Madras High Court
P.Baskaran ... Revision vs P.Soundararjan ... 1St on 22 February, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/02/2012
C O R A M
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(NPD)Nos. 1750, 1751 and 1752 of 2011
and
C.R.P.No. 705 of 2012
P.Baskaran ... Revision Petitioner/
Plaintiff in C.R.P.Nos.1750 to
1752 of 2011 and
1st respondent in
C.R.P.No.705 of 2012
Vs.
1. P.Soundararjan ... 1st Respondent/
1st Defendant in C.R.P.Nos.
1750 to 1752 of 2011 and
Revision Petitioner in
C.R.P.No.705 of 2012
2. P.Venkatesan ... 2nd Respondent/
2nd Defendant in C.R.P.Nos.
1750 to 1752 of 2011 and
2nd Respondent in
C.R.P.No.705 of 2012
Prayer in C.R.P.No.1750 of 2011:
Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the order dated 8.3.2011 passed in I.A.No.790 of 2010 in O.S.No.5 of 2009 on the file of the Hon'ble Fast Track Court No.II, Poonamallee and allow the above C.R.P.
Prayer in C.R.P.No.1751 of 2011:
Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the order dated 8.3.2011 passed in I.A.No.871 of 2010 in O.S.No.5 of 2009 on the file of the Hon'ble Fast Track Court No.II, Poonamallee and allow the above C.R.P.
Prayer in C.R.P.No.1752 of 2011:
Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the order dated 8.3.2011 passed in I.A.No.950 of 2010 in O.S.No.5 of 2009 on the file of the Hon'ble Fast Track Court No.II, Poonamallee and allow the above C.R.P.
Prayer in C.R.P.No.705 of 2012:
Civil Revision Petition has been filed under Section 115 of the Civil Procedure Code to set aside the order dated 8.3.2011 passed in I.A.No.945 of 2010 in O.S.No.5 of 2009 on the file of the Hon'ble Fast Track Court No.II, Poonamallee and allow the above C.R.P.
For Petitioner in
C.R.P.Nos.1750 to 1752 of 2011
and 1st Respondent in
C.R.P.No.705 of 2012 .. Mr. M. Nagasubramanian
For 1st Respondent in
C.R.P.Nos.1750 to 1752 of 2011
and Petitioner in
C.R.P.No.705 of 2012 .. Mr. M. Vivekanandan
For 2nd Respondent in
C.R.P.Nos.1750 to 1752 of 2011
and C.R.P.No.705 of 2012 .. Mr. S.Simon
O R D E R
O.S.No.5 of 2009 on the file of the Additional District Court (Fast Track Court No.2), Poonamallee was filed by one P.Baskaran for specific performance of agreement of sale dated 26.12.2005 executed by the defendants in that suit namely Soundararajan and Venkatesan in his favour. The suit was decreed after contest and as per the decree, the plaintiff P.Baskaran was directed to deposit the balance sale consideration of Rs.10,00,000/- (Rupees Ten lakhs only) before the Court within one month and the 1st defendant namely P.Soundararajan was directed to execute the sale deed in favour of the plaintiff P.Baskaran within a period of two months thereafter. The decree was passed on 17.9.2010. Thereafter, the Decree holder filed I.A.No.790 of 2010 seeking for an extension of time to make the payment of Rs.10,00,000/- and that petition was filed on 18.10.2010 and during the pendency of the said application the Decree holder also filed I.A.No.871 of 2010 seeking permission of the Court to deposit a sum of Rs.5,00,000/- (Rupees Five lakhs only) and prayed fifteen days time for depositing the balance amount of Rs.5,00,000/- and that petition in I.A.No.871 of 2010 was filed on 15.11.2010. The Court below permitted the Decree holder to deposit Rs.5,00,000/-without prejudice to the contention of the respondents/ defendants in the suit. Thereafter, the Decree holder filed I.A.No.950 of 2010 on 30.11.2010 to deposit the balance amount of Rs.5,00,000/- and that was also allowed to be deposited. The Judgement Debtor also filed I.A.No.945 of 2010 to rescind the contract on the ground that the Decree holder has not complied with the decree and he failed to pay a sum of Rs.10,00,000/- (Rupees Ten lakhs only) within a period of one month from the date of decree and therefore the decree for specific performance has to be set aside. The learned District Judge dismissed I.A.No.790 of 2010 filed by the Decree holder seeking extension of time to deposit for a sum of Rs.10,00,000/- holding that after passing of the decree, the Court becomes functus officio and the Court has no power to grant extension of time and therefore the application is not maintainable. Consequent to the dismissal of I.A.No.790 of 2010 the other two applications filed by the Decree holder in I.A.Nos.871 and 950 of 2010 were also dismissed. Strangely, the learned District Judge dismissed the application filed by the Judgement Debtor in I.A.No.945 of 2010 seeking the relief of cancelling the decree as the Decree holder has not paid the balance consideration of Rs.10,00,000/- (Rupees Ten lakhs only) within the time stipulated holding that having regard to the order passed in I.A.NO.790 of 2010 the petition filed by the Judgement Debtor became infructuous. Therefore, the Decree holder filed C.R.P.Nos.1750, 1751 and 1752 of 2011 challenging the orders passed in I.A.No.790, 871 and 950 of 2010 in O.S.No.5 of 2009 and the Judgement Debtor filed C.R.P.No.705 of 2012 against the order passed in I.A.No.945 of 2010 in O.S.NO.5 of 2009.
2. Mr. M.Nagasubramanian, the learned counsel for the revision petitioner in C.R.P.Nos.1750 to 1752 of 2011 submitted that the Court below erred in dismissing the application filed by the Decree holder seeking extension of time holding that the Court has become functus officio after passing of the decree and as per Section 28 of the Specific Relief Act, the Court has got power to grant extension of time for complying with the directions given in the decree and the Court will not become functus officio and he also relied upon the Judgements reported in 1997 (9) SCC, 217 (Sardar Mohar Singh Vs. Mangilal), 2005 (9) SCC, 262 (Kumar Dhirendra Mullick Vs. Tivoli Park Apartments (P) Ltd.,), 2007 (14) SCC, 26 (Chanda Vs. Ratini).
3. On the other hand, Mr.M.Vivekanandan, the learned counsel for the revision petitioner in C.R.P.No.705 of 2012 and who is also appearing for the 1st respondent in C.R.P.Nos.1750 to 1752 of 2011 submitted that the Court below having dismissed the applications filed by the Decree holder in I.A.No.790 of 2010 ought to have allowed, the application filed by the revision petitioner in I.A.No.945 of 2010 and ought to have rescinded the contract and the order of the Court below in dismissing the application is erroneous and is liable to be set aside. He further contended that being a suit for specific performance the Decree holder must always be ready and willing to perform his part of the contract and even after passing of the decree in his favour, the Decree holder was not able to deposit the balance sale consideration as per the decree and therefore the conduct of the Decree holder would only prove that he was not ready to perform his part of the contract and hence he was not entitled to the relief of specific performance and therefore the contract ought to have been rescinded and the petition filed by the Judgement Debtor in I.A.No.945 of 2010 ought to have been allowed by the Court below.
4. At the outset, the Court below ought not to have dismissed the application filed by the Judgement Debtor in I.A.No.945 of 2010 holding that the petition has become infructuous after dismissing the application filed by the Decree holder in I.A.No.790 of 2010. When the Court refused to grant time then the Court ought to have allowed the application filed by the Judgement Debtor. Nevertheless, in this case, the Court below did not dismiss the applications filed by the Decree holder on merits and the application filed by the Decree holder was dismissed on the ground that after passing of the decree, the Court has become functus officio and the Court has no power to grant extension of time. It has been held by the Court below that the case was over on 17.9.2010 when the decree was passed and therefore the application filed by the Decree holder seeking for extension of time is not maintainable. Therefore, the Court below did not dismiss the application filed by the Decree holder on merits and dismissed those applications only on the ground that the Court has become functus officio and the Court has no power to grant extension of time. It is seen from the Judgement relied upon by the learned counsel for the revision petitioner/ Decree holder that the Hon'ble Supreme Court while interpreting Section 28 of the Specific Relief Act clearly held that even after passing of the decree, the Court will not become functus officio and the Court can pass any order either in favour of the Decree holder granting extension of time or in favour of the Judgement Debtor by rescinding the contract for non-compliance of the conditions.
5. In the Judgement reported in 2007 (14) SCC, 26 (Chanda Vs. Ratini), the Hon'ble Supreme Court has held as follows:
" The power under Section 28 of the 1963 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 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 the suit to stand dismissed."
6. In the Judgement reported in 1997 (9) SCC, 217 (Sardar Mohar Singh Vs. Mangilal), it has been held as follows:
" It is clear from Section 28(1) that the Court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that Section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial Court retains its power and jurisdiction to deal with the decree of specific performance. The Court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. The Court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance."
7. Further, in the very same Judgment, the Hon'ble Supreme Court has also held that the provision of Section 28 should be construed liberally and it is not necessary for the Decree holder to give explanation for every days delay and Section 28 is not like Section 5 of the Limitation Act and the Court has to exercise its discretion while granting the extension sought for by the Decree holder having regard to the facts of the case. Therefore, it is clear that even after passing of the decree the Court will not become functus officio and the Court has got power to grant further relief having regard to the conduct of the parties.
8. In this case, as per the decree passed in O.S.No.5 of 2009 dated 17.9.2010, the Decree holder was directed to deposit a sum of Rs.10,00,000/- (Rupees Ten lakhs only) being the sale consideration within one month before the Court. Therefore, the Decree holder is bound to deposit the said amount on or before 16.10.2010. Nevertheless, the Decree holder did not deposit the amount and filed I.A.No.790 of 2010 on 18.10.2010 seeking extension of time stating that during the pendency of the suit he was having the means to pay a sum of Rs.10,00,000/- and later he invested the money in his business and therefore he was not able to mobilize the sum of Rs.10,00,000/- (Rupees Ten lakhs only) immediately after passing of the decree and he is taking steps to pay the amount and for that purpose he may be given a month's time to deposit the sum of Rs.10,00,000/- as ordered in the decree. Though the application was filed two days after the period prescribed in the decree, during the pendency of the said application in I.A.No.790 of 2010, the Decree holder filed I.A.No.871 of 2010 on 15.11.2010 seeking permission of the Court to deposit a sum of Rs.5,00,000/- (Rupees Five lakhs only) and that was allowed to be deposited by the Court and the said amount of Rs.5,00,000/- was deposited on 15.11.2010. Thereafter, the Decree holder also filed I.A.No.950 of 2010 on 30.11.2010 seeking permission of the Court to deposit the balance sale consideration of Rs.5,00,000/- and that was allowed to be deposited by the Court and the said amount was deposited on 30.11.2010. Therefore, before the disposal of I.A.No.790 of 2010, the Court below permitted the Decree holder to deposit a sum of Rs.10,00,000/- and thereafter, dismissed I.A.No.790 of 2010 on 8.3.2011 holding that the Court has become functus officio. Though it was stated in the orders passed in I.A.Nos.871 and 950 of 2010 that the Decree holder was permitted to deposit a sum of Rs.5,00,000/- on 15.11.2010 and another sum of Rs.5,00,000/- on 30.11.2010 without prejudice to the order passed in I.A.No.790 of 2010, in my opinion, the Court below ought to have exercised its discretion while passing the order in I.A.No.790 of 2010 and ought not to have dismissed the application on the ground that the Court has become functus officio. According to me, though the plaintiff in a suit for specific performance should prove his readiness and willingness throughout the period of contract and as well as during the pendency of the suit and after the suit, having regard to the findings in O.S.No.5 of 2009 that the Decree holder has got the means to pay the balance sale consideration and he was ready and willing to perform his part of the contract, the Court below ought to have considered the allegations made in the affidavit filed in support of the application seeking extension of time to pay the balance sale consideration and ought to have allowed the application. Therefore, the Court below erred in holding that the Court has become functus officio after passing of the decree and therefore the application filed by the revision petitioner seeking extension of time is not maintainable and the Court below ought to have considered the allegations made in the affidavit filed by the Decree holder. According to me, I am satisfied that the Decree holder has explained the circumstances for the delay in not depositing the amount within the period stipulated and he has also proved his bona fide by depositing the entire balance sale consideration before the disposal of I.A.No.790 of 2010.
9. Hence, the orders passed in I.A.Nos.790, 871 and 950 of 2010 are set aside and the revisions in C.R.P.Nos.1750, 1751 and 1752 of 2011 are allowed. Consequent to the order passed in C.R.P.Nos.1750, 1751 and 1752 of 2011, the C.R.P.No.705 of 2012 is liable to be dismissed. According to me, once the Court grants time to the Decree holder to pay the balance sale consideration, the Judgement Debtor cannot ask for rescission of contract. Therefore, the C.R.P.No.705 of 2012 filed by the Judgement Debtor is dismissed.
10. In the result, the Civil Revision Petition Nos.1750, 1751 and 1752 of 2011 are allowed and the Civil Revision Petition No.705 of 2012 is dismissed. No costs.
22.02.2012 Index :Yes/No Internet:Yes/No kr.
To The Additional District Judge, (Fast Track Court No.II) Additional District Court, Poonamallee.
R.S.RAMANATHAN, J kr C.R.P.(NPD)Nos. 1750 to 1752 of 2011 and 705 of 2012 22.02.2012