P. SHYAMALA versus GUNDLUR MASTHAN on 24 February 2023

P. SHYAMALA

v.

GUNDLUR MASTHAN

(Civil Appeal Nos.1363-1364 of 2023)

FEBRUARY 24, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Specific Relief Act, 1963 : s. 28 – Rescission of agreement tosell, the specific performance of which is decreed – On facts,agreement to sell the suit property between the late mother of theappellant and the respondent – Suit for specific performance bythe respondent – Trial court passed an ex parte decree and directedthe respondent to deposit balance sale consideration, however, therespondent failed to pay the same – After 853 days the respondentfiled an application u/s. 148 CPC and s. 28 of the Specific ReliefAct for extension of time to deposit the balance amount – Trial courtallowed the application of the respondent while dismissed theappellant’s application u/s. 28 – High Court dismissed the revisionfiled by the appellant – Held : Nothing is on record that any stepswere taken by the respondent either to deposit/pay the balance saleconsideration or even calling upon the appellant to execute thesale deed as per the judgment and decree passed by the trial courttill the application u/s. 148 CPC and s. 28 of the Specific Relief Actwas filed – If the respondent was ready with the money payabletowards the balance sale consideration, he could have got the saledeed executed through power of attorney after effecting deposit/payment – In absence of any sufficient explanation, such a hugedelay of 853 days ought not to have been condoned by the trialCourt – Moreover, s. 28 of the Specific Relief Act seeks to providecomplete relief to both the parties in terms of a decree of specificperformance – Therefore, the trial court failed to exercise thediscretion judiciously in favour of the appellant and erred inexercising the discretionary power in favour of the respondent, thattoo with a delay of 853 days – High Court erred in upholding thesame – Code of Civil Procedure, 1908 – s. 148

Allowing the appeals, the Court

HELD: 1.1 At the outset, it is required to be noted that byan ex-parte judgment and decree dated 12.10.2013, the trial Court

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Apassed a decree for specific performance of the agreement tosell dated 9.5.2012. In the agreement to sell dated 9.5.2012, thetotal sale consideration was Rs. 23,00,000/-, against which Rs.8,00,000/- was paid as advance. The balance sale considerationof Rs. 15,00,000/- was directed to be deposited/paid by the plaintiffunder the ex-parte judgment and decree dated 12.10.2013, withinBtwo weeks from the said date, which expired on 21.10.2013.Nothing is on record that any steps were taken by the plaintiffeither to deposit/pay the balance sale consideration of Rs.15,00,000/- or even calling upon the defendant to execute thesale deed as per the judgment and decree passed by the trialCCourt dated 12.10.2013 till the present application under Section148 CPC and Section 28 of the Specific Relief Act was filed on7.6.2017/19.06.2017 with a huge delay of 853 days, seekingextension of time to deposit the balance sale consideration. Thereasons for delay are set out hereinabove. The explanation whichwas given by the plaintiff, narrated hereinabove, can hardly beDsaid to be a sufficient explanation as to why the plaintiff did notpay the balance sale consideration as per the judgment and decreeor even did not make an application within a reasonable timeunder Section 148 CPC and Section 28 of the Specific Relief Actseeking extension of time for making payment. If the plaintiff 9Ewas ready with the money payable towards the balance saleconsideration, he could have got the sale deed executed throughpower of attorney after effecting deposit/payment. In absence ofany sufficient explanation, such a huge delay of 853 days oughtnot to have been condoned by the trial Court. [Para 5][42-E-H;43-A-B]F

1.2. The Court is of the opinion that the trial Court erred inexercising the discretion in favour of the plaintiff and erred inextending the time in favour of the plaintiff to deposit the balancesale consideration of Rs. 15,00,000/- by condoning the huge delayof 853 days, which as observed hereinabove has not beenGexplained sufficiently at all. After the plaintiff was directed todeposit the balance sale consideration of Rs. 15,00,000/- within aperiod of two weeks from the date of ex-parte judgment and decreedated 12.10.2013, which the plaintiff failed to deposit/pay, evenno application for extension of time under Section 148 CPC andSection 28 of the Specific Relief Act was made thereafter within aH

reasonable time and was made after a period of 853 days. Nothingis on record that in between any notice was given to the defendantto execute the sale deed as per the judgment and decree ondeposit of the balance sale consideration. The application filedby the plaintiff under Section 148 CPC and Section 28 of theSpecific Relief Act seeking extension of time to deposit thebalance sale consideration was hopelessly delayed. Section 28 ofthe Specific Relief Act seeks to provide complete relief to boththe parties in terms of a decree of specific performance.Therefore, the trial Court failed to exercise the discretionjudiciously in favour of the defendant and erred in exercising thediscretionary power in favour of the plaintiff, that too with a delayof 853 days. The High Court has erred in confirming the sameand dismissing the revision applications. Under thecircumstances, the order passed by the trial Court allowing theapplication of the plaintiff being I.A. No. 732/2016 seekingextension of time to deposit the balance sale considerationdeserves to be dismissed and I.A. No. 914/2017 filed by thedefendant – appellant under Section 28 of the Specific Relief Actto rescind the agreement to sell dated 9.5.2012 deserves to beallowed. However, at the same time, to strike the balance betweenthe parties the amount of Rs. 8,00,000/- paid by the plaintiff as anadvance is to be returned to the plaintiff with 12% interest perannum from 13 9.5.2012 till the actual payment, within a periodof six weeks from today, failing which it shall carry interest @18% per annum. [[Para 8][44-H; 45-A-F]]

V.S. Palanichamy Chettiar Firm v. C. Alagappan andAnother (1999) 4 SCC 702 : [1999] 1 SCR 349 –referred to.

Kishor Ghanshyamsa Paralikar (D) through Lrs. v.Balaji Mandir Sansthan Mangrul (Nath) & Another Civil Appeal No. 3794/2022 – inapplicable.

Case Law Reference

[1999] 1 SCR 349referred to

Para 6

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.1363-1364 of 2023.

From the Judgment and Order dated 17.01.2022 of the High Courtfor the State of Telangana at Hyderabad in CRP Nos.2374 and 2304 of2019.

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AMithun Shashank, M. V. Mukunda, Krishna Dev Jagarlamudi,Advs. for the Appellant.

Harshit Tolia, Shesh Narayan Singh, Shrey Kapoor, Advs. for theRespondent.

The Judgment of the Court was delivered byB

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 17.01.2022 passed by the High Court for theState of Telangana at Hyderabad in CRP No. 2374/2019 & 2304/2019,Cby which the High Court has dismissed the said revision petitionspreferred by the appellant herein, the original revisionist has preferredthe present appeals.

2. The facts leading to the present appeals in a nutshell are asunder:

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DThat the respondent herein – original plaintiff instituted a CivilSuit No. 291/2013 against the mother of the appellant – original defendantfor specific performance of the agreement to sell dated 09.05.2012. Inthe agreement to sell, the late mother of the appellant agreed to sell thesuit property for a total sale consideration of Rs. 23,00,000/-, againstwhich an advance of Rs. 8,00,000/- was paid by the plaintiff.E

2.1 That the trial Court passed an ex-parte judgment and decreeon 12.10.2013 and passed a decree for specific performance of theagreement to sell dated 9.5.2012. While decreeing the suit, the trial Courtdirected the respondent – original plaintiff to deposit the balance saleconsideration of Rs. 15,00,000/- within two weeks before the trial Court.FThe trial Court also observed that in case the defendant fails to executethe sale deed on receiving the balance of sale consideration, the plaintiffis at liberty to get it done through process of law. Therefore, under thedecree dated 12.10.2013, the plaintiff was required to deposit Rs.15,00,000/- within a period of two weeks from the judgment and decreeGdated 12.10.2013. Thus, as per the judgment and decree dated 12.10.2013,the respondent – original plaintiff was required to pay/deposit the balancesale consideration of Rs. 15,00,000/- on or before 21.10.2013. However,the respondent herein – original plaintiff failed to pay/deposit the balancesale consideration as ordered by the trial Court.

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P. SHYAMALA v. GUNDLUR MASTHAN[M. R. SHAH, J.]

2.2 After a period of 853 days from the date of judgment anddecree dated 12.10.2013 passed by the trial Court, the original plaintiff –respondent herein filed an application before the trial Court under Section148 of the Code of Civil Procedure (for short, ‘CPC’) and Section 28 ofthe Specific Relief Act being I.A. No. 732/2016 in O.S. No. 291/2013and prayed for extension of time to deposit the balance sale considerationwhich the plaintiff was required to deposit on or before 21.10.2013, asper the judgment and decree dated 12.10.2013. At this stage, it is requiredto be noted that after the ex-parte judgment and decree, the mother ofthe appellant – original defendant died on 13.01.2015 and the appellantherein being legal heir of the original defendant was brought on record.Simultaneously, the appellant, being the legal representative of the originaldefendant, filed an application being I.A. No. 914/2017 in O.S. No. 291/2013 under Section 28 of the Specific Relief Act, 1963 to rescind theAgreement to Sell dated 9.5.2012.

2.3 Before the trial Court, it was the case on behalf of the plaintiffin support of I.A. No. 732/2016 that he became sick with Jaundice andtreated in the hospital from 1.11.2013 to 5.1.2014 and after dischargealso confined to house with High Blood Pressure, Diabetes and otherdiseases. It was also the case on behalf of the plaintiff that ultimately on9.6.2016 when he contacted the advocate he came to know about thejudgment and decree dated 12.10.2013 and the directions giventhereunder. Therefore, it was prayed to condone the delay of 853 daysand extend the time to deposit the balance sale consideration.

2.4 The said application was opposed by the appellant. It was thecase on behalf of the appellant in support of the application under Section28 of the Specific Relief Act that the plaintiff has wilfully not depositedthe balance sale consideration and therefore the agreement to sell dated9.5.2012 is required to be rescinded under section 28 of the SpecificRelief Act. It was also the case on behalf of the appellant that the allegedillness is false and created. By common order dated 29.06.2019, the trialCourt allowed I.A. No. 732/2016 directing the plaintiff to deposit thebalance sale consideration of Rs. 15,00,000/- with interest @ 18% perannum from the date of decree, i.e., 12.10.2013 till the date of deposit,within one month. Consequently, the trial Court dismissed I.A. No. 914/2017 filed by the appellant under Section 28 of the Specific Relief Act.

2.5 Feeling aggrieved and dissatisfied with the common order dated29.06.2019 passed by the trial Court in I.A. No. 732/2016 & I.A. No.

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A914/2017, the appellant herein filed the present revision applications beforethe High Court. By the impugned common judgment and order, the HighCourt has dismissed the said revision applications. Hence, the presentappeals.

3. Shri Mithun Shashank, learned counsel appearing on behalf ofBthe appellant has vehemently submitted that in the facts and circumstancesof the case, the trial Court committed a serious error in allowing theapplication submitted by the original plaintiff and extending the time bydirecting the plaintiff to deposit the balance sale consideration anddismissing the application filed by the appellant under Section 28 of theSpecific Relief Act.C3.1 It is vehemently submitted that as such there was a hugedelay of 853 days in submitting the application for extension of time todeposit the amount under section 148 CPC and Section 28 of the SpecificRelief Act. It is submitted that no sufficient cause was shown and/orthere was no explanation whatsoever given by the decree holder as toDwhy he did not pay the balance sale consideration as per the judgmentand decree dated 12.10.2013 or did not make an application under Section28 of the Specific Relief Act, seeking extension of time to make thepayment of balance sale consideration.

3.2 It is vehemently submitted that even as per the original plaintiffEhe became sick with Jaundice and was treated in the hospital from1.11.2013 to 5.1.2014 only. It is submitted that it is not believable at allthat thereafter he was confined to house with High Blood Pressure,Diabetes and other diseases for approximately two years. It is submittedthat therefore in absence of any reasonable explanation, the trial CourtFought not to have condoned the huge delay of 853 days occurred in filingthe application for extension of time to deposit the balance saleconsideration as per the judgment and decree passed by the trial Court.It is submitted that therefore the High Court has committed a very seriouserror in dismissing the revision applications.

G3.3 It is further submitted by the learned counsel appearing onbehalf of the appellant that as such the original plaintiff obtained the ex-parte judgment and decree dated 12.10.2013. It is submitted that theoriginal defendant – mother of the appellant died on 13.01.2015. Till herdeath, no efforts were made by the plaintiff to deposit the balance saleconsideration of Rs. 15,00,000/-. It is submitted that neither the balanceH

sale consideration as directed by the trial Court was paid, nor any stepswere taken to get the sale deed executed by the original defendant. It issubmitted that the aforesaid conduct on the part of the original plaintiffdisentitles him for any relief of extension of time for deposit of the balancesale consideration and therefore the trial Court ought to have rescindedthe agreement to sell dated 9.5.2012, in exercise of powers under Section28 of the Specific Relief Act. Heavy reliance is placed on the decisionof this Court in the case of V.S. Palanichamy Chettiar Firm v. C.Alagappan and Another, reported in (1999) 4 SCC 702 (paragraphs14, 16 & 17).

3.4 It is further submitted that even the equity is also in favour ofthe appellant. It is submitted that after the ex-parte judgment and decree,in the year 2013 the prices of the agricultural land in question have goneup to Rs. 3 crores. It is submitted that despite the judgment and decree,non-deposit of the balance sale consideration of Rs. 15,00,000/- at therelevant time, i.e., within a period of two weeks from the judgment anddecree dated 12.10.2013, disentitle the plaintiff seeking any extensionand it can be inferred that the plaintiff was not ready and willing toperform his part of the contract and even as directed by the trial Courtand therefore this is a fit case to rescind the agreement to sell dated9.5.2012, in exercise of powers under Section 28 of the Specific ReliefAct.

3.5 Making above submissions and relying upon the aforesaiddecision, it is prayed to allow the present appeals.

4. The present appeals are opposed by Shri Harshit Tolia, learnedcounsel appearing on behalf of the original plaintiff.

4.1 It is vehemently submitted by Shri Tolia, learned counselappearing on behalf of the original plaintiff that the order passed by thetrial Court in an application under Section 148 CPC and Section 28 ofthe Specific Relief Act is discretionary in nature and when the trial Courthad exercised its discretion in favour of the plaintiff and thereafter whenthe revision applications have been dismissed by the High Court, thesame may not be interfered with by this Court.

4.2 It is further submitted that the delay of 853 days wassufficiently explained by the plaintiff. It is submitted that the plaintiffbecame sick with Jaundice and was treated in the hospital from 1.11.2013to 5.1.2014. That thereafter and after his discharge he was also confined AB

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Ato house with High Blood Pressure, Diabetes and other diseases whichwere supported by the medical record. It is submitted that the trial Courthad accepted the explanation submitted on behalf of the plaintiff explainingthe delay occurred in making the application under Section 148 CPCand Section 28 of the Specific Relief Act and thereafter when the trialCourt extended the time and directed the plaintiff to deposit/pay theBbalance sale consideration of Rs. 15,00,000/- with interest @ 18% perannum and when the same is confirmed by the High Court, the samemay not be interfered with by this Court.

4.3 It is submitted that to strike the balance, the trial Court in facthad directed the plaintiff to pay/deposit the balance sale consideration ofCRs. 15,00,000/- with interest @ 18% per annum from the date of judgmentand decree dated 12.10.2013 till the actual payment.

4.4 Making above submissions and relying upon the recent decisionof this Court in the case of Kishor Ghanshyamsa Paralikar (D) throughLrs. V. Balaji Mandir Sansthan Mangrul (Nath) & Another (CivilDAppeal No. 3794/2022, decided on 9.5.2022), it is prayed to dismissthe present appeals.

5. We have heard learned counsel for the respective parties atlength.

EAt the outset, it is required to be noted that by an ex-parte judgmentand decree dated 12.10.2013, the trial Court passed a decree for specificperformance of the agreement to sell dated 9.5.2012. In the agreementto sell dated 9.5.2012, the total sale consideration was Rs. 23,00,000/-,against which Rs. 8,00,000/- was paid as advance. The balance saleconsideration of Rs. 15,00,000/- was directed to be deposited/paid byFthe plaintiff under the ex-parte judgment and decree dated 12.10.2013,within two weeks from the said date, which expired on 21.10.2013.Nothing is on record that any steps were taken by the plaintiff either todeposit/pay the balance sale consideration of Rs. 15,00,000/- or evencalling upon the defendant to execute the sale deed as per the judgmentGand decree passed by the trial Court dated 12.10.2013 till the presentapplication under Section 148 CPC and Section 28 of the Specific ReliefAct was filed on 7.6.2017/19.06.2017 with a huge delay of 853 days,seeking extension of time to deposit the balance sale consideration. Thereasons for delay are set out hereinabove. The explanation which wasgiven by the plaintiff, narrated hereinabove, can hardly be said to be aHsufficient explanation as to why the plaintiff did not pay the balance sale consideration as per the judgment and decree or even did not make anapplication within a reasonable time under Section 148 CPC and Section28 of the Specific Relief Act seeking extension of time for makingpayment. If the plaintiff was ready with the money payable towards thebalance sale consideration, he could have got the sale deed executedthrough power of attorney after effecting deposit/payment. In absenceof any sufficient explanation, such a huge delay of 853 days ought not tohave been condoned by the trial Court.

6. It is observed and held by this Court in the case of V.S.Palanichamy Chettiar Firm (supra) that provisions to grant specificperformance of an agreement are quite stringent. Equitable considerationscome into play. The Court has to see all the attendant circumstancesincluding if the vendee has conducted himself in a reasonable mannerunder the contract of sale. It is further observed that therefore, the Courtcannot as a matter of course, allow extension of time for making paymentof balance amount of consideration in terms of a decree. It is furtherobserved that in absence of any explanation whatsoever even by thedecree holders as to why they did not pay the balance amount ofconsideration as per the decree or did not make an application undersection 28 of the Specific Relief Act seeking extension of time for makingpayment, equity demands that discretion be not exercised in favour ofthe decree holders and no extension of time be granted to them to complywith the decree.

7. Now so far as the reliance placed upon the decision of thisCourt in the case of Kishor Ghanshyamsa Paralikar (D) throughLrs. (supra), relied upon on behalf of the respondent is concerned, it isrequired to be noted that in the said case before this Court, the total saleconsideration was Rs. 8,78,500/-. The vendee paid a sum of Rs. 7,31,000/- immediately. He was required to pay the remaining amount of Rs.1,47,500/- within a period of one month from the date of the compromisedecree. There was a delay of five days only in paying the remainingamount of Rs. 1,47,500/-. Therefore, in exercise of powers under Section28 of the Specific Relief Act, this Court allowed the extension of time infavour of the decree holder to deposit the balance sale consideration. Inthe said decision, in paragraph 11, it is observed as under:

“11.This section gives to the vendor or the lessor the right torescission of the contract for the sale or lease of the immovableproperty in the same suit, when after a suit for specific performance AB

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Ais decreed, if the vendor or the lessor fails to pay the purchasemoney within the period fixed. This section seeks to providecomplete relief to both the parties in terms of a decree of specificperformance in the said suit without having resort to a separateproceeding. Therefore, a suit for specific performance does notcome to an end on the passing of a decree and the court whichBhas passed the decree for specific performance retains controlover the decree even after the decree has been passed. Section28 not only permits the judgment-debtors to seek rescission of thecontract but also permits extension of time by the court to pay theamount. The power under this section is discretionary and theCcourt has to pass an order as the justice of the case may require.It is also settled that time for payment of sale consideration maybe extended even in a consent decree. This Court in Smt.Periyakkal and ors. Vs. Smt. Dakshyani1, speaking throughChinnappa Reddy, J. observed that even in a compromise decree,the court may enlarge the time in order to prevent manifest injustice,Dand to give relief to the aggrieved party against a forfeiture clause.The Court observed the following:

“4 ................................. The parties, however, entered into acompromise and invited the court to make an order in terms ofthe compromise, which the court did. The time for depositstipulated by the parties became the time allowed by the courtand this gave the court the jurisdiction to extend time inappropriate cases. Of course, time would not be extendedordinarily, nor for the mere asking. It would be granted in rarecases to prevent manifest injustice. True the court would notrewrite a contract between the parties but the court wouldrelieve against a forfeiture clause; And, where the contract ofthe parties has merged in the order of the court, the court’sfreedom to act to further the ends of justice would surely notstand curtailed.”

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GTherefore, as observed by this Court, the power under Section 28of the Specific Relief Act is discretionary and the Court has to pass anorder as the justice may require.

8. Applying the law laid down by this Court in the aforesaid decisionto the facts of the case on hand and considering Section 28 of the SpecificHRelief Act, we are of the opinion that the trial Court erred in exercising

the discretion in favour of the plaintiff and erred in extending the time infavour of the plaintiff to deposit the balance sale consideration ofRs. 15,00,000/- by condoning the huge delay of 853 days, which asobserved hereinabove has not been explained sufficiently at all. Asobserved hereinabove, after the plaintiff was directed to deposit thebalance sale consideration of Rs. 15,00,000/- within a period of twoweeks from the date of ex-parte judgment and decree dated 12.10.2013,which the plaintiff failed to deposit/pay, even no application for extensionof time under Section 148 CPC and Section 28 of the Specific ReliefAct was made thereafter within a reasonable time and was made aftera period of 853 days. Nothing is on record that in between any noticewas given to the defendant to execute the sale deed as per the judgmentand decree on deposit of the balance sale consideration. The applicationfiled by the plaintiff under Section 148 CPC and Section 28 of the SpecificRelief Act seeking extension of time to deposit the balance saleconsideration was hopelessly delayed. As observed hereinabove, Section28 of the Specific Relief Act seeks to provide complete relief to both theparties in terms of a decree of specific performance. Therefore, the trialCourt failed to exercise the discretion judiciously in favour of the defendantand erred in exercising the discretionary power in favour of the plaintiff,that too with a delay of 853 days. The High Court has erred in confirmingthe same and dismissing the revision applications. Under thecircumstances, the order passed by the trial Court allowing the applicationof the plaintiff being I.A. No. 732/2016 seeking extension of time todeposit the balance sale consideration deserves to be dismissed and I.A.No. 914/2017 filed by the defendant – appellant under Section 28 of theSpecific Relief Act to rescind the agreement to sell dated 9.5.2012deserves to be allowed.

However, at the same time, to strike the balance between theparties the amount of Rs. 8,00,000/- paid by the plaintiff as an advanceis to be returned to the plaintiff with 12% interest per annum from9.5.2012 till the actual payment, within a period of six weeks from today,failing which it shall carry interest @ 18% per annum.

9. In view of the above and for the reasons stated above, boththese appeals succeed. The impugned common judgment and order dated17.01.2022 passed by the High Court dismissing the revision applicationsand the common order passed by the trial Court dated 29.06.2019 allowingI.A. No. 732/2016 filed by the plaintiff seeking extension of time with a AB

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Ahuge delay of 853 days and dismissing I.A. No. 914/2017 filed by thedefendant to rescind the agreement to sell dated 09.05.2012 are herebyquashed and set aside. I.A. No. 732/2016 filed by the plaintiff underSection 148 CPC and Section 28 of the Specific Relief Act seekingextension of time with a huge delay of 853 days to deposit the balancesale consideration stands dismissed. I.A. No. 914/2017 filed by theBappellant – defendant under Section 28 of the Specific Relief Act torescind the agreement to sell dated 09.05.2012 on non-payment of/depositof the balance sale consideration by the plaintiff, which the plaintiff wasrequired to deposit/pay within a period of two weeks from the date ofex-parte judgment and decree dated 12.10.2013, stands allowed.CAgreement to sell dated 09.05.2012 stands rescinded in exercise ofpowers under Section 28 of the Specific Relief Act. However, theappellant herein is directed to refund the amount of Rs. 8,00,000/- to theplaintiff with 12% interest from 09.05.2012 till the actual payment, withina period of six weeks from today, failing which it shall carry interest @18% per annum.D10. The instant appeals are allowed accordingly in the aforesaidterms.

No costs.

ENidhi Jain

(Assisted by : Abhishek Agnihotri and Tamana, LCRAs)

Appeals allowed.

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