Madras High Court
G.S. Chakravarthi Asokar @ G.S. Ashokar vs Therasitta Santhi on 23 January, 2004
Equivalent citations: (2004)1MLJ716
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. Therasitta Santhi, the respondent herein filed the suit for specific performance against the petitioner herein on the basis of the sale agreement dated 21-2-1995. The petitioner did not choose to appear before the Court. So, the suit was decreed ex-parte. Time was granted for payment of the balance sale consideration. Since the petitioner did not agree to receive the amount, the respondent filed execution petition in E.P.No.72 of 1999 after depositing the balance sale consideration. The petitioner filed an application in E.A.No.274 of 2002 in E.P.No.72 of 1999 under Section 28 of the Specific Relief Act, praying for rescission of the agreement dated 21-2-1995. This was contested by the respondent on the ground that the application was barred by limitation and the decree did not specify the period for payment of balance sale consideration. Endorsing this objection, the application filed in E.A.No.274 of 2002 was dismissed by the executing Court. Hence, this civil revision petition.
2. Relevant facts essential to decide the issue, are as follows:-
(a) On 21-2-1995, the petitioner executed an agreement of sale in favour of the respondent for a total sale consideration of Rs.7,95,000/- and on the very same day, the respondent paid an advance of Rs.2 lakhs. Even though the respondent was ready and willing to perform her part of the contract, the petitioner failed to perform his part of the contract. Hence, the respondent herein filed the suit in O.S.No.146 of 1998 seeking for specific performance of the agreement.
(b) Since the petitioner refused to receive the summons, substituted service was effected. The matter was posted on 29-6-1998. On that day, the petitioner/defendant failed to appear and therefore, he was set ex-parte and the suit was decreed on 29-6-1998.
(c) By the said decree, the petitioner/defendant was directed to receive the balance sale consideration of Rs.5,95,600/- on or before 29-7-1998 and to execute the sale deed. After the decree, the respondent herein approached the petitioner with the balance sale consideration and in spite of repeated offers made by the respondent, the petitioner herein deliberately refused to accept the same. Under those circumstances, the respondent herein filed execution petition in E.P.No.72 of 1999. After obtaining necessary lodgement schedule from the Court, the respondent herein deposited the entire balance sale consideration of Rs.5,95,600/- on 28-9-1999.
(d) Notice in the execution petition was served on the petitioner herein on 12-10-1999. The petitioner thereafter filed E.A.No.274 of 2002, seeking for dismissal of the execution petition on the ground that the respondent herein had not complied with the terms of the decree by not paying the balance sale consideration of Rs.5,95,600/- within the time stipulated in the decree, i.e. on 29-7-1998, and therefore, the petitioner herein is entitled to rescind the agreement dated 21-2-1995 under Section 28 of the Specific Relief Act.
(e) The said E.A. was contested, as noted above, by the respondent herein on the ground that the application was barred by limitation and no period was specified for payment of the sale consideration and in any event, the sale consideration was deposited in time. By order dated 11-6-2003, the lower Court dismissed the E.A., accepting the contention urged on behalf of the respondent.
3. Impugned order dated 11-6-2003 is challenged before this Court by the counsel for the petitioner herein, contending that no valid reason has been given to dismiss the application in E.A.No.274 of 2002 and that the lower Court failed to consider the fact that the respondent herein deliberately failed to deposit the balance sale consideration within the reasonable time. Therefore, the Court below ought to have rescinded the agreement executed between the parties herein.
4. To substantiate his plea, learned counsel for the petitioner would cite the decision of the Supreme Court reported in 2002 (3) C.T.C. 111 (Lalit Kumar Jain vs. Jaipur Traders Corporation Pvt. Ltd.) and also the decisions of this Court reported in 1988 (II) M.L.J. 95 (Narasimhan vs. Balammal) and 1988 (1) L.W. 34 (Arthanari Mudaliar, S.P. vs. A.Ponnusami).
5. I have heard learned counsel for both sides and perused the typed set of papers.
6. The decision reported in 2002 (3) C.T.C. 111, would relate to the fact that the defendants deliberately made delayed payment of balance sale consideration and therefore, the defendants were directed to pay the enhanced sale consideration of Rs.35 lakhs to the plaintiff. The facts of that case would not apply to the present case.
7. In 1988 (1) L.W. 34, this Court dealt with a case where the impugned order permitting the plaintiff to deposit the balance of sale consideration on a fixed date, would not contain any reason and the lower Court has passed one line order, which is non-speaking one, and therefore, the said order was set aside. That is not the case here.
8. In 1988 (II) M.L.J. 95, this Court would deal with a case where the readiness and willingness on the part of the purchaser was not established. In the case on hand, as pointed out by the lower Court, the readiness and willingness was established by the plaintiff, the respondent herein.
9. Learned counsel for the respondent-caveator would cite 1996 (3) A.L.T. 818 (B.Sambasiva Reddy vs. Kayagurla Kondanna), wherein the Andhra Pradesh High Court dealt with similar position on the strength of the decision of the Supreme Court (Kerala State Electricity Board vs. T.P.Kunhaliumma).
10. Admittedly, till the impugned order was passed, there were no steps taken by the defendant, the petitioner herein to set aside the ex-parte decree. The ex-parte decree was passed on 29-6-1998. There is no denial of the fact that the petitioner was aware of the pendency of the suit for specific performance against him. As a matter of fact, in the affidavit filed by the petitioner in E.A.No.274 of 2002 in E.P.No.72 of 1999 before the lower Court, the petitioner herein stated in paragraph 3 that the suit ended in ex-parte decree, since at the relevant time, he was undergoing stress and strain on account of financial crunch. Thus, it is clear that pendency of the suit and also the ex-parte decree passed on 29-6-1998 was known to the petitioner herein.
11. As held in , an application for recission of contract has to be filed within three years from the date when the right to apply for recission accrues.
12. Further, according to the respondent-plaintiff, in the application in E.P.No.72 of 1999 filed on 8-9-1999, it is stated that she approached the petitioner herein with the balance sale consideration and that several times, the petitioner-defendant deliberately refused to accept the same. This is not specifically denied by the petitioner herein before the lower Court.
13. Yet another aspect of the matter is worth mentioning. The respondent deposited the entire balance sale consideration of Rs.5,95,600/- on 28-9-1999 and the lodgement schedule was obtained from the lower Court. In E.P.No.72 of 1999, notice was issued and the same was served on the petitioner on 12-10-1999. Despite service of notice, the petitioner did not take any steps to file an application under Section 28 of the Specific Relief Act to rescind the contract. On the other hand, the petitioner's brother, one G.S.Jesa, on 6-8-2001, nearly after two years, filed E.A.No.375 of 2001 seeking for dismissal of E.P.No.72 of 1999 filed by the respondent herein on the ground that the property sought to be sold by the petitioner herein, was a joint family property, and as such, E.P.No.72 of 1999 is to be dismissed. It would be relevant to state that the petitioner herein filed counter in the said E.A.No.375 of 2001, supporting the claim of his brother G.S.Jesa. The lower Court dismissed the said application on 17-6-2002. This order has not been challenged.
14. Having failed in his attempt through his brother in getting the execution petition dismissed, the petitioner has filed application in E.A.No.274 of 2002 under Section 28 of the Specific Relief Act, on the ground that the respondent has not complied with the terms of the decree by not paying the balance sale consideration within the stipulated time and as such, he is entitled to rescind the agreement dated 21-2-1995.
15. It is not denied that the entire sale consideration was paid on 28-9-1999 itself, after obtaining necessary lodgement schedule from the lower Court. Only thereafter, notice was issued in E.P.No.72 of 1999 and the same was served on 12-10-1999. According to the respondent, issuance of lodgement schedule itself was in pursuance of the filing of the execution petition before the Sub-Court, Tuticorin, who exercises both original and execution jurisdiction and permitting the respondent to deposit the balance sale consideration, is an extension of time granted in the decree dated 29-6-1998.
16. It is also not denied that under the Limitation Act, the application for rescission of contract/agreement must be filed within the period of limitation of three years. It is not disputed that the petitioner herein has filed an application in E.A.No.274 of 2002 only on 7-11-2002, beyond the date when the alleged cause of action has arisen i.e. more than three years.
17. Therefore, the civil revision petition is liable to be dismissed, as in my view, the application in E.A.No.274 of 2002 was not maintainable under Section 28 of the Specific Relief Act, since it was barred by limitation and also not sustainable on merits. The civil revision petition is accordingly dismissed. No costs. Consequently, C.M.P.No.19585 of 2003 is also dismissed.