Calcutta High Court
Prime Promotors Pvt. Ltd. vs Aroop Kumar Chatterjee And Ors. on 22 December, 1998
Equivalent citations: AIR1999CAL186, AIR 1999 CALCUTTA 186, (1999) 1 CAL HN 243, (1999) 2 CAL WN 35, (1999) 3 ICC 179
Author: Altamas Kabir
Bench: Altamas Kabir
ORDER Altamas Kabir, J.
1. The plaintiff/petitioner entered into an agreement with the defendant/opposite party No. 1 for sale of the property described in the schedule to the plaint for a sum of Rs. 20,00,000/-, out of which the plaintiff paid a sum of Rs. 51,000/- as earnest money. In view of the failure of the defendants to complete the sale, the plaintiff filed a suit for specific performance of contract against the defendants, being Title Suit No. 59 of 1992, before the learned Assistant District Judge, 9th Court, Alipore, District 24-Parganas (South), and the same was decreed on contest on 31st May, 1994, in the manner following, :-' namely, "It is ordered and decreed that the suit be and the same is decreed on contest against the defendants. The plaintiff do get a decree for specific performance of contract in respect of the suit property in its position, as it stands with the tenants. The plaintiff be directed to deposit or pay to the defendants the balance consideration money of Rs. 19,49,000/- only within 30 days hereof and upon the deposit or payment of the same the defendant shall execute and register a proper deed of conveyance in favour of the plaintiff at the cost to be borne by the plaintiff within a further period of 30 days. In default of deposit of payment of the balance consideration money within the time mentioned above the suit shall stand dismissed."
2. In terms of the aforesaid judgment and decree, the time for making deposit of the ballance consideration amount was valid till 30th June, 1994. On 27th June, 1994, the plaintiff/ petitioner filed an application before the learned Court below praying for extension of the time for making payment of the balance consideration money and also to specify the mode of payment of the same.
3. The said application was taken up for hearing by the learned Court below on 28th June, 1994, and by its Order No. 48 of even date the learned Court below rejected the petitioner's application on the ground that since the suit had been finally disposed of and in view of the passing of the decree the Court had no power to extend the time for payment of the amount under the decree. In effect, the learned Court below was of the view that after passing the decree the Court had become functus officio and did not retain jurisdiction to pass any further orders in the suit.
4. It is the said order which has been impugned in the instant revisional application.
5. Appearing in support of the revisional application, Mr. S, P. Roychowdhury submitted that the learned Court below had on a misconstruction of the law failed to exercise the jurisdiction vested in the Court, both under Sections 148 and 151 of the Code of Civil Procedure and under Section 28(1) of the Specific Relief Act, 1963.
6. Mr. Roychowdhury urged that since the application for extension of time had been filed when the period for making the balance deposit had not yet expired and the order thereupon had also been passed within the said period, the learned Court below acted in the exercise of its jurisdiction erroneously in rejecting the plaintiff/ petitioner's application upon holding that the Court did not have power to extend the time for payment of the amount under the decree.
7. Mr. Roychowdhury submitted that Section 148 clothed the Court with sufficient power to enlarge the time for depositing the balance amount in terms of the decree passed on 31st May, 1994, and the learned Court below acted in the exercise of its jurisdiction erroneously in refusing to do so upon holding that after disposing of the suit the Court had no power to consider such prayer.
8. Mr. Roychowdhury then referred to Section 28 of the Specific Relief Act, 1963, and submitted that Sub-section (1) thereof, in clear and unambiguous terms, vested the Court with powers to extend the time for making payment in terms of the decree passed in a suit for specific performance.
9. In support of his submissions Mr. Roychowdhury firstly referred to the decision of the Hon'ble Supreme Court in the case of Mahanth RamDasv.GangaDas, it was, inter alia, held the Court could always take note of events which happen within the time fixed by a Court for the doing of an act by virtue of a conditional decree. Mr. Roychowdhury also relied on the decision of a learned single Judge of this Court in the case of Smt. Mangala Ghosh v. Rabindra Nath Hozra, wherein it was held by placing reliance on a Division Bench decision in the case of Sunity Chandra Bose v. Nil Ratan Sinha, that under Section 28 of the Specific Relief Act the Court was entitled to extend the time for deposit of the purchase money or balance of the purchase money even in a case where a consent decree is passed in a suit for specific performance.
10. Mr. Roychowdhury then referred to another single Bench decision of this Court in the case of Mrs. Uma Basu v. Swapan Chatterjee, where the same sentiments were expressed and it was observed that the Court passing the decree was empowered to extend the time for deposit of the consideration money under Section 28(1) of the Specific Relief Act and under Section 148 of the Code of Civil Procedure.
11. Mr. Roychowdhury also referred to the decision of the Hon'ble Supreme Court in Ramankutty Guptan v. Awara, where it was, inter alia, held that application for recession or for extension of time to make payment under Section 28 of the Specific Relief Act could even be made at the appellate stage.
12. Mr. Roychowdhury submitted that since the power to extend the time for depositing the consideration in a suit for specific performance of contract was incorporated in the Act itself, the Court passing the decree was sufficiently vested with powers to extend the time for making such deposit and the learned Court below committed an error of law in holding otherwise.
13. Appearing for the opposite parties. Mr. Sudhis Dasgupta firstly pointed out that the decree passed by the learned Court below was a conditional decree and such decrees amounted to final decree as opposed to decrees of a preliminary nature in that in respect of final decrees the Court became functus officio, while in respect of the latter the Court still remained in seisin of the matter and was competent to pass further orders therein.
14. Mr. Dasgupta submitted that the Courts had repeatedly held that while the Court's powers to enlarge the time for the doing of an act before the time fixed had run out was embodied in Sections 148, 149 and 151 of the Code of Civil Procedure, an exception was made in respect of conditional decrees where the Court became functus officio once the decree was passed and it did not retain jurisdiction to alter the decree..
15. In support of his submission Mr. Dasgupta also referred to the decision of the Hon'ble Supreme Court in the case of Mahanth Ram Das v.
Ganga Das (supra) relied upon by Mr. Roychowdhury, and submitted that it had been observed that "procedural orders though peremptory (conditional decrees apart) are, in essence, in terroram, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed."
16. Mr. Dasgupta urged that a conscious distinction had been made in respect of decrees which were preliminary in nature and those which were conditional, which made all the difference in determining as to w nether a Court remained in seisin over a matter or not.
17. Mr. Dasgupta then referred to a Bench decision of this Court in the case of Bhutnath Das v. Sahodeb Chandra Panja, , wherein it was held that were a conditional decree is passed, the Court loses seisin over the matter and has no further jurisdiction thereafter to extend the time for making deposit as fixed by an order made for specific performance of a contract.
18. Reference was also made by Mr. Dasgupta to a decision of the Hon'ble Supreme Court in the case of Mrs. Sandhya Rani Sarkar v. Smt. Sudha Rani Debi, where the Hon'ble Supreme Court was of the view that a conditional decree in a suit for specific performance with the condition that in the event the purchase failed to deposit the balance consideration within the stipulated time the suit would stand dismissed, is not a preliminary decree. Mr. Dasgupta sought to emphasise that in such circumstances the Court becomes functus officio as it does not retain jurisdiction over the matter.
19. In support of his contention that Section 148 of the Code of Civil Procedure applied to procedural orders and not to conditional decrees, Mr. Dasgupta referred to a single Bench decision of the Punj ab and Haryana High Court in the case of Smt. Parmeshri v. Naurata, where the learned Judge upon reference to the decision of the Hon'ble Supreme Court in Mahanth Ram Das's case (supra) reiterated that Section 148 of the Code of Civil Procedure would not apply to conditional decrees.
20. Several other decisions on the abovepoint were also cited by Mr. Dasgupta to which refer-
ence will be made, if required.
21. Mr. Dasgupta then submitted that Section 28 of the Specific Relief Act, 1963, will also have to be considered in the light of whether the decree in question was conditional or not. Mr. Dasgupta submitted that if the decree contained a stipulation that the suit would stand dismissed in the event the balance consideration money was not deposited or paid within the time fixed under the decree, the provisions of Section 28(1) of the aforesaid Act would also have no application as the Court becomes functus officio after passing such a conditional decree.
22. On the merits of the application filed for extension of time, Mr. Dasgupta submitted that one of the more important pre-conditions for a decree in a suit for specific performance of contract is the readiness and willingness of the plaintiff to perform his part of the contract. Mr. Dasgupta urged that from the averments made in the application for enlargement of time it would be evident that the plaintiff-petitioner was not ready to deposit the balance consideration money and the said application was liable to be dismissed on such count as well.
23. In support of his submission Mr. Dasgupta referred to the decision of the Hon'ble Supreme Court in the case of N. P. Thirugnanam v. Dr. R. Jagan Mohan Rao , where in a suit under the Specific Relief Act, 1963, the Supreme Court observed that continuous readiness and willingness on the part of the plaintiff is a condition precedent for grant of relief to the plaintiff. Where the plaintiff was found to be dabbling in real estate transactions without means to pay for the property and failed to pay the consideration money within the date stipulated by the trial Court, the plaintiff was not ready and willing to perform his part of the contract and in such a case specific performance of the contract could not be decreed.
24. In this regard Mr. Dasgupta also referred to a Bench decision of this Court in P. G. Sinha v. Commodore K. C. Chatterjee, where it was reiterated that the plaintiff must prove continuous readiness and willingness to perform his part of the contract.
25. Certain other decisions were referred to by Mr. Dasgupta on the same points to which reference may later be made, if required.
26. Mr. Dasgupta submitted that the definition of 'decree' in Section 2(2) of the Code of Civil Procedure, read with the Explanation thereto, made the distinction between a preliminary decree and a final decree quite clear and judicial pronouncements made it further clear that when a final decree was passed the Court ceased to have seisin over the matter. Referring once again to the decision of the Hon'ble Supreme Court in Mrs. Sandhya Rani Sarkar's case (supra) Mr. Dasgupta submitted that since in the said decision a conditional decree had been held not to be a preliminary decree, it had to be a decree of a final nature which could not be interfered with, except in appeal.
27. Mr. Dasgupta submitted that the provisions of Section 28 of the Specific Relief Act, 1967, would have to be read in that context and not in isolation thereof. Mr. Dasgupta contended that the use of the expression "decree" in Section 2 of the above Act could not clothe the Court with jurisdiction when it ceased to have seisin over the matter.
28. Mr. Dasgupta urged that the learned Court below had, in the facts and circumstances of the case, rightly rejected the plaintiff/petitioner's prayer for extension of the time to deposit the balance consideration money under the judgment and decree dated 31st May, 1994. Mr. Dasgupta submitted that even on merits the petitioner had failed to make out a case for such extension and in any view of the matter the revisional application was liable to be dismissed.
29. Relying to Mr. Dasgupta's submissions, Mr. Roychowdhury submitted that the provision in the Specific Relief Act, 1963, regarding rescission of contracts was also there in the Act of 1877. Mr. Roychowdhury submitted that Section 35 of the 1877 Act had been replaced by Sections 27 and 28 of the 1963 Act with the addition that the Court which passed the decree for specific performance has been specifically empowered to enlarge the time for paying the purchase money and any other sum as directed by the Court.
30. Mr. Roychowdhury then submitted that the decision in Mr. Sandhya Rani Sarkar's case (supra) cited by Mr. Dasgupta, was, in fact, a decision in support of the proposition that a conditional decree where it is stipulated that in default of the doing of an act the suit would stand dismissed, is not a preliminary de-
cree. In fact, in the said matter the revisional Court enlarged the time for making the deposit as directed in terms of the decree for specific performance and even at the appellate stages the time was enlarged.
31. Mr. Roychowdhury urged that the decision in Sandhya Rani Sarkar' s case would have to be considered in the light of the provisions of Section 28(1) of 1963 Act where no distinction had been made between a preliminary decree and a final decree.
32. Reiterating the decision of the Hon'ble Supreme Court in Ramankutty Guptan's case (supra), Mr. Roychowdhury urged that even the Hon'ble Supreme Court had observed that Section 28(1) itself gives power to the Court to extend the time on such terms as the Court may allow to pay the purchase money or other sum which the Court has directed the decree-holder to pay.
33. From the submissions made on behalf of the respective parties and the materials on record the short point which emerges for decision is whether the learned Court below failed to exercise the jurisdiction vested in it by rejecting the petitioner's prayer for extension of time to deposit the balance consideration money on the ground that after passing of the decree the Court did not retain power to enlarge the time. In other words, after passing the decree the Court became functus officio.
34. On behalf of the opposite parties it has been accepted that had not the decree been a conditional decree, providing for dismissal of the suit in the event the plaintiff/petitioner failing to deposit the balance consideration within the time fixed under the decree, the Court below would have had jurisdiction under Section 148 of the Code of Civil Procedure and Section 28(1) of the 1963 Act to enlarge the time for making such deposit as the decree would not have attained finality. What Mr. Dasgupta has tried to establish is that once the Court passes a final decree, it becomes functus officio for all purposes, including those indicated in Section 148 of the Code of Civil Procedure and Section 28(1) of the 1963 Act.
35. Some of the decisions cited by Mr. Dasgupta of the Bombay High Court, the Delhi. High Court and the High Court of Punjab and Haryana, support the stand taken by Mr. Dasgupta that after passing a conditional decree the Court loses seisin over the matter and has no further power to extend the time for the performance of an act under such conditional decree. Some of the other decisions cited by Mr. Dasgupta supports his submission that a conditional decree is not a preliminary decree, but a final decree, but do not help the case of the opposite parties any further.
36. On the other hand, the other decisions of the Hon'ble Supreme Court cited by Mr. Dasgupta run contrary to his submissions and appear to support the plaintiff/petitioner's case.
37. The decision of the Hon'ble Supreme Court in Mahanth Ram Das's case (supra) has to be construed in the facts of the case. In the said case, at the appellate stage it became necessary to amend the relief in the suit to include the relief of possession of the properties involved in the suit. The appeal was decided in favour of the plaintiff on condition that he paid the Court-fee on the amended relief for which purpose the case was sent to the trial Court for determining the value of the properties and for fixing the amount of Court-fee to be paid. After the receipt of the report from the Subordinate Judge, the Patna High Court directed its office to calculate the amount of Court-fee payable on the valuation given and to inform the plaintiff-appellant the amount of Court-fee he was required to pay, both on the plaint and the memorandum of appeal. Three months' time was given to the plaintiff-appellant to pay the Court-fees in the Trial Court as also the High Court and the time was to run from the date on which the counsel for the appellant was informed of the calculation by the Deputy Registrar of the High Court. It was categorically stipulated that if the amount was not paid within the time given the appeal would stand dismissed.
38. The decision of the Hon'ble Supreme Court was rendered in such background.
39. On the date on which the stipulated time was to expire, the appellant before the Hon'ble Supreme Court filed an application for enlargement of time to make the payments in instalments, but the same was dismissed by the High Court on ground that by virtue of the conditional order the appeal had already stood dismissed as the amount was not paid within the time given. An application moved thereafter under Section 151 of the Code of Civil Procedure was also rejected. The appellant then filed a review petition which was also dismissed upon rejection of the submissions made on behalf of the appellant that the time to make the deposit could have been enlarged under Sections 148 or 149 of the Code of Civil Procedure.
40. The appellant then moved the Hon'ble Supreme Court on the basis of a certificate granted by the High Court. The Hon'ble Supreme Court set aide the order of dismissal of the appeal and the suit and granted two month's time for payment of the deficit Court-fee upon holding that the High Court should have enlarged the time for making the deposit as it was clothed with ample power under Sections 148, 149 and 151 of the Code of Civil Procedure to do so.
41. It may not be out of place to point out that in the facts of the above case, the High Court was the Court of first instance which passed a conditional order directing the appellant to deposit the Court-fee on the amended relief in the suit within a stipulated time failing which the appeal would stand dismissed, and notwithstanding such fact the Hon'ble Supreme Court was clearly of the view that Sections 148, 149 and 151 of the Code clothed the High Court with ample powers to enlarge the time for making such deposit. The observation made in the judgment regarding procedural orders being peremptory (conditional decrees apart) does not in any way detract from the Hon'ble Supreme Court' findings and the directions given on the basis thereof.
42. In Ramankutty Guptan's case (supra) the provision of Section 28(1) of the Specific Relief Act, 1963, were considered by the Hon'ble Supreme Court which, inter alia, observed that under the said provisions the Court, which passed the decree was empowered to extend the time for making the deposit in terms of the decree. In fact, in the facts of the said case, the decree of the appellate Court was to be construed to be a decree passed by the Court of first instance since the trial Court had dismissed the suit. In the said context it was observed by the Hon'ble Supreme Court as follows (para 6 of AIR) :--
"Therefore, where a decree for specific performance has been dismissed by the trial Court, but decreed by the appellate Court, it should be construed to be in the same suit. When the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) itself gives power to the Court to extend the time on such terms as the Court may allow to pay the purchase money or other sum which the Court has ordered him to pay."
43. As far as Sandhya Rani Sarkar's case (supra) is concerned, it is, as pointed out by Mr. Roychowdhury, an authority for the proposition that a conditional decree is a, final decree. The question is whether after having passed a conditional decree in a suit for specific performance, the Court can enlarge the time indicated in the said decree in view of Section 28(1) of the Specific Relief Act, 1963, notwithstanding the fact that it was provided in the, degree that the suit would stand dismissed in case,, of default in making payment under the decree.
44. The decision of the Hon'ble Supreme Court in Mahanth Ram Das's case (supra) supports the view that the Court under Sections 148, 149 and 151 of the Code of Civil Procedure was clothed with sufficient powers to enlarge the time for making deposits even in the case of a conditional decree, particularly when the application for enlargement of the time was made before the time stipulated expired. It may be kept in mind that in this case also the application for extension of time was made and disposed of before the expiry of the time fixed for making the deposit.
45. The said view has been uniformly followed by this Court in the case of 1) Nikhil Kumar Saha v. Hedayet Ali Molla, 2) Mrs. Uma Basu v. Swapan Chatterjee, Smt. Mangala Ghosh's case (supra).
46. Apart from the above, I am inclined to, agree with Mr.. Roychowdhury that Section 28(1) of the Specific Relief Act, 1963, empowers the Court to extend the time for making deposit under a decree without making any distinction with regard to decrees either of a preliminary or final nature. Section 28(1) of the above Act speaks of decrees in general and, in my view, covers decrees of both kinds.
On the merits of the application for extension of time, a plausible ground has been made out for extension of time for the first time. Inspite of readiness and willingness to conclude the contract, a party cannot always be expected to keep large sums of liquid cash ready for use at short , notice. That is why in these types of cases gener ally the Courts give sufficient time to the party to make the deposit under the decree.
47. For the aforesaid reasons, this application must succeed and is allowed. The impugned order No. 48 dated 28th June, 1994, passed by the learned Assistant District Judge, 9th Court, Alipore, District 24 Parganas, in Title Suit No. 59 of 1992, is hereby set aside and the application for extension of time filed by the plaintiff/petitioner on 27th June, 1994, is hereby allowed. The time for making the deposit under the decree is extended by a period of one month from the date of this order.
48. There will be no order as to costs.
49. Let a copy of this order be communicated to the learned Court below forthwith.