KISHOR GHANSHYAMSA PARALIKAR (DEAD) versus BALAJI MANDIR SANSTHAN MANGRUL (NATH) AND ANR. on 9 May 2022

1. Leave granted.

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2. Delay in filing the application for substitution is condoned andabatement is set aside. The application for substitution is allowed.

3. This appeal is directed against the order dated 30.01.2018 inW.P.NO.1637 of 2016 whereby the High Court of Judicature at Bombay,Nagpur Bench, has allowed the Writ Petition filed by the first respondent-ETrust and set aside the orders passed by the Trial Court granting extensionof time for depositing the balance of the sale consideration.

4. On 12.03.2007, the appellant herein filed a suit for specificperformance of an agreement dated 20.09.2002 executed by the firstrespondent in his favour for the sale of agricultural land bearing SurveyFNo.3, admeasuring 10 H (Hactor), 50 R (Are) situated at VillageMurtizapur, Mangrulpir Taluk, District Washim, State of Maharashtra.

5. During the pendency of the suit, a compromise was arrived atbetween the parties and accordingly the Trial Court vide Order dated06.12.2010 decreed the suit in terms of the compromise. As per theGcompromise decree, the respondent agreed to sell the suit land for atotal consideration of Rs.8,78,500/-. The appellant paid a sum of Rs.Rs.7,31,000/- immediately to the first respondent. He was required topay the remaining amount of Rs.1,47,500/- within a period of one monthfrom the date of the compromise decree.

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6. The appellant moved an application on 11.01.2011 seekingpermission of the court to deposit the balance of Rs.1,47,500/- as per thedecree. The said application was allowed by the Trial Court, andaccordingly, the said amount was deposited by the appellant in the courton the same day. On 12.01.2011, the first respondent executed the saledeed in respect of the suit property in favour of the appellant. On15.01.2011, the appellant filed an application for extension of time forpayment of balance of the sale consideration which was allowed by theTrial Court vide Order dated 02.12.2015.

7. After a passage of about three years from the date of executionof the sale deed, the first respondent filed an application for cancellationof the aforesaid sale deed and for a direction to recover possession ofthe suit property from the appellant. The Trial Court vide Order dated13.01.2016 dismissed the said application.

8. Being aggrieved, the first respondent filed a writ petition beforethe High Court. As noticed above, the High Court has allowed the writpetition and cancelled the sale deed dated 12.01.2011.

9. We have heard learned counsel for the parties and perused thematerials placed on record.

10. Section 28 of the Specific Relief Act, 1963 provides forrescission of the contract for sale or lease of immovable property, thespecific performance of which has been decreed. Sub-section (1) ofSection 28 is relevant for this case, which is as under:

“28. Rescission in certain circumstances of contracts for the saleor lease of immovable property, the specific performance of whichhas been decreed.—

(1) Where in any suit a decree for specific performance of acontract for the sale or lease of immovable property has beenmade and the purchaser or lessee does not, within the periodallowed by the decree or such further period as the court mayallow, pay the purchase money or other sum which the court hasordered him to pay, the vendor or lessor may apply in the samesuit in which the decree is made, to have the contract rescindedand on such application the court may, by order, rescind the contracteither so far as regards the party in default or altogether, as thejustice of the case may require.”

(Emphasis supplied)

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A11. This section gives to the vendor or the lessor the right torescission of the contract for the sale or lease of the immovable propertyin the same suit, when after a suit for specific performance is decreed,if the vendor or the lessor fails to pay the purchase money within theperiod fixed. This section seeks to provide complete relief to both theparties in terms of a decree of specific performance in the said suitBwithout having resort to a separate proceeding. Therefore, a suit forspecific performance does not come to an end on the passing of a decreeand the court which has passed the decree for specific performanceretains control over the decree even after the decree has been passed.Section 28 not only permits the judgment-debtors to seek rescission ofCthe contract but also permits extension of time by the court to pay theamount. The power under this section is discretionary and the court hasto pass an order as the justice of the case may require. It is also settledthat time for payment of sale consideration may be extended even in aconsent decree. This Court in Smt. Periyakkal and ors. Vs. Smt.Dakshyani[1], speaking through Chinnappa Reddy, J. observed that evenDin a compromise decree, the court may enlarge the time in order toprevent manifest injustice, and to give relief to the aggrieved party againsta forfeiture clause. The Court observed the following:

“4.……………. The parties, however, entered into a compromiseand invited the court to make an order in terms of the compromise,Ewhich the court did. The time for deposit stipulated by the partiesbecame the time allowed by the court and this gave the court thejurisdiction to extend time in appropriate cases. Of course, timewould not be extended ordinarily, nor for the mere asking. It wouldbe granted in rare cases to prevent manifest injustice. True theFcourt would not rewrite a contract between the parties but thecourt would relieve against a forfeiture clause; And, where thecontract of the parties has merged in the order of the court, thecourt’s freedom to act to further the ends of justice would surelynot stand curtailed.”

G12. In the instant case, as per compromise decree dated 06.12.2010the appellant was required to pay the balance sale consideration ofRs.1,47,500/- on or before 06.01.2011. There was a delay of about fivedays in payment of balance of the amount. Therefore, he filed anapplication on 11.01.2011 seeking permission of the court to deposit the H1 (1983) 2 SCC 127

balance of the amount which was allowed by the trial court on the sameday. Accordingly, he deposited the said amount on 11.01.2011 and thesale deed was executed in favour of the appellant on 12.01.2011.Subsequently, the application filed by the appellant seeking extension oftime was also allowed by the Trial Court. After a passage of nearly 3years, the application filed by the first respondent seeking rescission ofthe contract was dismissed by the Trial Court. This order of the TrialCourt has been set aside by the High Court.

13. We are of the view that, the Trial Court in its discretion hasgranted extension of time for depositing the balance of sale considerationassigning cogent reasons. In our view, the High Court was not justifiedin setting aside the said order and cancelling the sale deed.

14. Resultantly, the appeal succeeds and is accordingly allowed.The judgment and order of the High Court dated 30.01.2018 inW.P.NO.1637 of 2016 is set aside and the order of the Trial Court dated11.01.2011 permitting the appellant to deposit the balance amount ofRs.1,47,500/- is restored. No costs.

Bibhuti Bhushan Bose

Appeal allowed.

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