Punjab-Haryana High Court
Mahadev vs Dilbag Singh & Others on 12 August, 2009
C.R. No. 1719 of 2008 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 1719 of 2008 (&M)
Date of Decision : 12.8.2009
Mahadev
.......... Petitioner
Versus
Dilbag Singh & others
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. R.K. Gupta, Advocate
for the petitioner.
Mr. Sudhanshu Makkar , Advocate
for respondents No. 1 to 8.
****
VINOD K. SHARMA, J. (ORAL)
C.M. No. 5648-CII of 2008 This is an application for exemption from filing of certified / original copy of Annexures P-1 to P-4.
For the reasons stated in the application, C.M. is allowed, the filing of certified / original copy of Annexures P-1 to P-4, is dispensed with. C.R. No. 1719 of 2008 & C.M. No. 5649-CII of 2008 This judgment shall dispose of C.R. No. 1719 of 2008 titled Mahadev Vs. Dilbag Singh & others, C.R. No. 1792 of 2008 titled Mahadev Vs. Dilbag Singh & others, C.R. No. 1793 of 2008 titled Mahadev Vs. Dilbag Singh & others, C.R. No. 2438 of 2008 titled Dilbag Singh & others Vs. Mahadev and C.R. No. 2457 of 2008 titled Dilbag Singh & others Vs. C.R. No. 1719 of 2008 2 Mahadev, as common questions of law and facts are involved in these revision petitions.
The petitioner / judgment debtor in C.R. No. 1719 of 2008 titled Mahadev Vs. Dilbag Singh & others, C.R. No. 1792 of 2008 titled Mahadev Vs. Dilbag Singh & others and C.R. No. 1793 of 2008 titled Mahadev Vs. Dilbag Singh & others, have challenged the dismissal of petition moved under Section 28 of the Specific Relief Act for rescission of the Contract, whereas the respondent / decree-holder i.e. petitioner in C.R. No. 2438 of 2008 titled Dilbag Singh & others Vs. Mahadev and C.R. No. 2457 of 2008 titled Dilbag Singh & others Vs. Mahadev have challenged the grant of interest @ 12 % p.a. on the amount deposited by the decree- holder for execution of the conveyance deed.
For the sake of brevity the facts are being taken from C.R. No. 1719 of 2008 titled Mahadev Vs. Dilbag Singh & others.
The petitioner / judgment debtor entered into an agreement to sell land measuring 48 Kanals situated at village Meham at consideration amount of Rs. 1,05,000/- ( Rupees one lac and five thousand only ) per acre. The date of execution of the conveyance deed was fixed as 31.3.1989. The respondent / decree-holder could not arrange for the entire sale consideration, and on oral arrangement between the parties, two sale deeds were executed on 5.4.1989 i.e. for 14K-8M for a total sale consideration of Rs. 1,90,000/- ( Rupees one lac and ninety thousand only), and sale deed dated 22.8.1989 for land measuring 2K-16M for total sale consideration of Rs. 30,000/- ( Rupees thirty thousand only ). As per the petitioner, this was C.R. No. 1719 of 2008 3 after adjusting the earnest money paid by the respondent / decree-holder.
On 18.9.1992 i.e. prior to expiry of limitation period the respondent / decree-holder filed a suit for specific performance, with regard to the remaining land which was agreed to be sold by way of agreement dated 28.9.1988.
The suit was decreed by the learned trial Court on 19.8.1997. The learned Court ordered the specific performance of remaining land measuring 31K-4M on payment of Rs. 4,10,000/- ( Rupees four lac and ten thousand only ), but no time for payment of decretal amount and execution of conveyance deed was fixed in the decree. The respondent / decree-holder took no steps to get the conveyance deed executed by offering the amount or depositing it in the Court. The petitioner, therefore, moved an application on 22.10.1997, for correction of decree, which was allowed on 16.7.1998 and the learned trial Court was pleased to pass the following amended decree :-
"This suit is coming on the day for final disposal before me ( Sh. A.K. Singla, HCS, Civil Judge ( Jr. Div.) Rohtak in the presence of Sh. R.S. Ahlawat, Advocate for the plaintiffs and Sh. N.N. Girotra, Adv. For the defendants.
It is ordered that the
plaintiffs are entitled to a
decree for specific performance
of agreement to sell in respect
of land measuring 31K 4 Marlas
C.R. No. 1719 of 2008 4
comprising of Khasra 67/17 Min
east, south (1-4), 17(8-0), 18
Min East (2-0), 23 Min East (2-
0), 24(8-0), and 74/3 Min East
(2-0), 4(8-0) situated at village
Meham Teh. Meham Distt. Rohtak,
in consideration of Rs.
4,10,000/- as price and for
execution of sale deed and its
registration in pursuance of
agreement to sell dated 28.9.88
and subsequent writings of
agreement to sell dated 13.3.89,
31.3.89, 5.4.89, 1.8.89, 22.8.89,
21.9.89 as prays for. Costs of
the suit is awarded to the
plaintiffs and the parties are
directed to get the sale deed
executed and registered within
one month on payment of Rs.
4,10,000/- by the plaintiffs to
the JD/ defendant. If any party
fails to perform his part of
contact then other party can
approach this court after expiry
of one month for specific
performance of the contract."
According to the amended decree, referred to above, the decree- holder was to get the conveyance deed executed by 15.8.1998. It being a holiday, the conveyance could be got executed on 16.8.1998 or in the alternative he could have approach the learned executing Court to get the agreement executed by depositing of sale consideration. C.R. No. 1719 of 2008 5
Instead of moving application by depositing the amount for execution within the stipulated period the respondent / decree-holder filed the application for execution on 20.8.1998 and deposited a sum of Rs. 2,24,079/- ( Rupees two lac and twenty four thousand and seventy nine only ), as decretal amount.
The judgment debtor moved an application under Section 28 of the Specific Relief Act for rescission of the Contract on the ground that. as the respondent / decree-holder failed to deposit the sale consideration. Therefore, the contract be rescinded.
Whereas the stand of the respondent / decree-holder was on 16.8.1998 the decree-holder was present in the office of Sub Registrar for execution of the conveyance deed, but it was the petitioner who failed to come present and, therefore, the application was moved on 18.8.1998 and, as per order of the learned Court a sum of Rs. 2,24,079/- ( Rupees two lac and twenty four thousand and seventy nine only ) was deposited on 20.8.1998.
The respondent / decree-holder, therefore, is aggrieved by the impugned part of order vide which the executing Court directed the payment of interest @ 12% p.a. on the amount deposited, on the plea that once amount was deposited in Court, there was no occasion to grant interest on this amount.
By way of impugned order, the learned executing Court has been pleased to dismiss the objections and application moved by the petitioner under Section 28 of the Specific Relief Act by granting interest @ C.R. No. 1719 of 2008 6 12% on the amount deposited.
The learned executing Court by way of impugned order held that, there were two executions filed by the Decree-holder for execution of the decree, whereas, on the other hand the petitioner / judgment debtor filed application for rescission of contract on the ground of non deposit of decretal amount within the stipulated period.
In support of the plea the contract was liable to be rescinded, on account of non-deposit of decretal amount, the petitioner had placed reliance on the judgment of this Court in the case of Onkar Nath Vs. Basir and others 1985(2) PLR 432, wherein this Court has been pleased to lay down as under :-
"Held if the purchaser had made an arrangement for the money and the petitioners refused to accept the same, they could deposit the amount in the Court and apply for execution of the decree. But for the reasons best known to them they did not adopt that course. They even did not serve any notice on the petitioners that they ( Petitioners) had refused to accept the money and execute the sale deed. The seller has been given a right to make an application for rescission of the contract after the decree C.R. No. 1719 of 2008 7 has been passed against him,if the purchaser fails to pay the purchase money as directed by the Court within the prescribed period or such further period as the Court may allow. The contract of sale cannot be rescinded on any other ground except the one provided in the section.
As already observed above, the respondents, failed to pay the sale consideration within the prescribed period and they did not apply for extension of the period for doing so. Therefore, the petitioners became entitled to get the contract rescinded."
Reliance was also placed on the judgment of this Court in the case of Chanda Vs. Rattni and another 1999(3) LJR 457, wherein again this Court was pleased to lay down that payment of the balance sale consideration is a condition precedent for execution of the sale deed, it implies that the plaintiff / decree-holder is required to deposit the balance sale consideration within the stipulated period in the first instance and it was only thereafter the judgment-debtors were required to execute the sale deed. In the said case the learned trial Court had rescinded the contract for want of decretal amount, and the order was upheld by this Court.
Whereas the respondent / decree-holder contested the C.R. No. 1719 of 2008 8 application under Section 28 of the Specific Relief Act on the plea that the application was moved only to create hurdles in execution of the decree. It was the case of the respondent / decree-holder that the petitioner / judgment debtors have failed to perform their part of contract, and claimed the decretal amount stood deposited by the decree-holder. The details of the payment made were shown to be as under :-
"g) Rs. 1 lac paid on 28.9.88 as
earnest money Ex. P-1.
h) Amount paid on 13.3.89 Rs.
75,000/- as per endorsement mark B on
Ex.P1.
i) Rs. 1 lac paid on 31.3.89 as per
endorsement mark B on Ex.P-1.
j) Rs. 15,000/- paid on 5.4.89 vide
endorsement mark C on Ex.P-1.
k) Rs. 50,000/- paid on 1.8.89 vide
endorsement mark D on Ex.P-1.
l) Rs. 45,000/- paid on 21.9.89 vide
endorsement mark F on Ex.P-1.
Total amount paid Rs. 3,85,000/-.
Sale deed execution for Rs. 1,90,000/-
and Rs. 30,000/-, total Rs.
2,20,000/-.
Amount remained with JD Rs.
1,65,000/-.
Land in respect of which sale deed is
still to be executed - 31Kanals 4
Marlas.
Value of this land : Rs. 4,10,000/-
Amount to be paid at the time of
execution and registration : Rs.
C.R. No. 1719 of 2008 9
4,10,000/- minus Rs. 1,65,000/- = Rs.
2,45,000/-."
In addition, the respondent / decree-holder claimed they were entitled to adjust a sum of Rs. 20,921/- ( Rupees twenty thousand nine hundred and twenty one only ) on account of costs awarded by the Court and the total amount payable was Rs. 2,24,079/- ( Rupees two lac twenty four thousand and seventy nine only). It was further the case of the respondent / decree-holder that a sum of Rs. 2,75,832-50ps on account of remaining price, and registration charges was deposited on 20.8.1998.
The learned executing Court placed reliance on the judgment of this Court in the case of Gurdit Singh Vs. Jagjit Singh 1987(1) Punjab Law Reporter 129 to dismiss the application moved by the petitioner. The judgments relied upon by the petitioner were not dealt with, merely by observing citations were not applicable to the facts and circumstances of the case. The learned Court accepted the deposit made by the respondent / decree-holder to be valid to hold the respondent / DH complied with a decree.
In order to settle the equities the learned executing Court directed the respondent / decree-holder to pay interest @ 12% per annum on the amount for the defaulted period.
The learned Court by relying upon the judgment of the Hon'ble Himachal Pradesh High Court in the case of Dalip Singh Vs. Ram Nath and another 2003(2) Latest Judicial Reports 205 held the balance decretal amount could be accepted, as no directions were given by the learned trial Court on the failure of the plaintiff to deposit the balance sale consideration, C.R. No. 1719 of 2008 10 any adverse order was to be passed. The learned Court further held that it could not go behind the decree.
Mr. R.K. Gupta, learned counsel appearing on behalf of the petitioner vehemently contended the impugned order cannot be sustained inasmuch as the respondent / decree-holder till date have not paid the decretal amount to get the sale deed executed.
The contention of the learned counsel for the petitioner is though in the initial decree no period was prescribed, however, while modifying the decree a specific direction was given for deposit of an amount of Rs. 4,10,000/- within one month, but the respondent failed to comply with the decree, therefore, the petitioners were entitled to rescission of the contract.
In support of this contention, the learned counsel for the petitioners placed reliance on the judgment of this Court in the case of Resham Singh Vs. Manmohan Singh and others 1985 PAP 1981 and Onkar Nath and another Vs. Basir and others (Supra).
Whereas on the other hand, the learned counsel for the respondent contended the period prescribed to seek execution of decree in terms of the Article 136 of the Limitation Act is to be treated as reasonable period for the purpose of deposit of decretal amount. The Court can even today order the payment of decretal amount.
On consideration, I find force in the contention raised by the learned counsel for the petitioners. The Hon'ble Supreme Court in the case of Kumar Dhirendra Mullick Vs. Tivoli Park Apartments (P) Ltd. 2004(4) C.R. No. 1719 of 2008 11 RCR(Civil) 763 was pleased to observe it is within the jurisdiction of the Court to refuse to execute a decree on the ground of unreasonable delay. Furthermore, the Hon'ble Supreme Court in the case of Chanda (dead) through LRs vs. Rattni and Anr. 2007(2) RCR (Civil) 534 was pleased to hold Section 28 of the Specific Relief Act provides for complete relief to both the parties in terms of the decree and, therefore, it is within the discretion of the Court to extend time, if so, required on the facts and circumstances of the case. The question as to what is a reasonable time to refuse the execution of decree for specific performance on account of non- deposit of decretal amount was considered by the Hon'ble Supreme Court in the case of Hungerford Investment Trust Ltd. (In voluntary Liquidation), Appellant V.. Hridas Mundhra and others, Respondents AIR 1972 SC 1826 , wherein the Hon'ble Supreme Court has been pleased to lay down as under ``24. As the Court retained control over the matter despite the decree, it was open to the Court, when it was alleged that the party moved against has positively refused to complete the contract to entertain the application and order rescission of the decree if the allegation was proved. We, therefore, think that the application of the appellant was competent.
25. It was contended on behalf of Mundhra that he was C.R. No. 1719 of 2008 12 always ready and willing to pay the purchase money but since the decree did not specify any time for payment of the money, there was no default on his part. In other words, the contention was that since the decree did not specify a time within which the purchase money should be paid and, since an application for fixing the time was made by the appellant and dismissed by the Court, Mundhra cannot be said to have been in default in not paying the purchase money so that the appellant might apply for rescission of the decree. If a contract does not specify the time for performance, the law will imply that the parties intended that the obligation under the contract should be performed within a reasonable time. Section 46 of the Contract Act provides that where, by a contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time and the question "what is reasonable time" is, in each particular case, a question of C.R. No. 1719 of 2008 13 fact. We have already indicated that the contract between the parties was not extinguished by the passing of the decree it subsisted notwithstanding the decree. It was an implied term of the contract and, therefore, of the decree passed thereon that the parties would perform the contract within a reasonable time. To put it in other words, as the contract subsisted despite the decree and as the decree did not abrogate or modify any of the express or implied terms of the contract, it must be presumed that the parties to the decree had the obligation to complete the contract within a reasonable time."
If the facts of the case are examined in view of the judgment referred to above, it leaves no manner of doubt the application moved by the petitioner deserved to be allowed, whereas the application moved by the respondent / decree-holder deserved to be dismissed.
It is not in dispute the learned Civil Court passed decree in favour of the respondent on the condition the decree-holder would deposit a sum of Rs. 4,10,000/-( Rupees four lac and ten thousand only ) within one month.
Instead of depositing the amount, the petitioner chose to draw his own calculation to hold the amount payable was only Rs. 2,24,000/- C.R. No. 1719 of 2008 14 ( Rupees two lac and twenty four thousand only ) against the specific findings by the learned Court.
The learned executing Court also, in spite of knowing fully well it was not open to the executing Court to go behind the decree, accepted the version of the respondent to treat the payment made, though less, to be the payment made in satisfaction of decree. The payment relied upon as payment towards decretal amount, is not the payment, which was made by the decree-holder to the judgment debtor after passing of the decree.
In case, the respondent had felt that, amount of Rs. 4,10,000/- ( Rupees four lac and ten thousand only ), was not payable, the remedy was to get the decree corrected from the Court of competent jurisdiction, but the respondent on his own had no authority, whatsoever, to decide as to what amount out of Rs. 4,10,000/-( Rupees four lac and ten thousand only ) was still to be paid to the petitioner. The decree in favour of the respondent for specific performance was passed on 19.8.1997, and till date the respondent failed to make the payment of decretal amount. There is, thus, inordinate delay in compliance with the decree by the respondent / decree-holder, instead of making the payment the respondent challenged the grant of interest of 12% p.a. on the amount deposited, which leaves no manner of doubt that the respondent / decree-holder has no intention to execute the decree, and was delaying the payment on one pretext or the other.
Consequently, the revision Nos. C.R. No. 1719 of 2008 titled Mahadev Vs. Dilbag Singh & others, C.R. No. 1792 of 2008 titled Mahadev C.R. No. 1719 of 2008 15 Vs. Dilbag Singh & others, C.R. No. 1793 of 2008 titled Mahadev Vs. Dilbag Singh & others are allowed. The impugned order is set aside and the application moved by the petitioner for rescinding the contract under Section 28 of the Specific Relief Act stands allowed, but with no order as to costs.
In view of the decision referred to above, C.R. No. 2438 of 2008 titled Dilbag Singh & others Vs. Mahadev and C.R. No. 2457 of 2008 titled Dilbag Singh & others Vs. Mahadev have been rendered infructuous and are dismissed as such. The respondent / decree-holder shall be entitled to withdraw the amount deposited by him in Court.
12.8.2009 ( VINOD K. SHARMA ) 'sp' JUDGE