Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 3794 OF 2022
(Arising out of S.L.P. (Civil) No.16942 of 2018
KISHOR GHANSHYAMSA
PARALIKAR (DEAD) …APPELLANT(S)
VERSUS
BALAJI MANDIR SANSTHAN MANGRUL
(NATH) AND ANR. …RESPONDENT(S)
O R D E R
S. ABDUL NAZEER, J.
Leave granted.
2. Delay in filing the application for substitution is condoned and
abatement is set aside. The application for substitution is allowed.
3. This appeal is directed against the order dated 30.01.2018 in
W.P.NO.1637 of 2016 whereby the High Court of Judicature at
Bombay, Nagpur Bench, has allowed the Writ Petition filed by the first
respondentTrust and set aside the orders passed by the Trial Court
granting extension of time for depositing the balance of the sale
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2022.06.16
10:08:10 IST
Reason:
consideration.
2
4. On 12.03.2007, the appellant herein filed a suit for specific
performance of an agreement dated 20.09.2002 executed by the first
respondent in his favour for the sale of agricultural land bearing
Survey No.3, admeasuring 10 H (Hactor), 50 R (Are) situated at Village
Murtizapur, Mangrulpir Taluk, District Washim, State of Maharashtra.
5. During the pendency of the suit, a compromise was arrived at
between the parties and accordingly the Trial Court vide Order dated
06.12.2010 decreed the suit in terms of the compromise. As per the
compromise decree, the respondent agreed to sell the suit land for a
total consideration of Rs.8,78,500/. The appellant paid a sum of Rs.
Rs.7,31,000/ immediately to the first respondent. 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.
6. The appellant moved an application on 11.01.2011 seeking
permission of the court to deposit the balance of Rs.1,47,500/ as per
the decree. The said application was allowed by the Trial Court, and
accordingly, the said amount was deposited by the appellant in the
court on the same day. On 12.01.2011, the first respondent executed
the sale deed in respect of the suit property in favour of the appellant.
On 15.01.2011, the appellant filed an application for extension of time
3
for payment of balance of the sale consideration which was allowed by
the Trial Court vide Order dated 02.12.2015.
7. After a passage of about three years from the date of execution of
the sale deed, the first respondent filed an application for cancellation
of the aforesaid sale deed and for a direction to recover possession of
the suit property from the appellant. The Trial Court vide Order dated
13.01.2016 dismissed the said application.
8. Being aggrieved, the first respondent filed a writ petition before
the High Court. As noticed above, the High Court has allowed the writ
petition and cancelled the sale deed dated 12.01.2011.
9. We have heard learned counsel for the parties and perused the
materials placed on record.
10. Section 28 of the Specific Relief Act, 1963 provides for rescission
of the contract for sale or lease of immovable property, the specific
performance of which has been decreed. Subsection (1) of Section 28
is relevant for this case, which is as under:
“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
4
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.”
(Emphasis supplied)
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 judgmentdebtors 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
5
1
, speaking through
Smt. Periyakkal and ors. Vs. Smt. Dakshyani
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 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.”
12. In the instant case, as per compromise decree dated 06.12.2010
the appellant was required to pay the balance sale consideration of
Rs.1,47,500/ on or before 06.01.2011. There was a delay of about
five days in payment of balance of the amount. Therefore, he filed an
application on 11.01.2011 seeking permission of the court to deposit
the balance of the amount which was allowed by the trial court on the
same day. Accordingly, he deposited the said amount on 11.01.2011
and the sale deed was executed in favour of the appellant on
1 (1983) 2 SCC 127
6
12.01.2011. Subsequently, the application filed by the appellant
seeking extension of time was also allowed by the Trial Court. After a
passage of nearly 3 years, the application filed by the first respondent
seeking rescission of the contract was dismissed by the Trial Court.
This order of the Trial Court has been set aside by the High Court.
13. We are of the view that, the Trial Court in its discretion has
granted extension of time for depositing the balance of sale
consideration assigning cogent reasons. In our view, the High Court
was not justified in setting aside the said order and cancelling the sale
deed.
14. Resultantly, the appeal succeeds and is accordingly allowed. The
judgment and order of the High Court dated 30.01.2018 in
W.P.NO.1637 of 2016 is set aside and the order of the Trial Court
dated 11.01.2011 permitting the appellant to deposit the balance
amount of Rs.1,47,500/ is restored. No costs.
…………………………………J.
(S. ABDUL NAZEER)
…………………………………J.
(VIKRAM NATH)
New Delhi;
May 9, 2022.
7
ITEM NO.15 COURT NO.7 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 16942/2018
(Arising out of impugned final judgment and order dated 30-01-2018
in WP No. 1637/2016 passed by the High Court of Judicature at
Bombay at Nagpur)
KISHOR GHANSHYAMSA PARALIKAR (DEAD) Petitioner(s)
VERSUS
BALAJI MANDIR SANSTHAN MANGRUL (NATH) & ANR. Respondent(s)
IA No. 6772/2022 - APPLICATION FOR SUBSTITUTION
IA No. 16721/2022 - CONDONATION OF DELAY IN FILING SUBSTITUTION
APPLN.
IA No. 74734/2018 - EXEMPTION FROM FILING O.T.
IA No. 16722/2022 - SETTING ASIDE AN ABATEMENT)
Date : 09-05-2022 This matter was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE S. ABDUL NAZEER
HON'BLE MR. JUSTICE VIKRAM NATH
For Petitioner(s) Mr. Kishor Ram Lambat, adv.
Ms. Kashmira Lambat, Adv.
Mr. Sachin Pahwa, Adv.
Ms. Jyoti thakur, Adv.
Ms. Reeta Puniya, Adv.
M/S. Lambat And Associates, AOR
For Respondent(s) Mr. AaditYA a. Pande, Adv.
Mr. Chander Shekhar Ashri, AOR
Mr. Rahul Chitnis, Adv.
Mr. Ravindra Chingale, Adv.
Ms. Anisha Mathur, Adv.
Mr. Sachin Patil, AOR
Mr. Geo Joseph, Adv.
Ms. Shwetal Shepal, Adv.
8
UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
Abatement is set aside.
Substitution is allowed.
Leave granted.
The appeal is allowed in terms of the signed Reportable
order.
Pending applications, if any, also stand disposed of.
(NEELAM GULATI) (KAMLESH RAWAT)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
(Signed Reportable order is placed on the file)