Full Judgment Text
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CASE NO.:
Appeal (civil) 5494 of 2000
PETITIONER:
Chanda (dead) Through LRs
RESPONDENT:
Rattni & Anr
DATE OF JUDGMENT: 23/03/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of a
learned Single Judge of the Punjab and Haryana High
Court dismissing the revision petition filed under Section
115 of the Code of Civil Procedure, 1908 (in short the
’Code’).
Background facts as projected by the plaintiff in a
nutshell are as follows:
Defendants-respondents entered into an agreement
dated 25.3.1989 to sell land measuring 54 Kanals 3
Marlas to the original plaintiff-Chandu and received
Rs.56,000/- as earnest money. The sale deed was to be
executed on or before 15.6.1989 on payment of the
balance sale consideration of Rs.1,39,000/-. Since the
defendants did not execute the sale deed within the time
specified in the agreement, the plaintiff-appellant
instituted a suit on 24.1.1990 for specific performance of
the agreement to sell. The suit was decreed ex parte on
1.5.1992 and it is common case of the parties that the
decree has become final between them. Para 6 of the
judgment of the trial court decreeing the suit reads as
under:-
"For the reasons discussed above, the suit
succeeds. A decree for possession of the
suit land by way of specific performance is
hereby passed in favour of the plaintiff and
against the defendants with costs.
Defendants are directed to execute the
proposed sale deed on payment of the
balance sale price of Rs.1,39,000/- and
get it registered within a period of two
months from the date of this decree failing
which the plaintiff shall be at liberty to get
the sale deed executed and registered
under Order 21 Rule 12 Code. Decree be
drawn up accordingly and file be
consigned to the record room."
The plaintiff did not deposit the balance sale price
within two months from the date of the decree, and the
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defendants did not execute the sale deed. Plaintiff then
moved an application on 10.10.1992 for the execution of
the decree pleading therein that since the judgment
debtors-respondents had failed to execute the sale deed
the same was to be executed through court and that he
(plaintiff) be allowed to deposit the balance sale price in
court. During the pendency of this application, one Sarup
Singh through his general attorney moved an application
for being impleaded as a party in the execution
proceedings on the plea that he was the owner in
possession of the suit land on the basis of a decree dated
26.7.1991 which the defendants are alleged to have
suffered in his favour. The executing court as per its
order dated 14.8.1995 allowed the applicant to be
impleaded in the execution proceedings. Sarup Singh
then filed objections to the execution application which
were dismissed as per order dated 10.9.1998 and it was
held that he was not a bona fide purchaser of the suit
land. On 8.9.1998, the judgment debtors-respondents
moved an application under Section 28 of the Specific
Relief Act, 1963 (for short the ’Act’) with a prayer that the
agreement to sell dated 25.3.1989 be rescinded since the
plaintiff-appellant had failed to deposit the balance sale
consideration within the time allowed by the court. This
application was contested by the appellant-plaintiff and on
a consideration of the contentions advanced by the
counsel for the parties the trial court as per its order
dated 15.9.1998 allowed the application and rescinded the
original contract dated 25.3.1989 holding that the plaintiff
had failed to deposit the balance sale consideration within
the time allowed by the Court. The execution application
filed by the plaintiff-appellant was consequently
dismissed. The said order was assailed in the revision
petition filed before the High Court.
Before the High Court the stand of the appellant was
that the order of the Trial Court was not sustainable as
the court while decreeing the suit for specific performance
had directed the defendants-respondents to execute the
sale deed within two months from the date of decree and
since they failed to do so the plaintiff was entitled to have
the sale deed executed through the court. According to
him, there was no specific direction given to the plaintiff to
deposit the balance share consideration within stipulated
period and, therefore, the Trial Court was not justified in
rescinding the contract on account of non-deposit of the
balance sale price by the plaintiff. It was also contended
that several imposters were set up which disentitled the
applicant from any relief. The High Court found that para
6 of the judgment of the Trial Court as quoted above,
clearly indicated that the defendants had been directed to
execute the sale deed within two months from the date of
the decree on payment of the balance sale price of
Rs.1,30,000/-. The same was, therefore, a condition
precedent for execution of the sale deed. It was implicit in
the direction that the plaintiff was required to deposit the
balance consideration within a period in the first instance
and it was only then defendants were required to execute
the sale deed. Since the plaintiff did not deposit the
balance amount, the order of court below was perfectly in
order. Revision petition was accordingly dismissed.
In support of the appeal, learned counsel for the
appellant submitted that the scope and ambit of Section
28 of the Act has been examined in various decisions.
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There was scope for extension of time and mere non
deposit did not deprive the appellant from getting any
relief. There was no unreasonable delay in making the
request for extension of time to make deposit. Strong
reliance was placed on the decision in Kumar Dhirendra
Mullick and Ors. v. Tivoli Park Apartments (P) Ltd. (2005
(9) SCC 262).
In response, learned counsel for the respondents
submitted that execution of sale deed was to be done only
after the payment or deposit in court. The conduct of the
decree-holder in not depositing is full of mala fides. He
has not deposited the amount for long 6 years i.e. between
the disposal of the execution proceedings/rescission
application. The court had interpreted the decree to mean
that the deposit was condition precedent. There was no
specific prayer for deposit or for extension of time. The
factual position is entirely different from Kumar
Dhirendra’s case (supra). In that case there was repeated
assurance of payment but in the present case there is no
such assurance.
Section 28 of the Act reads as follows:
28. Rescission in certain circumstances
of contracts for the sale or lease of
immovable property, the specific
performance of which has been decreed.--(1)
Where in any suit a decree for specific
performance of a contract for the sale or lease of
immovable property has been made and the
purchaser or lessee does not, within the period
allowed by the decree or such further period as
the court may allow, pay the purchase money
or other sum which the court has ordered him
to pay, the vendor or lessor may apply in the
same suit in which the decree is made, to have
the contract rescinded and on such application
the court may, by order, rescind the contract
either so far as regards the party in default or
altogether, as the justice of the case may
require.
(2) Where a contract is rescinded under
sub-section (1), the court--
(a) shall direct the purchaser or
the lessee, if he has obtained
possession of the property under the
contract, to restore such possession
to the vendor or lessor; and
(b) may direct payment to the
vendor or lessor of all the rents and
profits which have accrued in respect
of the property from the date on
which possession was so obtained by
the purchaser or lessee until
restoration of possession to the
vendor or lessor, and if the justice of
the case so requires, the refund of
any sum paid by the vendee or the
lessee as earnest money or deposit in
connection with the contract.
(3) If the purchaser or lessee pays the
purchase money or other sum which he is
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ordered to pay under the decree within the
period referred to in sub-section (1), the court
may, on application made in the same suit,
award the purchaser or lessee such further
relief as he may be entitled to, including in
appropriate cases all or any of the following
reliefs, namely:--
(a) the execution of a proper
conveyance or lease by the
vendor or lessor;
(b) the delivery of possession,
or partition and separate
possession, of the property on
the execution of such
conveyance or lease.
(4) No separate suit in respect of any relief
which may be claimed under this section shall
lie at the instance of a vendor, purchaser, lessor
or lessee, as the case may be.
(5) The costs of any proceedings under
this section shall be in the discretion of the
court."
The present section corresponds to Section 35 (c) of
the Specific Relief Act, 1877 (hereinafter referred to as the
’repealed Act’) under which it was open to the Vendor or
lessor in the circumstances mentioned in that Section to
bring a separate suit for rescission; but this Section goes
further and gives to the Vendor or lessor the right to seek
rescission in the same suit, when after the suit for specific
performance is decreed the plaintiff fails to pay the
purchase money within the period fixed. The present
section, therefore, seeks to provide complete relief to both
the parties in terms of a decree for specific performance in
the same suit without requiring one of the parties to
initiate separate proceedings. The object is to avoid
multiplicity of suits. Likewise under the present provision
where the purchaser or lessee has paid the money, he is
entitled in the suit for specific performance to the reliefs
as indicated in sub-section (3) like, partition, possession
etc. A suit for specific performance does not come to an
end on passing of a decree and the Court which has
passed the decree for specific performance retains the
control over the decree even after the decree has been
passed.
The decree for specific performance has been
described as a preliminary decree. The power under
Section 28 of the Act is discretionary and the Court
cannot ordinarily annul the decree once passed by it.
Although the power to annul the decree exists yet Section
28 of the Act provides for complete relief to both the
parties in terms of the decree. The Court does not cease
to have the power to extend the time even though the trial
Court had earlier directed in the decree that payment of
balance price to be made by certain date and on failure
suit to stand dismissed. The power exercisable under this
Section is discretionary.
As rightly contended by learned counsel for the
respondents the stand now taken was not pleaded before
the trial Court and the High Court. The decision in
Kumar Dhirendra’s case (supra) is clearly distinguishable
on facts. In fact, it has been noted in that case that the
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decree-holder was repeatedly assured of payment. The
situation is not the same here. The only stand taken was
that there was no direction to pay within a particular time.
This plea is clearly unsustainable and untenable and has
been rightly rejected.
Above being the position, there is no merit in this
appeal which is dismissed without any order as to costs.