Karnataka High Court
Sri Susheel Kumar Jain vs Sri Kuppaswamy Naidu on 26 May, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
WP No. 52750 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 52750 OF 2014 (GM-CPC)
BETWEEN:
SRI SUSHEEL KUMAR JAIN
S/O DHARMACHAND JAIN,
AGED ABOUT 54 YEARS,
R/AT MAMAMURTHY NAGAR,
DODAVANINAGAR POST,
BANGALORE-560 016.
...PETITIONER
(BY SRI. M SHIVAPRAKASH.,ADVOCATE)
AND:
SRI KUPPASWAMY NAIDU
SINCE DEAD BY HIS LRS
1. SRI.RAMESH,
S/O KUPPASWAMY NAIDU,
AGED ABOUT 53 YEARS,
Digitally signed 2. SRI MOHAN KUMAR
by VANDANA S S/O KUPPASWAMY NAIDU,
Location: High AGED ABOUT 53 YEARS,
Court of
Karnataka 3. SRI MURALI BABU
S/O KUPPASWAMY NAIDU,
AGED ABOUT 53 YEARS.
ALL ARE RESIDING AT NO. 121
K.K. SWAMY BUILDING,
RAMAMURTHY NAGAR POST
BANGALORE - 560 016.
4. SMT.VEDAVATHI W/O VARADARAJAN,
AGED ABOUT 50 YEARS,
R/AT NO.2813, 12TH MAIN ROAD,
-2-
WP No. 52750 of 2014
D BLOCK, 2ND STAGE, RAJAJINAGAR,
BANGALORE-560 010.
5. SMT.USHA W/O SWAMINATHAN,
AGED ABOUT 57 YEARS,
R/AT NO.45, GOWRINILAYA,
2ND CROSS, NGES LAYOUT,
(NAGARBAVI 80' ROAD),
OPP TO VINAYAKA EXTENSION,
BANGALORE-560 072.
6. SMT.NAVANEETHAMMAL
(SINCE DEAD (27.06.2015) BY HER LR'S.
7. C. RAJAGOPAL
H/O LATE NAVANEETHAMMAL
AGED ABOUT 80 YEARS.
8. R. SATHISH KUMAR
S/O LATE NAVANEETHAMMAL
AGED ABOUT 40 YEARS.
ALL ARE RESIDING AT NO. 780/M
NORTH AVENUE, TNHB COLONY
KORATTR, CHENNAI - 600 080.
...RESPONDENTS
(BY SRI. SREEVATSA, SENIOR COUNSEL FOR
SMT. UDITA RAMESH, ADVOCATE FOR R-1 TO R-6 ( A TO C) )
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS
IN O.S.NO.7019/1995 ON THE FILE OF XVII ADDITIONAL CITY CIVIL
JUDGE AT BANGALORE AN IN EX.NO.1646/2011 ON THE FILE OF XVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE.QUASH
THE ORDER PASSED ON I.A.NO.5 AND 6/2014 IN EX.NO.1646/2011
DTD.14.10.2014 AT ANNEXS-L ON THE FILE OF XVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AT BANGALORE CONSEQUENTLY TO
DISMISS THE APPLICATIONS IN I.A.NOS. 5 & 6 FILED BY THE
RESPONDENTS WITH EXEMPLARY COSTS.
-3-
WP No. 52750 of 2014
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the Decree holder in Ex.No.1646/2011 is directed against the impugned common order dated 14.10.2014 passed on I.A.Nos.5 to 7 by the XVII Addl.City Civil and Sessions Judge, Bangalore, whereby the applications I..A.Nos. 5 and 6 filed by the respondents - Judgment Debtors were allowed and I.A.No.7 filed by the Judgment Debtors was disposed of as the same does not survive for consideration.
2. Heard learned counsel for the petitioner and learned Senior counsel for the respondents and perused the material on record.
3. The material on record discloses that subsequent to the impugned order having been challenged by the Decree holder in the present petition, in RFA No.260/2007 preferred by the L.Rs. of defendants 1 and 2 and the same came to be dismissed on 22.02.2011, was put into execution in the instant execution proceedings. However, subsequently, the Hon'ble Division Bench -4- WP No. 52750 of 2014 of this Court passed the order dated 18.02.2021 in the aforesaid RFA No.260/2007, which reads as under:-
ORDER ON I.A.NO.1/2020The above interlocutory application is filed by the applicant/plaintiff with a prayer for extension/enlargement of time for payment of interest (already deposited dated 03.09.2012) in the interest of justice and equity.
2. The respondent in the above appeal was the plaintiff before the court below. The appellants were the defendants before the court below. The applicant/plaintiff filed a suit in O.S.No.7019/1995 to direct defendant nos.1 and 2 to execute the sale deed in his favour in respect of the plaint schedule property along with vacant possession and to restrain the defendants from creating any encumbrance on the plaint schedule property and also to restrain the defendants or their agents either from interfering with the plaintiff's lawful possession of the plaint schedule property or dismantling the same.
3. The trial court decreed the suit on 23.12.2006 directing the LRs. of defendant Nos.1 and 2 to execute the sale deed in favour of the plaintiff within one month from the date of judgment and further directing the plaintiff to deposit the balance sale consideration of Rs.3,60,000/- with interest @ 8% per annum from 30.05.1994 till realization within a period of 15 days -5- WP No. 52750 of 2014 from the date of the judgment. Aggrieved by the said judgment and decree, the respondents/defendants preferred an appeal before this Court in RFA No.260/2007. The applicant/plaintiff assailed the judgment and decree of the trial court insofar as it related to imposition of interest @ 8% per annum on the balance sale consideration by way of RFA.CROB.9/2007.
4. In the meanwhile, the applicant/plaintiff deposited the balance sale consideration of Rs.3,60,000/- on 04.01.2007.
5. The appeal filed by the respondents/defendants and the cross objections filed by the applicant/plaintiff were both dismissed by this Court on 22.02.2011.
6. Thereafter, the applicant/plaintiff preferred Execution Case No.1646/2011 and also deposited the amount due towards interest before the court below.
7. It is submitted by the applicant/plaintiff that he has deposited the said amount on 04.09.2012 but erroneously it is shown as 03.09.2012 in his application seeking enlargement of time. However, the Execution Court in its orders on I.A.Nos.5 to 7 dated 14.10.2014 records that the amount was deposited on 20.09.2012.
8. It is noticed that there was no interim order for stay granted in RFA No.260/2007 c/w RFA.CROB.9/2007 by this Court on the operation of the -6- WP No. 52750 of 2014 judgment and decree dated 23.12.2006 passed by the trial court in O.S.No.7019/1995. Nevertheless, it is submitted by the learned counsel for the applicant/plaintiff that he had made an oral submission to the Court that he would not precipitate the matter by filing an execution petition and accordingly, no order was passed regarding stay of the judgment and decree in O.S.No.7019/1995 and he has filed the execution petition only after dismissal of this appeal and RFA.CROB No.9/2007. As RFA.CROB.9/2007 filed by the applicant/plaintiff wherein he had challenged imposition of interest @ 8% per annum upon the balance sale consideration was also dismissed, he has deposited the amount towards interest immediately after filing the execution petition and thereby he has complied with all the conditions of the judgment and decree passed in O.S.No.7019/1995.
9. Though the execution petition was filed in the year 2011, the judgment debtors appeared before the Execution Court much later after the decree holder depositing the amount towards interest and they preferred I.A.Nos.5 to 7 wherein they have contended that the decree holder therein had committed default in complying with the conditions imposed by the trial court in O.S.No.7019/1995 by not depositing the amount towards interest within fifteen days from the date of the judgment and decree and thereby prayed for cancellation of the sale agreement which was sought to be specifically enforced by way of O.S.No.7019/1995. I.A.No.5 and 6 were allowed and -7- WP No. 52750 of 2014 I.A.No.7 was disposed of, by the court below vide order dated 14.10.2014 wherein, the agreement of sale dated 24.01.1994 was rescinded and cancelled thereby permitting the judgment debtors therein to deposit a sum of Rs.2,40,000/- received by them towards sale consideration, within fifteen days to the court below.
The decree holder therein who is the plaintiff/applicant herein submitted that he has challenged the said order by way of a writ petition and an interim order is passed staying the operation of the same.
10. Under the above circumstances, the present application in RFA No.260/2007 c/w RFA.Crob.No.9/2007 is filed under Sections 148 and 151 of the CPC wherein the applicant/plaintiff has prayed for enlargement of time for payment of interest which has already been deposited.
11. It is contended by the applicant/plaintiff that as he had given an oral undertaking before this Court that he would not precipitate the matter, an interim order staying the execution of the judgment and decree of the trial court in O.S.No.7019/1995 was not passed by this Court. It is further contended that he had deposited the balance sale consideration of Rs.3,60,000/- within time as per the directions issued in O.S.No.7019/1995. However, as he had challenged the award of interest @ 8% per annum, he had not deposited the interest amount. As cross objections filed by the applicant/plaintiff were also dismissed, he has deposited the amount towards interest before the -8- WP No. 52750 of 2014 defendants/judgment debtors appeared in the execution petition. It is contended that the delay was a bona fide mistake. It is further stated that he was not keeping in good health which also resulted in committing the said mistake. For the said reasons, the applicant/plaintiff contends that the application be allowed and time be enlarged till 20.09.2012 so that it results in compliance of the said judgment and decree passed in O.S.No.7019/1995.
12. The applicant/plaintiff has relied on the following judgments in support of his contentions:
1. K.Kalpana Saraswathi v. P.S.S.Somasundaram Chettiar [AIR 1980 SC 512]
2. Sardar Mohar Singh v. Mangilal [(1997)9 SCC 217]
3. Chithambaran Ponnappan v. Viswambaran and Another [AIR 2001 KERALA 205]
4. S.Jahanara v. C.Nazeer Ahumed [LAWS (KAR) 2007 7 85]
13. Based on the said judgments, the applicant/plaintiff has contended that the delay in deposit of the amount in respect of interest was for bona fide reasons. It has been deposited immediately after filing of the execution petition. It has been deposited even before the respondents/ defendants made an application for rescinding and cancellation of the agreement of sale. That the applicant/plaintiff is ready and willing to abide by such conditions this Court may impose based on equity. That the trial court and this Court had found the case to be appropriate for -9- WP No. 52750 of 2014 granting a relief of specific performance of the contract. That the applicant/plaintiff had deposited the balance sale consideration immediately as per the judgment and decree passed in the suit in O.S.No.7019/1995. If the respondents/defendants were to be permitted to rescind and cancel the agreement of sale because of the delay in depositing the interest amount by the plaintiff, it would result in injustice to the applicant/plaintiff. On the said grounds, the applicant/plaintiff prays for allowing I.A.No.1/2020.
14. Per contra, the respondents/defendants object for such extension of time. They contend that they are entitled to rescind the contract as there was no compliance on part of the applicant/plaintiff as per the directions issued in O.S.No.7019/1995. They further contend that the plaintiff has deposited the amount towards interest without taking due permission from the court after a lapse of more than five years from the date of the said judgment. As the plaintiff committed default in payment of the said amount as per the direction of the trial court, the appellants are entitled to rescind and cancel the sale agreement dated 24.01.1994. That the Execution Court has allowed their applications and rescinded and cancelled the sale agreement dated 24.01.1994 and permitted the judgment debtors to deposit a sum of Rs.2,40,000/-, within fifteen days to the Court. It is contended that the default on the part of the plaintiff is deliberate and he is not entitled to extension of time as prayed and on the said ground, they have sought for dismissal of the
- 10 -
WP No. 52750 of 2014application-I.A.No.1/2020. In this context, the respondents/defendants relied on the following judgments:
a) P.R.Yelumalai v. N.M.Ravi [(2015)9 SCC 52]
b) Bhupinder Kumar v. Angrej Singh [(2009)8 SCC 766]
c) Sri Veerappa and another v. Basavanyappa S/o Aralimarad Basappa Dead by Lrs. - W.P.Nos.11534- 11535/2012 (DD 22.08.2014) passed by this Court
d) T.L.Rajagopal v. S.N.Shivakumar [2014(3) KCCR 2182] Based on the said decisions, the respondents/defendants has prayed for dismissal of the above application.
15. We have heard the learned counsel for the parties and perused the material on record.
16. It is apt to refer to the following judgments referred to by the learned counsel for the parties:
1. In K.Kalpana Saraswathi supra, paragraphs 4, 5 and 7 read as under:
"4. It is perfectly open to the court in control of a suit for specific performance to extend the time for deposit, and this court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour. The disentitling circumstances relied upon by the defendant - respondent are off-set by the false pleas raised in the course of the suit by him and rightly negatived. Nor we are convinced that the application for consideration and extension of time cannot be read,
- 11 -WP No. 52750 of 2014
as in substance it is, as a petition for more time to deposit. Even so, specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief. The final end of law is justice, and so the means to it too should be informed by equity. That is why he who seeks equity shall do equity. Here, the assignment of the mortgage is not a guideless discharge of the vendor's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation misfires. To sterilise this decree is necessary equity to which the appellant must submit herself before she can enjoy the fruits of specific performance.
5. In the present case, with all that has been said by both sides - and we have heard at great length arguments by Shri Abdul Karim for the appellant and Shri.A.K.Sen and Smt. Syamala Pappu for the respondents it is clear that an opportunity for the appellant to deposit into court the amount directed by the trial court, together with interest down to date at 11 percent. Should be accorded. We are not discussing the principles of law as they are well settled and do not require reiteration. The equitable terms we have adverted to earlier must be remembered in this context. The appellant who was bound to discharge the mortgage acted contrary to the agreement because, instead of paying the mortgage money and extinguishing the mortgage (which was, perhaps, a pardonable exercise, in lieu of deposit into court) she, under some ill-advise took
- 12 -WP No. 52750 of 2014
an assignment of the equitable mortgage with a view to using it against the respondent. Surely, this was not consistent with the understanding assumed under the contract. This justifies the view of the High Court that as a price for the indulgence of being allowed to deposit long after the due date was over the unrighteous advantage gained by taking an assignment of the mortgage should be nullified. In brief, while the appellant may be allowed to deposit the amount due under the agreement, viz., Rupees 3,45,000 together with interest at 11 per cent. from April 1967 up to date, the mortgage decree in her favour must be extinguished, save to the extent of the cash then paid. The High Court expressed a slightly drastic though similar view, somewhat loosely, thus:
After we have expressed our opinion and dictated this order, the learned counsel for the plaintiff orally requests us to permit the plaintiff to deposit the entire amount as directed by the learned trial Judge in the Court. Having regard to the fact that no such stand was taken at any earlier stage and this request has been orally made only after we have dictated this order, we do not see any justification whatever for complying with this request. We may also point out that there is no actual undertaking given by the plaintiff herself that even if we give such an opportunity to the plaintiff to deposit the sum of Rs.3,45,000/- into this Court now, she will give up her right under the mortgage decree, which she has obtained against the defendant in the present suit in O.S.No.154 of 1958.
- 13 -WP No. 52750 of 2014
7. We direct that a decree be passed that the plaintiff-appellant do deposit within six months from today the entire sum of Rs.3,45,000 together with interest due up to date at the rate of 11 per cent. Together with an undertaking that she would give up all her rights under the mortgage decree passed in her favour in O.S.No.154 of 1968, except to the extent of the amount actually paid to the South Indian Bank for taking the assignment. If these two conditions are fulfilled, the appeal will stand allowed and a final decree for specific performance passed. In the event of non-compliance with either of these conditions the appeal will stand dismissed with costs."
2. In Sardar Mohar Singh supra, paragraph 4 reads as under:
"4. From the language of sub-section (1) of Section 28, it could be seen 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. It would also be clear that the court has power to emlarge 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. In other words, the court has the discretion to extend time for compliance of the
- 14 -WP No. 52750 of 2014
conditional decree as mentioned in the decree for specific performance. It is true that the respondent has not given satisfactory explanation of every day's delay. It is not, unlike Section 5 of the Limitation Act, an application for condonation of delay. It is one for extension of time. Under these circumstances, the executing court as well as the High Court had exercised discretion and extended the time to comply with the conditional decree. Accordingly, we do not find any valid and justifiable reason to interfere with the order passed by the High Court confirming the order of the executing court when in particular, the High Court has further enhanced a sum of Rs.16,000 to compensate the petitioner for loss of enjoyment of the money. The said amount is given to the respondent in a sum of Rs.16,000 rightly for the reason that parties contracted for non-performance of the contract. They quantified the damages at Rs.2000 for 8 years. The Court has given Rs.16,000 obviously in terms of the contract."
3. In Chithambaran Ponnappan supra, paragraphs 4, 5 and 6 read as under:
"4. In the instant case, the justification given by the plaintiff for not making the deposit in time was the fact that the defendant himself took up the matter in appeal and on the dismissal of the appeal on 15.10.1992 even a second appeal was filed which was dismissed only on 15.02.1996. Thus, here is a case where the decree was not executable at least till 15.02.1996. Where there is failure on the part of the decree-holder to deposit the purchase price or where there is failure to deposit other sums to comply with the terms of the decree, the judgment-debtor is not
- 15 -WP No. 52750 of 2014
without any remedy. He has got a right, under Section 28 of the Specific Relief Act, to seek rescission of the contract. In the instant case, the revision petitioner has not resorted to the said power and as such the decree continues to be enforceable. Then what remains is whether the Court was justified in allowing extension of time.
5. The contention of the revision-petitioner, that the Court has no power to extend the time, has to fail in view of the specific mention in Section 28 of the Act itself, that the power to rescind the decree would arise where there is failure on the part of the purchaser or lessee to pay the purchase money or other sum due under the decree "within the period allowed by the decree or such further period as the Court may allow."
The power to extend the time is thus inbuilt in Section 28 itself, and as such the revision petitioner cannot be heard to contend that there is no power on the part of the Court to extend the time.
6. What remains to be considered is whether a written application is necessary for extension of time. Here is a case where, even in the decree the Court below allowed the decree-holder time to make the deposit. Mere failure on the part of the decree-holder to deposit the amount does not render the decree ineffective or release the judgment-debtor from the decree ineffective or release the judgment-debtor from his liability to satisfy the decree. It is only when there is willful default on the part of the decree-holder to make the deposit, that the Court would be justified in refusing extension of time. There is no such wilful default evident in the present case and as such the
- 16 -
WP No. 52750 of 2014Court below has the authority and power under Section 148 of the CPC to extend the time and to proceed with the execution albeit the deposit was belated. That there exists power on the part of the execution Court to extend the time even without application is clear from the decision in K. Kalpana Saraswathi v. P.S.S.S.Chettiar (AIR 1980 SC 512) also."
4. In S.Jahanara supra, paragraphs 20 and 21 read as under:
"20. IT is clear on facts that the suit for specific performance of contract of the petitioner-plaintiff came to be decreed against the respondent-defendant and despite that, the petitioner-plaintiff had not deposited the balance of the sale consideration as directed by the trial Court but instead of doing that he went on seeking extension of time by filing three i. As.- 1. A. Nos. 25 to 27 successively without pursuing the relief of grant of extension of time to deposit the balance of sale consideration of Rs.3,50,000/-.
21. THAT the respondent-defendant in the meantime had challenged the decree granted by the trial Court before this Court in R.F.A. 454/1991 and this Court dismissed the said r.F.A. on 28.07.2000 by confirming the judgment of the trial Court decreeing the suit of the petitioner-plaintiff; as such in my considered view, there was no decree in the suit for the respondent- defendant to recourse to I.A.No.28 before the trial Court since decree in suit had merged with the decree in R.F.A. referred to above under Sec.28(1) of the Specific Relief Act, 1963. as if the decree passed in favour of the petitioner-plaintiff was not subsisting and
- 17 -WP No. 52750 of 2014
as such, question of respondents-defendants to recourse to Sec.28(1) of specific Relief Act before the trial Court did not arise at all. That being so, in my further considered view the trial Court did not get the jurisdiction to pass the impugned order under Sec.28(1) of the Specific Relief Act as it did in allowing I.A.No.28. In that view of the matter, the trial Court had committed error in law in passing the impugned order in allowing I.A.No.28 of the respondents- defendants. Therefore, the same is liable to be set aside."
a) In P.R.Yelumalai supra, paragraphs 12, 14 and 15 read as under:
"12. Arguments were also made by the learned counsel on both sides as to which court had the power to grant extension of time and several authorities were cited on this point. However, we find that after the executing court had dismissed the execution proceeding on the ground of delay in depositing the amount, the same question was dealt with by the original side of the trial court as well in the application for extension of time. Since both the courts have given concurrent findings that the case for extension of time was not made out, we are of the opinion that dealing with the question as to which court had the jurisdiction to decide this point, will be an exercise in futility. It would suffice to say that the court has the discretion to extend the time upon an application made by the party required to act within a stipulated time period. Extension of time can be granted even after the expiry of the period originally fixed. In Johri Singh v. Sukh Pal Singh [(1989)4 SCC 403] this Court observed: (SCC p.415, para 18)
- 18 -WP No. 52750 of 2014
"18. This section empowers the court to extend the time fixed by it even after the expiry of the period originally fixed. It by implication allows the court to enlarge the time before the time originally fixed. The use of the word 'may' shows that the power is discretionary, and the court is, therefore, entitled to take into account the conduct of the party praying for such extension."
14. The trial court rightly held that the decree- holder did not make the deposit within the time stipulated by the court nor the deposit of the balance consideration was made through the mode as stipulated by the court, and that being the case, the suit will have to be deemed as dismissed. The trial court further held that the decree-holder is not entitled to seek execution of decree, which does not exist in the eye of the law and consequently the trial court dismissed the execution petition. Further, we have already discussed the order of the trial court in the application for extension of time and we do not take the contention of the plaintiff buyer that the application was dismissed solely on the technical ground and that the application was filed after a delay of 3 weeks. The trial court has discussed full merits of the application and given a finding that there is no evidence to show that the plaintiff had made any effort to deposit the amount on 28.05.2007. The application was dismissed on its merits and not merely on the technical grounds. Further, we accept the submission of the learned counsel for the defendant seller that the plaintiff
- 19 -
WP No. 52750 of 2014buyer had even failed to make the deposit through the mode of payment as required by the decree.
15. Having given the above findings, the obvious corollary is that since the plaintiff buyer failed to comply with the terms of the decree, the suit stood dismissed as the order passing the decree was a peremptory order. In light of this, we do not find it necessary to address the arguments made by the counsel on the point of bona fide purchaser. Further, the contention that the acceptance of deposit made by the plaintiff buyer on 29.05.2007 is an implied grant of extension of time, is a misplaced one. Reliance cannot be placed on Mohd. Alimuddin v. Waizuddin [(1998)9 SCC 108] as in that case there was an application for extension of time which was granted, though at the risk of the depositor, along with the deposit of amount. This Court in the said case held that when the Court had allowed the application for extension of time in its wisdom, there was no reason to disturb it later. In the present case, there is rather a reverse situation wherein the trial court has dismissed the application for extension of time giving due reasons. In view of the above findings, the question as to whether the plaintiff buyer was required to give notice of the amount deposited also need not be answered, although we believe that had the plaintiff buyer, irrespective of any obligation under law, given notice of the deposit made to the defendant seller it would have helped the case of the plaintiff buyer."
b) In Bhupinder Kumar supra, paragraphs 21, 22 and 26 read as under:
- 20 -WP No. 52750 of 2014
"21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree.
22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties.
26. In the circumstances and the materials placed, we are satisfied that bereft of any acceptable material for extension of time, the executing court rightly declined to extend the time, consequently rescinded the contract as requested by the respondent judgment-debtor. The High
- 21 -WP No. 52750 of 2014
Court, after analyzing all these aspects and finding that the decision arrived at by the executing court is just and equitable, dismissed the revision."
c) In Sri Veerappa and another supra, paragraphs 7 and 8 read as follows:
"7. In the instant case, the agreement of sale was entered into between the parties in the year 1969 i.e., on 31.06.1969. The total sale consideration agreed to be paid was Rs.1,500/- out of which Rs.400/- was paid in advance in part performance of the agreement of sale. Possession was delivered to the plaintiff. He is enjoying the possession uninterruptedly from 31.06.1969. The suit for specific performance was filed on 03.06.1978. After contest, a decree was passed on 25.09.1978 decreeing the suit of the plaintiff directing the 1st defendant to receive the balance of sale consideration and execute the sale deed in favour of the plaintiff within six months from the date of the decree. The defendant preferred an appeal against the said judgment and decree. The appeal came to be dismissed by an order dated 30.03.1982.
8. 90 days is the time prescribed for preferring a second appeal against the said judgment and decree from the date of receipt of a copy of the order. Admittedly, no appeal was filed. The balance sale consideration of Rs.1,100/- was not deposited by the plaintiff in Court on the expiry of the period prescribed for preferring the appeal. He also did not issue any legal notice calling upon the defendants to receive the balance sale consideration and execute the sale deed. It is only after a period of 28 years,
- 22 -WP No. 52750 of 2014
he filed Execution case No.15/2010. Even at the time of filing of the execution case, he did not deposit the balance sale consideration of Rs.1,100/-. In the said execution proceedings, the defendant judgment debtor after service of notice filed an application under Section 28(2) of the Specific Relief Act praying for recession of contract and restoration of possession. It is thereafter, the plaintiff opened his eyed filed an application under Section 151 of CPC on 23.07.2011 requesting for extension of time for depositing the balance sale consideration of Rs.1,100/-. Therefore, it is clear that the plaintiff has slept over the matter. He was enjoying the property being in possession, without paying the sale consideration. He has not obeyed the terms of the decree and it is only after the judgment debtor filed an application for recession of the contract, he filed an application for time to pay the balance of sale consideration. The relief of specific performance being an equitable relief, he who seeks equity must do equity. In the facts and circumstances of this case, the Executing Court was justified in dismissing the application filed by the plaintiff and allowing the application filed by the defendant for recession of the contract and directing restoration of property to the defendant. The order passed is an equitable one. The Trial Court exercised its equitable jurisdiction in a proper manner. Therefore, this Court, while exercising its discretionary and equitable jurisdiction under Section 226 of the Constitution of India do not find any justification to interfere with a well considered equitable discretionary order. No merits. Petitions are dismissed."
- 23 -
WP No. 52750 of 2014d) In T.L.Rajagopal supra, paragraph 13 reads as follows:
"13. Therefore, to invoke the above provision, the person who has obtained a decree for specific performance ought to have failed to pay the money or other sum which the Court has ordered him to pay, within the period allowed by the decree or such further period as the Court may allow. In such an event the person who has suffered the decree has a right to apply to the Court in the same suit in which the decree was passed to have the contract rescinded. On such an application being made, 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. Once such an order for rescission of contract is made, the Court shall direct the purchaser or the lessee, if, he has obtained the possession of the property under the contract, to restore such possession to the vendor or lessor and also may direct payment to the vendor or lessor to pay the rents and profits which have accrued in respect of the property from the date on which the possession was obtained by the purchaser or lessee until restoration of possession to any vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee or earnest money or deposit in connection with the contract."
17. Section 28 of the Specific Relief Act, 1963 reads as under:
"28. Rescission in certain circumstances of contracts for the sale or lease of immovable
- 24 -WP No. 52750 of 2014
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 the 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 decree 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 the 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 or 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
- 25 -
WP No. 52750 of 2014further 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."
18. Sections 148 and 151 of the CPC read as under:
"148. Enlargement of time Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired.
151. Saving of inherent powers of court Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court."
19. A reading of Section 28 of the Specific Relief Act, Sections 148 and 151 of the CPC along with the judgments relied upon by the parties makes it abundantly clear that extension of time by the Court
- 26 -
WP No. 52750 of 2014for a party to comply with the terms of the judgment and decree is a matter of discretion. If the plaintiff/decree holder therein for any reason is unable to deposit any amount specified, he has a right to apply to the Court that passed the decree seeking extension of time to deposit the amount and the Court is vested with the power to grant any such extension. At the same time, when the applicant/plaintiff commits default in payment of the amount, a right is conferred upon the defendants/judgment debtors therein to approach the Court under Section 28 of the Specific Relief Act seeking rescission of the contract. Here again, the Court has a discretion to rescind the contract notwithstanding the fact that the decree has attained finality.
20. In the instant case, the decree is one for specific performance wherein the plaintiff was directed to deposit balance sale consideration of Rs.3,60,000/- within fifteen days of the judgment and decree in O.S.No.7019/1995, which he has complied. The plaintiff was also directed to deposit the interest amount @ 8% per annum within fifteen days from the date of the judgment and decree in O.S.No.7019/1995, which he assailed by way of RFA.CROB.9/2007. The defendants in the original suit also had assailed the judgment and decree of specific performance by way of RFA No.260/2007. As RFA No.260/2007 and RFA.CROB.7/2007 were pending before this Court, the plaintiff has not filed any execution petition. Once the same have been dismissed and the judgment and
- 27 -
WP No. 52750 of 2014decree in OS No.7019/1995 has been confirmed by this Court, the plaintiff has immediately taken steps to deposit up to date interest amount and has sought for execution of the decree, which is much prior to the defendants praying for rescinding and cancellation of the agreement of sale. Given the facts and circumstances of the case, we are of the opinion that if the defendants are permitted to rescind and cancel the sale agreement, it would be unjust and not equitable to the plaintiff. At the same time, we are of the opinion that if the plaintiff is directed to pay higher rate of interest that would serve the cause of justice. Hence, the following:
ORDER Time granted by the trial court in O.S.No.7019/1995 for deposit of balance sale consideration with interest at 8% p.a. from 30.05.1994 till realisation is enlarged till 20.09.2012 subject to the applicant/plaintiff paying higher rate of interest @ 18% p.a. for the period from 30.05.1994 to 20.09.2012. The said difference of interest at 10% p.a. on balance sale consideration of Rs.3,60,000/- shall be deposited by the applicant/plaintiff, within four weeks from the date of receipt of the order before the trial court. On such deposit, the respondents/defendants are at liberty to withdraw the same subject to identification in accordance with law.
IA No.1/2020 is allowed to the extent indicated above.
- 28 -WP No. 52750 of 2014
4. It is an undisputed fact that the aforesaid order was passed subsequent to the impugned order and during the pendency of the present petition. In view of the aforesaid order passed by the Hon'ble Division Bench dated 18.02.2021, I am of the considered opinion that the impugned order passed on I.A.Nos.
5 to 7 deserves to be set aside and the matter be remitted back to the Executing court for reconsideration of I.A.Nos.5 to 7 afresh in accordance with law, bearing in mind the order of the Hon'ble Division Bench dated 18.02.2021. All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
5. Further, since pursuant to the impugned order, the execution proceedings themselves were closed by the Executing Court, in view of the present order, the trial court is directed to restore / revive the execution proceedings so as to enable reconsideration of I.A.Nos. 5 to 7 as stated supra.
6. In the result, I pass the following:-
ORDER
(i) The petition is hereby allowed.
- 29 -
WP No. 52750 of 2014(ii) The impugned common order dated 14.10.2014 passed on I.A.Nos.5 to 7 in Ex.No.1646/2011 by the Executing Court is hereby set aside.
(iii) Ex.No.1646/2011 is restored to the file of Executing court / trial court.
(iv) The matter is remitted back to the trial court / Executing court for reconsideration of I.A.Nos. 5 to 7 afresh in accordance with law, bearing in mind the order of the Hon'ble Division Bench in RFA No.260/2007 dated 18.02.2021.
(v) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
(vi) Parties shall undertake to appear before the Executing Court /t rial court in Ex.No.1646/2011 on 19.06.2023.
Sd/-
JUDGE Srl.