted that the trial Court
had accepted the explanation submitted on behalf of the plaintiff
explaining the delay occurred in making the application under Section
148 CPC and Section 28 of the Specific Relief Act and thereafter when
the trial Court extended the time and directed the plaintiff to deposit/pay
the balance sale consideration of Rs. 15,00,000/- with interest @ 18%
per annum and when the same is confirmed by the High Court, the same
may not be interfered with by this Court.
4.3 It is submitted that to strike the balance, the trial Court in fact had
directed the plaintiff to pay/deposit the balance sale consideration of Rs.
15,00,000/- with interest @ 18% per annum from the date of judgment
and decree dated 12.10.2013 till the actual payment.
4.4 Making above submissions and relying upon the recent decision of
this Court in the case of Kishor Ghanshyamsa Paralikar (D) through
Lrs. V. Balaji Mandir Sansthan Mangrul (Nath) & Another (Civil
Appeal No. 3794/2022, decided on 9.5.2022) , it is prayed to dismiss
the present appeals.
5. We have heard learned counsel for the respective parties at
length.
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At the outset, it is required to be noted that by an ex-parte
judgment and decree dated 12.10.2013, the trial Court passed a decree
for specific performance of the agreement to sell dated 9.5.2012. In the
agreement to sell dated 9.5.2012, the total sale consideration was Rs.
23,00,000/-, against which Rs. 8,00,000/- was paid as advance. The
balance sale consideration of Rs. 15,00,000/- was directed to be
deposited/paid by the plaintiff under the ex-parte judgment and decree
dated 12.10.2013, within two weeks from the said date, which expired on
21.10.2013. Nothing is on record that any steps were taken by the
plaintiff either to deposit/pay the balance sale consideration of Rs.
15,00,000/- or even calling upon the defendant to execute the sale deed
as per the judgment and decree passed by the trial Court dated
12.10.2013 till the present application under Section 148 CPC and
Section 28 of the Specific Relief Act was filed on 7.6.2017/19.06.2017
with a huge delay of 853 days, seeking extension of time to deposit the
balance sale consideration. The reasons for delay are set out
hereinabove. The explanation which was given by the plaintiff, narrated
hereinabove, can hardly be said to be a sufficient explanation as to why
the plaintiff did not pay the balance sale consideration as per the
judgment and decree or even did not make an application within a
reasonable time under Section 148 CPC and Section 28 of the Specific
Relief Act seeking extension of time for making payment. If the plaintiff
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was ready with the money payable towards the balance sale
consideration, he could have got the sale deed executed through power
of attorney after effecting deposit/payment. In absence of any sufficient
explanation, such a huge delay of 853 days ought not to have been
condoned by the trial Court.
6. It is observed and held by this Court in the case of V.S.
Palanichamy Chettiar Firm (supra) that provisions to grant specific
performance of an agreement are quite stringent. Equitable
considerations come into play. The Court has to see all the attendant
circumstances including if the vendee has conducted himself in a
reasonable manner under the contract of sale. It is further observed that
therefore, the Court cannot as a matter of course, allow extension of
time for making payment of balance amount of consideration in terms of
a decree. It is further observed that in absence of any explanation
whatsoever even by the decree holders as to why they did not pay the
balance amount of consideration as per the decree or did not make an
application under section 28 of the Specific Relief Act seeking extension
of time for making payment, equity demands that discretion be not
exercised in favour of the decree holders and no extension of time be
granted to them to comply with the decree.
7. Now so far as the reliance placed upon the decision of this Court in
the case of Kishor Ghanshyamsa Paralikar (D) through Lrs. (supra) ,
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relied upon on behalf of the respondent is concerned, it is required to be
noted that in the said case before this Court, the total sale consideration
was Rs. 8,78,500/-. The vendee paid a sum of Rs. 7,31,000/-
immediately. He was required to pay the remaining amount of Rs.
1,47,500/- within a period of one month from the date of the compromise
decree. There was a delay of five days only in paying the remaining
amount of Rs. 1,47,500/-. Therefore, in exercise of powers under
Section 28 of the Specific Relief Act, this Court allowed the extension of
time in favour of the decree holder to deposit the balance sale
consideration. In the said decision, in paragraph 11, it is observed as
under:
“11.This section gives to the vendor or the lessor the right to rescission of
the contract for the sale or lease of the immovable property in the same
suit, when after a suit for specific performance is decreed, if the vendor or
the lessor fails to pay the purchase money within the period fixed. This
section seeks to provide complete relief to both the parties in terms of a
decree of specific performance in the said suit without having resort to a
separate proceeding. Therefore, a suit for specific performance does not
come to an end on the passing of a decree and the court which has
passed the decree for specific performance retains control over the decree
even after the decree has been passed. Section 28 not only permits the
judgment-debtors to seek rescission of the contract but also permits
extension of time by the court to pay the amount. The power under this
section is discretionary and the court has to pass an order as the justice of
the case may require. It is also settled that time for payment of sale
consideration may be extended even in a consent decree. This Court in
Smt. Periyakkal and ors. Vs. Smt. Dakshyani1 , speaking through
Chinnappa Reddy, J. observed that even in a compromise decree, the
court may enlarge the time in order to prevent manifest injustice, and to
give relief to the aggrieved party against a forfeiture clause. The Court
observed the following:
“4.……………. The parties, however, entered into a compromise and
invited the court to make an order in terms of the compromise, which
the court did. The time for deposit stipulated by the parties became
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the time allowed by the court and this gave the court the jurisdiction
to extend time in appropriate cases. Of course, time would not be
extended ordinarily, nor for the mere asking. It would be granted in
rare cases to prevent manifest injustice. True the court would not
rewrite a contract between the parties but the court would relieve
against a forfeiture clause; And, where the contract of the parties has
merged in the order of the court, the court's freedom to act to further
the ends of justice would surely not stand curtailed.”
Therefore, as observed by this Court, the power under Section 28
of the Specific Relief Act is discretionary and the Court has to pass an
order as the justice may require.
8. Applying the law laid down by this Court in the aforesaid decision
to the facts of the case on hand and considering Section 28 of the
Specific Relief Act, we are of the opinion that the trial Court erred in
exercising the discretion in favour of the plaintiff and erred in extending
the time in favour of the plaintiff to deposit the balance sale
consideration of Rs. 15,00,000/- by condoning the huge delay of 853
days, which as observed hereinabove has not been explained
sufficiently at all. As observed hereinabove, after the plaintiff was
directed to deposit the balance sale consideration of Rs. 15,00,000/-
within a period of two weeks from the date of ex-parte judgment and
decree dated 12.10.2013, which the plaintiff failed to deposit/pay, even
no application for extension of time under Section 148 CPC and Section
28 of the Specific Relief Act was made thereafter within a reasonable
time and was made after a period of 853 days. Nothing is on record that
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in between any notice was given to the defendant to execute the sale
deed as per the judgment and decree on deposit of the balance sale
consideration. The application filed by the plaintiff under Section 148
CPC and Section 28 of the Specific Relief Act seeking extension of time
to deposit the balance sale consideration was hopelessly delayed. As
observed hereinabove, Section 28 of the Specific Relief Act seeks to
provide complete relief to both the parties in terms of a decree of specific
performance. Therefore, the trial Court failed to exercise the discretion
judiciously in favour of the defendant and erred in exercising the
discretionary power in favour of the plaintiff, that too with a delay of 853
days. The High Court has erred in confirming the same and dismissing
the revision applications. Under the circumstances, the order passed by
the trial Court allowing the application of the plaintiff being I.A. No.
732/2016 seeking extension of time to deposit the balance sale
consideration deserves to be dismissed and I.A. No. 914/2017 filed by
the defendant – appellant under Section 28 of the Specific Relief Act to
rescind the agreement to sell dated 9.5.2012 deserves to be allowed.
However, at the same time, to strike the balance between the
parties the amount of Rs. 8,00,000/- paid by the plaintiff as an advance
is to be returned to the plaintiff with 12% interest per annum from
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9.5.2012 till the actual payment, within a period of six weeks from today,
failing which it shall carry interest @ 18% per annum.
9. In view of the above and for the reasons stated above, both these
appeals succeed. The impugned common judgment and order dated
17.01.2022 passed by the High Court dismissing the revision
applications and the common order passed by the trial Court dated
29.06.2019 allowing I.A. No. 732/2016 filed by the plaintiff seeking
extension of time with a huge delay of 853 days and dismissing I.A. No.
914/2017 filed by the defendant to rescind the agreement to sell dated
09.05.2012 are hereby quashed and set aside. I.A. No. 732/2016 filed
by the plaintiff under Section 148 CPC and Section 28 of the Specific
Relief Act seeking extension of time with a huge delay of 853 days to
deposit the balance sale consideration stands dismissed. I.A. No.
914/2017 filed by the appellant – defendant under Section 28 of the
Specific Relief Act to rescind the agreement to sell dated 09.05.2012 on
non-payment of/deposit of the balance sale consideration by the plaintiff,
which the plaintiff was required to deposit/pay within a period of two
weeks from the date of ex-parte judgment and decree dated 12.10.2013,
stands allowed. Agreement to sell dated 09.05.2012 stands rescinded in
exercise of powers under Section 28 of the Specific Relief Act. However,
the appellant herein is directed to refund the amount of Rs. 8,00,000/- to
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the plaintiff with 12% interest from 09.05.2012 till the actual payment,
within a period of six weeks from today, failing which it shall carry
interest @ 18% per annum.
10. The instant appeals are allowed accordingly in the aforesaid terms.
No costs.
…………………………………….J.
[M.R. SHAH]
NEW DELHI; …………………………………….J.
FEBRUARY 24, 2023. [C.T. RAVIKUMAR]
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