Andhra HC (Pre-Telangana)
Rajender Pershad And Ors. vs Raja Ratan Gopal (Died) By Lrs. on 8 September, 2004
Equivalent citations: 2005(1)ALD218
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
ORDER B. Seshasayana Reddy, J.
1. Aggrieved by the order dated 27-8-2002 passed in LA .No. 1182 of 2000 in O.S. No. 544 of 1975 on the file of II Senior Civil Judge, Hyderabad, the plaintiffs have filed this civil revision petition under Section 115 of the Code of Civil Procedure.
2. The petitioners are plaintiffs and the respondents are defendants in O.S. No. 544 of 1975. They filed the suit for specific performance of agreement of sale dated 28.1.1974. The defendants filed written statement resisting the claim of the plaintiffs. The suit of the plaintiffs came to be dismissed on 26.12.1978. They preferred an appeal in CCCA No. 49 of 1979 and the said appeal came to be allowed decreeing the suit of the plaintiffs by judgment dated 9.9.1986. The plaintiffs were required to pay the balance sale consideration of Rs. 57,300/- with interest at 6% from 28.8.1974 within two months from the date of judgment and in the event of non-depositing of the amount within the stipulated period the appeal stands dismissed with costs. The defendants unsuccessfully filed LPA.No.239/86. A Division Bench of this Court confirmed the judgment and decree passed in the appeal. The defendants filed SLP.No.2486/96 and subsequently withdrew the same on 10.1.1997. The plaintiffs issued a notice dated 10.10.1986 directing the defendants to execute sale deed within ten days from the date of service of the notice as per the judgment dated 9.9.1986 passed in the appeal. Since the defendants failed to execute the registered sale deed in terms of the decree granted in the appeal, the plaintiffs filed E.P. No. 81/99 on 24.9.1999. The defendants filed objections in the E.P. The plaintiffs submitted their reply to the objections of the defendants. Latter, the defendants filed I.A. No. 1182 of 2000 in O.S. No. 544 of 1975 for recession of the contract under Section 28(1) of Specific Relief Act (for short Act). Dl has given his sworn affidavit in support of the application. It is averred in the affidavit that since the amount was not deposited as per the judgment and decree in the appeal within the stipulated time, the suit of the plaintiffs shall stand dismissed. The plaintiffs filed counter-affidavit resisting the application of the defendants. The plaintiffs took the plea that they deposited the amounts to the credit of the suit through a Challan No. 434 dated 19.9.1986 in State Bank of Hyderabad, Gunfoundry Branch, Hyderabad. It is averred in the counter- affidavit that the amount deposited by them has been invested in fixed deposit in Canara Bank, Patthargatti Branch, Hyderabad.
3. On behalf of the defendants, as many as six documents were marked and on behalf of the plaintiffs, as many as 24 documents were marked besides marking confirmation letter from DTO as Ex.Cl. Neither party adduced oral evidence in support of their respective assertions. The learned Senior Civil Judge framed the following points for consideration:
(a) Whether the respondents/D.Hrs have deposited the amount within the stipulated time of two months as per the orders of the Hon'ble High Court of A.P. in CCCA No. 49/79 dated 9.9.1986?
(b) Whether the petitioners/defendants are entitled for recession of the contract of agreement of sale dated 28.1.1974?
(c) Whether the petition is barred by limitation?
On considering the material brought on record and on hearing Counsel for the parties, the learned Senior Civil Judge recorded a finding that the plaintiffs/decree holders failed to submit the challan in the Court for eleven long years and therefore it cannot be said that the plaintiffs/decree holders made deposits within two months as directed by the High Court. A further finding has also been recorded that the application filed by the defendants/judgment-debtors for recession of the contract under Section 28(1) of the Act is within time. With the above findings, the learned Senior Civil Judge allowed the application filed by the defendants declaring that the contract of agreement dated 28.1.1974 is rescinded, by the order dated 27.8.2002. Assailing the order, the plaintiffs/decree holders have filed this civil revision petition.
4. Learned Counsel for the petitioners/ plaintiffs submits that the Trial Court has not correctly appreciated the facts in issue and thereby erred in recording a finding that the application filed by the respondents/defendants under Section 28(1) of the Act is within time. His further submission is that the respondents/defendants as per their own case knew of non- availability of the amount to the credit of the suit in the year 1986 and in such a case, the application filed by them under Section 28(1) of the Act for recession of contract is hopelessly barred by limitation. In support of his submission, he refers to Paras 6 and 7 of the affidavit of JDR No.l filed in support of LA. No.l 182/2000.
5. Learned Counsel appearing for the respondents/JDRs submits that the cause of action for filing an application under Section 28(1) of the Act has arisen as on the date of filing of the E.P. by the petitioners decree holders in the year 1999 and therefore the application filed by them for recession of contract as on 14.8.2000 is within limitation. He placed reliance on the decisions of Supreme Court in V.S. Palanichamy Chettiar Firm v. C. Alagappan, , Ramankutty Guptan v. Avara, , CCE v. Alnoori Tobacco Products, , (2004) 6 SCC 186 and Ramti Devi v. Union of India, . In V.S. Palanichamy Chettiar Firm v. C. Alagappan's Case, the Supreme Court held as follows:(1999)9 SCC 702 "Provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play. Court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the Court as a matter of course allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the Trial Court and 3 years of its confirmation by the Appellate Court? It is not the case of the respondent-decree holder that on account of any fault on the part of the vendor- judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going "beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the decree-holder-respondents as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the decree holder- respondents and no extension of time be granted to them to comply with the decree."
The above referred decision relates to extension of time for depositing the amount by the decree holders. Therefore, the cited decision has no application to the facts of the case on hand. In Ramankutty Guptan v. Avara's case, it has been held by the Apex Court that though application must be filed on the original side, but execution being in the same Court in which original suit was filed, application should be treated as being on the original side. In CCE v. Alnoori Tobacco Products's case, the Apex Court held as follows:
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark on lengthy discussions but the discussion is meant to explain and not to define, Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."
In Ramti Devi v. Union of India's case it is held by the Apex Court that limitation under Article 59 of the Limitation Act, 1963 begins to run when the plaintiff entitles to have the instrument of decree cancelled or set aside or when the contract rescinded first became known to him.
6. The point for determination in this revision is whether the application filed by the judgment debtors under Section 28(1) of the Act is within limitation?
7. Under Section 28 of the Act, after a decree for specific performance of the contract for a sale of immovable property has been made and the purchaser/ decree holder does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money when the Court has ordered him to pay, the vendor judgment- debtor may apply in the same suit in which the decree is made to have the contract rescinded. Section 28 of the Act reads as follows:
Section 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 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 the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decrees 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.
(2) Where a contract is rescinded under sub- section (1), the Court-
(A) shall direct the purchaser or lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (B) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser of lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely-
(A) the execution of a proper conveyance or lease by the vendor or lessor;
(B) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the Court."
8. Few dates are relevant to decide whether the application filed by the judgment- debtors under Section 28(1) of the Act is within time or not. The suit filed by the plaintiffs ended in dismissal on 26.12.1978. The plaintiffs carried the matter in appeal and the said appeal came to be allowed on 9.9.1986 granting decree for specific performance. The decree granted in CCCA No. 49/79 reads as follows:
"(1) That the decree of the Court of II Additional Judge, City Civil Court, Hyderabad, dated 26.12.1978, and passed in OS No. 544 of 1975, be and hereby is set- aside and this appeal allowed.
(2) That the appellants herein (plaintiffs) do pay to the respondent (defendant) the balance of sale consideration of Rs. 57,300/- together with interest at the rate of 6% per annum from 28.8.1974, the last date of performance of the contract, till the date of decree (Appellate Court decree) within two months from the date of this order.
(3) That in default of the defendant to execute the Sale deed on deposit of the above said amount in clause (2) supra, by the plaintiffs, the Trial Court, shall be at liberty, to execute the sale deed on behalf of the defendant.
(4) That the default of the plaintiffs, appellants hereby deposit the said amount as mentioned in clause (2) supra within the time stipulated above, this appeal shall stand dismissed with costs and;
(5) That there will be no order as to costs of this appeal."
The LPA filed by the defendants came to be dismissed on 21.8.1996. They unsuccessfully filed SLP, which came to be dismissed on 10.1.1997. It is the case of the respondents/judgment-debtors that the petitioners/decree holders did not pay the balance sale consideration of Rs. 57,300/- together with interest @ 6% within the stipulated time and therefore they are entitled to seek recession of the contract. It is no more in dispute that the period of limitation prescribed for filing the petition for recession of contract is three years from the date when the right to apply for recession accrues vide decision of our High Court in K. Venkateswara Rao and another v. M. Venkateswara Rao and others, . It is the contention of the Counsel for the respondents/judgment- debtors that the date of filing of E.P. is to be taken as the date from which right to apply for recession accrues. Whereas it is the contention of the learned Counsel for the petitioners/decree holders that the cause of action accrues to the respondents/ judgment-debtors to seek recession of contract soon after the expiry of the period stipulated in the decree for depositing of balance sale consideration and as the said period has been expired as on 9.11.1986 and as the application by the respondents/ judgment-debtors has been filed on 14.8.2000, the same is hopelessly barred by limitation. At this juncture, I may refer Article 137 of the Limitation Act, 1963 which reads as under:
137. Any other application for Three When the right to which no period of limitation years apply accrues. is provided elsewhere in this Division.
The petitioners decree holders were required to deposit the balance sale consideration within two months from the date of decree granted in CCCA.No.49/79. The date of the decree being 9,9.1986, the outer limit for depositing the balance consideration was 9.11.1986. Indeed the petitioners/decree holders issued a notice on 10.10.1986 to the judgment-debtors while marking copies to their Counsel informing them of their depositing the amount of Rs. 57,500/- together with interest @ 6 % to the credit of suit. The respondents/judgment-debtors disputed the factum of depositing the amounts by the petitioners/DHRs within the period allowed to them in the decree granted in appeal. It is suffice to say that the respondents/ judgment-debtors, as per their own admission, knew of the non-availability of the amount to the credit of O.S. No. 544/75 in the year 1996 itself. I deem it appropriate to refer the affidavit filed by the judgment debtor No.l in support of their application for recession of the contract. Paras 6 and 7 of the affidavit reads as follows:
"6. After the 3 months of disposal of LPA No. 239/1986 the petitioner/defendant verified in the lower Court as well as in the High Court as to whether any amount was deposited to the credit of suit O.S. No. 544/75 on the file of II Additional Judge, City Civil Court, Hyderabad, or in the Hon'ble High Court in CCCA No. 49/ 1979, the petitioner, respondent got the endorsement of the City Civil Court, Hyderabad, as well as a Certificate (both are filed herewith).
7. That Mr. Rajeev Indani, advocate upon the instruction of respondent/plaintiff had issued a legal notice to the appellant i.e., the petitioner/respondent herein dated 10th October, 1986 with a copy to the then Advocate i.e. Late M.L. Ramakrishna Rao, Counsel for respondents/defendants in CCCA No. 49/79 stating specifically in Para 2 of the notice as under:
"That as per orders of the Honourable High Court of A.P., passed in CCCA No. 49 of 1979, dated 9.9.1986, our clients have already deposited the amount to the credit of O.S. No. 544/75, amount of Rs. 57,500/- together with interest @ 6 % p.a. from 28.8.1974".
After the disposal of LPA No. 239/86, when the petitioner/respondent verified in the suit O.S. No. 544/1975 on this Honourable Court as stated by Counsel for respondent/ plaintiff that as to whether any amount was is deposited to the credit of the above suit. But on verification it was found that there was no amount of deposit either to the credit of the above suit, as stated in the notice by Rajeev Indani, Advocate for respondent/plaintiff, nor there was any proof of deposit shown in the Honourable High Court Decree i.e., CCCA No. 49/1979."
9. The affidavit filed in support of the application for recession of contract gave no room for doubt that the respondents/ judgment-debtors knew of non-depositing of the amount to the credit of the suit in O.S. No. 544/75 within three months of the disposal of LPA No. 239/86. The date of disposal of LPA is 21.8.1996. Within three months of the disposal of the LPA would be on or before 21.11.1996. Therefore, the respondents/judgment-debtors knew of non-availability of the amounts to the credit of the suit before 21.11.1996. The cause of action has accrued to them as on 21.11.1996 for filing petition under 28(1) of the Act. The period of limitation as provided under Article 137 of the Limitation Act, 1964 is three years. Since the respondents/judgment- debtors filed the application on 4.8.2000, the same is hopelessly barred by limitation. The Trial Court having cited the decision of K. Venkateswara Rao and another v. M. Venkateswara Rao and others, , failed to apply the proposition of law laid down therein and thereby erred in holding that the application filed by the judgment-debtors is not barred by limitation. When once the application filed by the judgment-debtors is barred by limitation, the other issue whether the petitioners/decree holders deposited the amount on 19.9.1986 does not survive so far the application filed under Section 28(1) of the Act. The judgment debtors are at liberty to file their objections, if not already filed, in the E.P. resisting the execution of the decree. In the event of the respondents/ JDRs filing objections in E.P., the executing Court shall dispose of the same uninfluenced by the findings recorded in the impugned order.
10. In the result, this civil revision petition is allowed setting aside the order dated 27-8-2002 passed in LA. No. 1182 of 2000 in OS No. 544 of 1975 on the file of II Senior Civil Judge, Hyderabad and consequently IA No. 1182 of 2000 stands dismissed.