Calcutta High Court
Sm. Mangala Ghosh vs Rabindra Nath Hazra on 4 April, 1986
Equivalent citations: AIR1987CAL307, 90CWN696, AIR 1987 CALCUTTA 307, (1986) 90 CAL WN 696, (1986) 1 CAL HN 425, (1986) 2 CURCC 25
ORDER Nirendra Krishna Mitra, J.
1. The petitioner in this Rule, instituted Title Suit No. 191 of 1979 in the 3rd Court of Munsif at Diamond Harbour, 24 Parganas against the opposite party inter alia, for specific performance of contract.
2. The case of the petitioner as made out in the plaint inter alia, was that due to her financial stringency she was compelled to take loan from the opposite party. In order to secure the said loan she had to execute a Sale Deed in favour of the opposite party in respect of the suit property, there, however, was an agreement of reconveyance on repayment of the entire loan amount and both the said documents were executed and registered on the same day; that the petitioner was all along willing to perform her part of the contract but the opposite party declined to perform his part of the contract and as such the said suit was filed. The defendant/opposite party filed a written statement denying and disputing the case of the petitioner.
3. That on the date fixed for peremptory hearing of the said suit i.e. on 24-8-1982 a compromise between the parties was effected and a compromise petition was also filed in Court on that date signed by both the parties. It was stipulated inter alia in the said compromise petition that the plaintiff-petitioner was to pay Rs. 4,000/- to the defendant-opposite party within 4 weeks from the said date and on such payment the suit would be decreed but indefault thesuit would stand dismissed.
4. The decree in the said suit was sealed and signed on 31-8-1982. Before the expiry of the said period stipulated on the said decree the petitioner on 14-9-82 filed in the Court below an application for extension of the said period, praying for extension of one month for depositing the said amount of Rs. 4,000/-. The said application was opposed by the opposite party. The learned Munsif, 3rd Court at Diamond Harbour, 24 Parganas, by his order No. 51 dated 30-9-1982 relying upon the decisions of this Court in the case of Bhutnath v. Sahadeb, and in the case of Jaynal Haldar v. Khorsed Sheikh, rejected the petitioner's said application for extension of time inter alia, on the ground that the Court had no power to enlarge the time for depositing the money in contravention of the statements made in the compromise petition. The learned Munsif distinguished this Court's decision cited by the petitioner in the case of Kandarpa Nag v. Banwarilal, reported in 33 Cal LJ 244 : (AIR 1921 Cal 356(2)) on the ground that the said decision had no manner of application in the facts and circumstances of the present case. Being aggrieved by the said order of the learned Munsif dated 30-9-82, the plaintiff petitioner has moved this Court in revision and obtained the present Rule.
5. Mr. Subhas Chandra Bose, learned advocate appearing on behalf of the petitioner has submitted before me that the learned Munsif had power to extend the time fixed for depositing the said sum of Rs. 4,000/- and he failed to exercise his said jurisdiction by dismissing the plaintiff petitioner's application without considering the same on merits. In support of his submission the learned advocate for the petitioner has relied upon a number of reported decisions.
6. In my view, the learned Munsif has clearly committed a jurisdiction (sic) by rejecting the plaintiff petitioner's prayer for extension time for depositing the amount stipulated in the compromise decree in question and therefore the matter ought to be remitted back to him for fresh disposal of the plaintiff petitioner's said application in accordance with law. There is a long catena of reported decisions which have upheld the Court's power to extend time fixed for a decree or order for performance of an act or for deposit of money. The reasons given by the learned Munsif for not applying the ratio of the decision in the case of Kandarpa Nag v. Banwarilal (AIR 1921 Cal 356(2)) (supra) are not sustainable. In the Division Bench decision in the case of Kandarpa Nag v. Banwarilal (supra) Sir Ashutosh Mookerjee, Acting Chief Justice had inter alia, held that in cases of specific performance of contracts to sell real estates, equity which governs the rights of the parties looks not at the letter but at the substance of the agreement, in order to ascertain whether the parties notwithstanding that they named a specific time within which completion was to take place, really and in substance, intended more than it should take place within a reasonable lime and that the jurisdiction of the Court to grant relief against forfeiture was not ousted by the circumstance that the agreement had been followed by a consent decree and, that the nature of the agreement was such as entitled the Court to grant relief against forfeiture on equitable grounds.
7. P. N. Mookerjee, Acting Chief Justice delivering the judgment of the Court in the case of Jadabendra Nath Mishra v. Manorama Debya, relying upon the decision reported in Kandarpa Nag's case (supra) held that the Court had ample power to grant relief against forfeiture by granting extension of time as stipulated in the compromise petition even without the consent of the parties. Their Lordships in Jadabendra Misra's case (supra) distinguished the judgment of the Hon'ble Supreme Court made in the case of Hukumchand v. Bansilal, , on the ground that the said case before the Supreme Court was one where there was a statutory time limit, which could not be extended by the Court in any event except by consent of the parties. Incidentally, the Supreme Court in their recent decision in the case of Periyakkal v. Dakshyani has distinguished on the same ground their said earlier decision in Hukumchand v. Bansilal (supra).
8. The Supreme Court has consistently recognised the Court's power under Sections 148, 149 and 151 of the Civil Procedure Code to extend the time peremptorily fixed for payment or deposit of an amount (vide Mahanth Ram Das v. Ganga Das ; Chinnamarkathian v. Ayyavoo, ). Relying on the decision of the Supreme Court in the case of Mahanth Ramdas's case (supra) Amiya Kumar Mookerji, J. in the decision of Smt. Lakshmi Bala Chanak v. Brojendra Nath Pain, , also held that the Court has power to extend time under Section 148 of the Code even if the time fixed by the decree or order has expired.
9 The view taken by me regarding the Court's power to enlarge time is supported also by the Supreme Court decision in the case of Smt. Pariyakkal v. Srnt. Dakshyani . In the said case the Supreme Court has clearly laid down the principle of law that when the parties entered into a compromise and invited the Court to make an order in terms of the compromise which the Court did, the time for deposit stipulated by the parties became the time allowed by the Court and thus it gives the Court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True, the Court would not re-write a contract between the parties but the Court would give great relief against a forfeiture clause; and where the contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed. The decision of the Supreme Court has a direct bearing on the point at issue in the present Rule.
10. In the case of Mehru v. Mohan Lal , the facts of which are almost similar to the present case, it was held that relief could be given by the Court by extending time fixed for payment of the amount in compromise decree under Section 148 of the Code because such a clause was in the nature of penalty and forfeiture clause and as such the Court was fully competent to give relief against it.
11. The ratio of the decision in Bhutnath v. Sahadeb cannot be applied for deciding the present case. The later decision in the case of Jaynal v. Khorshed, did not give independent reasons but merely followed the earlier decision in Bhutnath v. Sahadeb (supra). The decision in the case of Bhutnath v. Sahadeb (supra) is inapplicable to the present case before me. In the first place, the decision in the case of Bhutnadi v. Sahadeb (supra) is distinguishable on facts. Secondly while the said case was decided in the light of the provisions of the Specific Relief Act 1877, the present case would be governed by the Specific Relief Act 1963, the provisions of which are not exactly in pari materia with the Act of 1877.
12. In a recent Division Bench judgment of this Court in the case of Tapan Kumar Chatterjee v. Kalyani Debi , Anil Kumar Sen, J. explained the scope of Section 28 of the Specific Relief Act, 1963, and distinguishing the decision in Bhutnath's case (supra) held that under Section 35 of the Specific Relief Act, 1877, where the purchaser had failed to pay the balance consideration in terms of the decree, the vendor had an option of bringing a separate suit for rescinding the contract or toapply for such rescission in the same suit.
13. The law had since then been materially changed by the new Specific Relief Act, 1963. Now, a separate suit for rescission of the contract based on such a default being barred under Section 28(4), Section 28(1) provides for rescission in the same suit along with consequential reliefs under Section 28(2). It is significant to note that what the judicial decisions earlier recognised, namely, power of the Court to condone the breach and extend the time fixed by the initial decree for payment of the balance consideration has now been incorporated expressly in Section 28(1) of the new Act. Hence, there can no longer be any doubt about the existence of power in the Court to extend the time for payment as fixed by the initial decree. Recognising the initial decree to be a preliminary decree, the legislature expressly provided that the time specified therein can never be so peremptory that it can admit of no alteration under any . circumstance.
14. Under the provisions of Section 28 of the Specific Relief Act 1963, an independent suit for rescinding the contract by the vendor on the ground of such default on the part of the purchaser is otherwise barred; he is required to seek rescission in the very suit and in such proceeding for rescission the Court has ample power to extend the time and relieve the plaintiff of the default where such relief is sought for on just ground so that the Court cannot on the terms of its decree oust its jurisdiction either to grant such extension or to deprive the vendor of a relief to which he is otherwise entitled to. Such an act would really be ultra vires the Court's power because no Court can foreclose its jurisdiction conferred by the statute. In such a situation the Court's power to grant an extension under Section 28(1) of the Act, will be rendered nugatory. Necessarily, therefore, it should be held that in all cases where a condition is imposed such condition is never so peremptory as to actually take away the jurisdiction of the Court. Such a condition when imposed must be interpreted to be in essence an order in terrorem not intended to divest the Court of its power to pass other consequential orders including an order for extension of time expressly conferred by the statute. Such legislative change cuts at the very foundation of the decision in Bhutnath's case (supra),
15. In a more recent Division Bench decision of this Court in the case of Sunity Chandra Bose v. Nil Ratan Sinha , it has been held inter alia, that under Section 28 of the Specific Relief Act, 1963, the Court can extend the time for deposit of the purchase money or balance of the purchase-money but the said section does not empower the Court to direct deposit of the purchase-money or balance of purchase money buy instalments not followed by the conditional decree in a suit for specific performance of contract for sale of immovable property. Their Lordships, referring to the decision in Tapan Kumar Chalterjee's case (supra), however, held that the case of Sandhyarani v. Sudharani , where it was decided by the Supreme Court that a conditional decree for specific performance of contract containing a condition that in the event of default in depositing the balance of consideration money within the time stipulated in the decree, the suit would stand dismissed, was not a preliminary decree, unfortunately was not placed before the Court while deciding Tapan Kumar Chatterjee's case (supra) and, therefore, there is scope for rethinking in the matter so far as the conditional decrees are concerned.
16. The decision in Sunity Chandra Bose's case (supra), however, is distinguishable on facts as in that case the Court did not give any decision on the point regarding the Court's power to grant relief against forfeiture by granting extension of time stipulated in the compromise petition upon which the consent and/or conditional decree was passed in a suit for specific performance of contract, without the consent of the other party. Moreover, the decisions in Kandarpa Nag's case (AIR 1921 Cal 356(2)) (supra), Jadabendra Mishra'scase (supra) and Smt. Pariakkal's case (supra) also were not placed before their Lordships for consideration while deciding the case of Sunity Chandra Bose's case (supra). Although Bhutnath's case (supra) was referred to in the decision in Sunity Chandra Bose's case (supra), but it appears that the said case was not discussed at length in the judgment by their Lordships.
17. Therefore, relying upon the decisions reported in 33 Cal LJ 244 : (AIR 1921 Cal 356(2)) ; and and also following the decision in Tapan Kr. Chatterjee's case (supra) as in my view the decision in Sunity Chandra Bose's case (supra) is not in conflict with the Tapan Kumar Chatterjee's case (supra) on the point that under Section 28 of the Specific Relief Act, 1963, the Court can extend the time for deposit of the purchase-money or balance of the purchase-money, I hold that upon an application made by a party the Court can extend the timestipulated in the compromise petition upon which the consent decree has been passed in a suit for specific performance of contract, even without any consent of the other party, as in such a case the time so stipulated is not the essence of the contract and is a penal clause and such time becomes part of the Court's order and the Court is empowered to relieve the party concerned of the rigours of such penal clause in appropriate cases.
18. The impugned order, therefore, cannot be sustained and is thus set aside. The Rule is accordingly made absolute and I direct that the petitioner's application for extension of time be allowed and disposed of by the learned Munsif in accordance with law in the light of this judgment asquickly as possible.
19. Let the records go down immediately. There will be no order as to costs in this Rule.