Kishor Ghanshyamsa Paralikar (Dead) vs Balaji Mandir Sansthan Mangrul (Nath)

2022 INSC 538 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 3794 OF 2022 (Arising out of S.L.P. (Civil) No.16942 of 2018

KISHOR GHANSHYAMSA PARALIKAR (DEAD) …APPELLANT(S)

VERSUS

BALAJI MANDIR SANSTHAN MANGRUL (NATH) AND ANR. …RESPONDENT(S)

ORDER

S. ABDUL NAZEER, J.

Leave granted.

2. Delay in filing the application for substitution is condoned and

abatement is set aside. The application for substitution is allowed.

3. This appeal is directed against the order dated 30.01.2018 in

W.P.NO.1637 of 2016 whereby the High Court of Judicature at

Bombay, Nagpur Bench, has allowed the Writ Petition filed by the first

respondent­Trust and set aside the orders passed by the Trial Court

granting extension of time for depositing the balance of the sale

consideration.

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4. On 12.03.2007, the appellant herein filed a suit for specific

performance of an agreement dated 20.09.2002 executed by the first

respondent in his favour for the sale of agricultural land bearing

Survey No.3, admeasuring 10 H (Hactor), 50 R (Are) situated at Village

Murtizapur, Mangrulpir Taluk, District Washim, State of Maharashtra.

5. During the pendency of the suit, a compromise was arrived at

between the parties and accordingly the Trial Court vide Order dated

06.12.2010 decreed the suit in terms of the compromise. As per the

compromise decree, the respondent agreed to sell the suit land for a

total 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 to

pay the remaining amount of Rs.1,47,500/­ within a period of one

month from the date of the compromise decree.

6. The appellant moved an application on 11.01.2011 seeking

permission of the court to deposit the balance of Rs.1,47,500/­ as per

the decree. The said application was allowed by the Trial Court, and

accordingly, the said amount was deposited by the appellant in the

court on the same day. On 12.01.2011, the first respondent executed

the sale deed in respect of the suit property in favour of the appellant.

On 15.01.2011, the appellant filed an application for extension of time 3

for payment of balance of the sale consideration which was allowed by

the Trial Court vide Order dated 02.12.2015.

7. After a passage of about three years from the date of execution of

the sale deed, the first respondent filed an application for cancellation

of the aforesaid sale deed and for a direction to recover possession of

the suit property from the appellant. The Trial Court vide Order dated

13.01.2016 dismissed the said application.

8. Being aggrieved, the first respondent filed a writ petition before

the High Court. As noticed above, the High Court has allowed the writ

petition and cancelled the sale deed dated 12.01.2011.

9. We have heard learned counsel for the parties and perused the

materials placed on record.

10. Section 28 of the Specific Relief Act, 1963 provides for rescission

of the contract for sale or lease of immovable property, the specific

performance of which has been decreed. Sub­section (1) of Section 28

is relevant for this case, which is as under:

“28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.—

(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and 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 4

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.”

(Emphasis supplied)

11. This section gives to the vendor or the lessor the right to

rescission of the contract for the sale or lease of the immovable

property in 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 the period fixed. This section seeks to provide complete relief to

both the parties in terms of a decree of specific performance in the

said suit without having resort to a separate proceeding. Therefore, a

suit for specific performance does not come to an end on the passing

of a decree and the court which has passed the decree for specific

performance retains control over the decree even after the decree has

been passed. Section 28 not only permits the judgment­debtors to

seek rescission of the contract but also permits extension of time by

the court to pay the amount. The power under this section is

discretionary and the court has to pass an order as the justice of the

case may require. It is also settled that time for payment of sale

consideration may be extended even in a consent decree. This Court in 5

Smt. Periyakkal and ors. Vs. Smt. Dakshyani 1, speaking through

Chinnappa Reddy, J. observed that even in a compromise decree, the

court may enlarge the time in order to prevent manifest injustice, and

to give relief to the aggrieved party against a forfeiture clause. The

Court observed the following:

“4.……………. The parties, however, 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 this gave 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 rewrite a contract between the parties but the court would relieve 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.”

12. In the instant case, as per compromise decree dated 06.12.2010

the appellant was required to pay the balance sale consideration of

Rs.1,47,500/­ on or before 06.01.2011. There was a delay of about

five days in payment of balance of the amount. Therefore, he filed an

application on 11.01.2011 seeking permission of the court to deposit

the balance of the amount which was allowed by the trial court on the

same day. Accordingly, he deposited the said amount on 11.01.2011

and the sale deed was executed in favour of the appellant on

1 (1983) 2 SCC 127 6

12.01.2011. Subsequently, the application filed by the appellant

seeking extension of time was also allowed by the Trial Court. After a

passage of nearly 3 years, the application filed by the first respondent

seeking rescission of the contract was dismissed by the Trial Court.

This order of the Trial Court has been set aside by the High Court.

13. We are of the view that, the Trial Court in its discretion has

granted extension of time for depositing the balance of sale

consideration assigning cogent reasons. In our view, the High Court

was not justified in 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 in

W.P.NO.1637 of 2016 is set aside and the order of the Trial Court

dated 11.01.2011 permitting the appellant to deposit the balance

amount of Rs.1,47,500/­ is restored. No costs.

…………………………………J. (S. ABDUL NAZEER)

…………………………………J. (VIKRAM NATH) New Delhi;

May 9, 2022.

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ITEM NO.15 COURT NO.7 SECTION IX

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 16942/2018

(Arising out of impugned final judgment and order dated 30-01-2018 in WP No. 1637/2016 passed by the High Court of Judicature at Bombay at Nagpur)

KISHOR GHANSHYAMSA PARALIKAR (DEAD) Petitioner(s)

VERSUS

BALAJI MANDIR SANSTHAN MANGRUL (NATH) & ANR. Respondent(s)

IA No. 6772/2022 - APPLICATION FOR SUBSTITUTION IA No. 16721/2022 - CONDONATION OF DELAY IN FILING SUBSTITUTION APPLN.

IA No. 74734/2018 - EXEMPTION FROM FILING O.T. IA No. 16722/2022 - SETTING ASIDE AN ABATEMENT)

Date : 09-05-2022 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE S. ABDUL NAZEER HON'BLE MR. JUSTICE VIKRAM NATH

For Petitioner(s) Mr. Kishor Ram Lambat, adv.

Ms. Kashmira Lambat, Adv.

Mr. Sachin Pahwa, Adv.

Ms. Jyoti thakur, Adv.

Ms. Reeta Puniya, Adv.

M/S. Lambat And Associates, AOR

For Respondent(s) Mr. AaditYA a. Pande, Adv.

Mr. Chander Shekhar Ashri, AOR

Mr. Rahul Chitnis, Adv.

Mr. Ravindra Chingale, Adv.

Ms. Anisha Mathur, Adv.

Mr. Sachin Patil, AOR Mr. Geo Joseph, Adv.

Ms. Shwetal Shepal, Adv.

8 UPON hearing the counsel the Court made the following O R D E R

Delay condoned.

Abatement is set aside.

Substitution is allowed.

Leave granted.

The appeal is allowed in terms of the signed Reportable order.

Pending applications, if any, also stand disposed of.

(NEELAM GULATI) (KAMLESH RAWAT) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

(Signed Reportable order is placed on the file)