P. Shyamala vs Gundlur Masthan

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1363-1364 OF 2023 (Arising from SLP(C) Nos. 9504-9505/2022)

P. Shyamala …Appellant

Versus

Gundlur Masthan …Respondent

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned common

judgment and order dated 17.01.2022 passed by the High Court for the

State of Telangana at Hyderabad in CRP No. 2374/2019 & 2304/2019,

by which the High Court has dismissed the said revision petitions

preferred by the appellant herein, the original revisionist has preferred

the present appeals.

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

Signature Not Verified

That the respondent herein – original plaintiff instituted a Civil Suit Digitally signed by R Natarajan No. 291/2013 against the mother of the appellant – original defendant for Date: 2023.02.24 16:49:51 IST Reason:

specific performance of the agreement to sell dated 09.05.2012. In the

1 agreement to sell, the late mother of the appellant agreed to sell the suit

property for a total sale consideration of Rs. 23,00,000/-, against which

an advance of Rs. 8,00,000/- was paid by the plaintiff.

2.1 That the trial Court passed an ex-parte judgment and decree on

12.10.2013 and passed a decree for specific performance of the

agreement to sell dated 9.5.2012. While decreeing the suit, the trial

Court directed the respondent – original plaintiff to deposit the balance

sale consideration of Rs. 15,00,000/- within two weeks before the trial

Court. The trial Court also observed that in case the defendant fails to

execute the sale deed on receiving the balance of sale consideration,

the plaintiff is at liberty to get it done through process of law. Therefore,

under the decree dated 12.10.2013, the plaintiff was required to deposit

Rs. 15,00,000/- within a period of two weeks from the judgment and

decree dated 12.10.2013. Thus, as per the judgment and decree dated

12.10.2013, the respondent – original plaintiff was required to

pay/deposit the balance sale consideration of Rs. 15,00,000/- on or

before 21.10.2013. However, the respondent herein – original plaintiff

failed to pay/deposit the balance sale consideration as ordered by the

trial Court.

2.2 After a period of 853 days from the date of judgment and decree

dated 12.10.2013 passed by the trial Court, the original plaintiff –

respondent herein filed an application before the trial Court under

2 Section 148 of the Code of Civil Procedure (for short, ‘CPC’) and Section

28 of the Specific Relief Act being I.A. No. 732/2016 in O.S. No.

291/2013 and prayed for extension of time to deposit the balance sale

consideration which the plaintiff was required to deposit on or before

21.10.2013, as per the judgment and decree dated 12.10.2013. At this

stage, it is required to be noted that after the ex-parte judgment and

decree, the mother of the appellant – original defendant died on

13.01.2015 and the appellant herein being legal heir of the original

defendant was brought on record. Simultaneously, the appellant, being

the legal representative of the original defendant, 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 the Agreement to Sell dated

9.5.2012.

2.3 Before the trial Court, it was the case on behalf of the plaintiff in

support of I.A. No. 732/2016 that he became sick with Jaundice and

treated in the hospital from 1.11.2013 to 5.1.2014 and after discharge

also confined to house with High Blood Pressure, Diabetes and other

diseases. It was also the case on behalf of the plaintiff that ultimately on

9.6.2016 when he contacted the advocate he came to know about the

judgment and decree dated 12.10.2013 and the directions given

thereunder. Therefore, it was prayed to condone the delay of 853 days

and extend the time to deposit the balance sale consideration.

3 2.4 The said application was opposed by the appellant. It was the

case on behalf of the appellant in support of the application under

Section 28 of the Specific Relief Act that the plaintiff has wilfully not

deposited the balance sale consideration and therefore the agreement to

sell dated 9.5.2012 is required to be rescinded under section 28 of the

Specific Relief Act. It was also the case on behalf of the appellant that

the alleged illness is false and created. By common order dated

29.06.2019, the trial Court allowed I.A. No. 732/2016 directing the

plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- with

interest @ 18% per annum 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 dated

29.06.2019 passed by the trial Court in I.A. No. 732/2016 & I.A. No.

914/2017, the appellant herein filed the present revision applications

before the High Court. By the impugned common judgment and order,

the High Court has dismissed the said revision applications. Hence, the

present appeals.

3. Shri Mithun Shashank, learned counsel appearing on behalf of the

appellant has vehemently submitted that in the facts and circumstances

of the case, the trial Court committed a serious error in allowing the

4 application submitted by the original plaintiff and extending the time by

directing the plaintiff to deposit the balance sale consideration and

dismissing the application filed by the appellant under Section 28 of the

Specific Relief Act.

3.1 It is vehemently submitted that as such there was a huge delay of

853 days in submitting the application for extension of time to deposit

the amount under section 148 CPC and Section 28 of the Specific Relief

Act. It is submitted that no sufficient cause was shown and/or there was

no explanation whatsoever given by the decree holder as to why he did

not pay the balance sale consideration as per the judgment and decree

dated 12.10.2013 or did not make an application under Section 28 of the

Specific Relief Act, seeking extension of time to make the payment of

balance sale consideration.

3.2 It is vehemently submitted that even as per the original plaintiff he

became sick with Jaundice and was treated in the hospital from

1.11.2013 to 5.1.2014 only. It is submitted that it is not believable at all

that thereafter he was confined to house with High Blood Pressure,

Diabetes and other diseases for approximately two years. It is submitted

that therefore in absence of any reasonable explanation, the trial Court

ought not to have condoned the huge delay of 853 days occurred in

filing the application for extension of time to deposit the balance sale

consideration as per the judgment and decree passed by the trial Court.

5 It is submitted that therefore the High Court has committed a very

serious error in dismissing the revision applications.

3.3 It is further submitted by the learned counsel appearing on behalf

of the appellant that as such the original plaintiff obtained the ex-parte

judgment and decree dated 12.10.2013. It is submitted that the original

defendant – mother of the appellant died on 13.01.2015. Till her death,

no efforts were made by the plaintiff to deposit the balance sale

consideration of Rs. 15,00,000/-. It is submitted that neither the balance

sale consideration as directed by the trial Court was paid, nor any steps

were taken to get the sale deed executed by the original defendant. It is

submitted that the aforesaid conduct on the part of the original plaintiff

disentitles him for any relief of extension of time for deposit of the

balance sale consideration and therefore the trial Court ought to have

rescinded the agreement to sell dated 9.5.2012, in exercise of powers

under Section 28 of the Specific Relief Act. Heavy reliance is placed on

the decision of this Court in the case of V.S. Palanichamy Chettiar

Firm v. C. Alagappan and Another, reported in (1999) 4 SCC 702

(paragraphs 14, 16 & 17).

3.4 It is further submitted that even the equity is also in favour of the

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 gone

up to Rs. 3 crores. It is submitted that despite the judgment and decree,

6 non-deposit of the balance sale consideration of Rs. 15,00,000/- at the

relevant time, i.e., within a period of two weeks from the judgment and

decree dated 12.10.2013, disentitle the plaintiff seeking any extension

and it can be inferred that the plaintiff was not ready and willing to

perform his part of the contract and even as directed by the trial Court

and therefore this is a fit case to rescind the agreement to sell dated

9.5.2012, in exercise of powers under Section 28 of the Specific Relief

Act.

3.5 Making above submissions and relying upon the aforesaid

decision, it is prayed to allow the present appeals.

4. The present appeals are opposed by Shri Harshit Tolia, learned

counsel appearing on behalf of the original plaintiff.

4.1 It is vehemently submitted by Shri Tolia, learned counsel appearing

on behalf of the original plaintiff that the order passed by the trial Court in

an application under Section 148 CPC and Section 28 of the Specific

Relief Act is discretionary in nature and when the trial Court had

exercised its discretion in favour of the plaintiff and thereafter when the

revision applications have been dismissed by the High Court, the same

may not be interfered with by this Court.

4.2 It is further submitted that the delay of 853 days was sufficiently

explained by the plaintiff. It is submitted that the plaintiff became sick

with Jaundice and was treated in the hospital from 1.11.2013 to

7 5.1.2014. That thereafter and after his discharge he was also confined

to house with High Blood Pressure, Diabetes and other diseases which

were supported by the medical record. It is submitted that the trial Court

had accepted the explanation submitted on behalf of the plaintiff

explaining the delay occurred in making the application under Section

148 CPC and Section 28 of the Specific Relief Act and thereafter when

the trial Court extended the time and directed the plaintiff to deposit/pay

the balance sale consideration of Rs. 15,00,000/- with interest @ 18%

per annum and when the same is confirmed by the High Court, the same

may not be interfered with by this Court.

4.3 It is submitted that to strike the balance, the trial Court in fact had

directed the plaintiff to pay/deposit the balance sale consideration of Rs.

15,00,000/- with interest @ 18% per annum from the date of judgment

and decree dated 12.10.2013 till the actual payment.

4.4 Making above submissions and relying upon the recent decision of

this Court in the case of Kishor Ghanshyamsa Paralikar (D) through

Lrs. V. Balaji Mandir Sansthan Mangrul (Nath) & Another (Civil

Appeal No. 3794/2022, decided on 9.5.2022), it is prayed to dismiss

the present appeals.

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

length.

8 At the outset, it is required to be noted that by an ex-parte

judgment and decree dated 12.10.2013, the trial Court passed a decree

for specific performance of the agreement to sell dated 9.5.2012. In the

agreement to 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 sale consideration of Rs. 15,00,000/- was directed to be

deposited/paid by the 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 to deposit/pay the balance sale consideration of Rs.

15,00,000/- or even calling upon the defendant to execute the sale deed

as per the judgment and decree passed by the trial Court dated

12.10.2013 till the present application under Section 148 CPC and

Section 28 of the Specific Relief Act 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. The reasons for delay are set out

hereinabove. The explanation which was given by the plaintiff, narrated

hereinabove, can hardly be said to be a sufficient explanation as to why

the plaintiff did not pay the balance sale consideration as per the

judgment and decree or even did not make an application within a

reasonable time under Section 148 CPC and Section 28 of the Specific

Relief Act seeking extension of time for making payment. If the plaintiff

9 was ready with the money payable towards the balance sale

consideration, he could have got the sale deed executed through power

of attorney after effecting deposit/payment. In absence of any sufficient

explanation, such a huge delay of 853 days ought not to have 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 specific

performance of an agreement are quite stringent. Equitable

considerations come into play. The Court has to see all the attendant

circumstances including if the vendee has conducted himself in a

reasonable manner under the contract of sale. It is further observed that

therefore, the Court cannot as a matter of course, allow extension of

time for making payment of balance amount of consideration in terms of

a decree. It is further observed that in absence of any explanation

whatsoever even by the decree holders as to why they did not pay the

balance amount of consideration as per the decree or did not make an

application under section 28 of the Specific Relief Act seeking extension

of time for making payment, equity demands that discretion be not

exercised in favour of the decree holders and no extension of time be

granted to them to comply with the decree.

7. Now so far as the reliance placed upon the decision of this Court in

the case of Kishor Ghanshyamsa Paralikar (D) through Lrs. (supra),

10 relied upon on behalf of the respondent is concerned, it is required to be

noted that in the said case before this Court, the total sale consideration

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 compromise

decree. There was a delay of five days only in paying the remaining

amount of Rs. 1,47,500/-. Therefore, in exercise of powers under

Section 28 of the Specific Relief Act, this Court allowed the extension of

time in favour of the decree holder to deposit the balance sale

consideration. In the said decision, in paragraph 11, it is observed as

under:

“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 judgment-debtors 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 Smt. Periyakkal and ors. Vs. Smt. Dakshyani1, 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

11 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.”

Therefore, as observed by this Court, the power under Section 28

of the Specific Relief Act is discretionary and the Court has to pass an

order as the justice may require.

8. Applying the law laid down by this Court in the aforesaid decision

to the facts of the case on hand and considering Section 28 of the

Specific Relief 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 in favour of the plaintiff to deposit the balance sale

consideration of Rs. 15,00,000/- by condoning the huge delay of 853

days, which as observed hereinabove has not been explained

sufficiently at all. As observed hereinabove, after the plaintiff was

directed to deposit the balance sale consideration of Rs. 15,00,000/-

within a period of two weeks from the date of ex-parte judgment and

decree dated 12.10.2013, which the plaintiff failed to deposit/pay, even

no application for extension of time under Section 148 CPC and Section

28 of the Specific Relief Act was made thereafter within a reasonable

time and was made after a period of 853 days. Nothing is on record that

12 in between any notice was given to the defendant to execute the sale

deed as per the judgment and decree on deposit of the balance sale

consideration. The application filed by the plaintiff under Section 148

CPC and Section 28 of the Specific Relief Act seeking extension of time

to deposit the balance sale consideration was hopelessly delayed. As

observed hereinabove, Section 28 of the Specific Relief Act seeks to

provide complete relief to both the parties in terms of a decree of specific

performance. Therefore, the trial Court failed to exercise the discretion

judiciously in favour of the defendant and 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 confirming the same and dismissing

the revision applications. Under the circumstances, the order passed by

the trial Court allowing the application of the plaintiff being I.A. No.

732/2016 seeking extension of time to deposit the balance sale

consideration deserves to be dismissed and I.A. No. 914/2017 filed by

the defendant – appellant under Section 28 of the Specific Relief Act to

rescind the agreement to sell dated 9.5.2012 deserves to be allowed.

However, at the same time, to strike the balance between the

parties the amount of Rs. 8,00,000/- paid by the plaintiff as an advance

is to be returned to the plaintiff with 12% interest per annum from

13 9.5.2012 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, both these

appeals succeed. The impugned common judgment and order dated

17.01.2022 passed by the High Court dismissing the revision

applications and the common order passed by the trial Court dated

29.06.2019 allowing I.A. No. 732/2016 filed by the plaintiff seeking

extension of time with a huge delay of 853 days and dismissing I.A. No.

914/2017 filed by the defendant to rescind the agreement to sell dated

09.05.2012 are hereby quashed and set aside. I.A. No. 732/2016 filed

by the plaintiff under Section 148 CPC and Section 28 of the Specific

Relief Act seeking extension of time with a huge delay of 853 days to

deposit the balance sale consideration stands dismissed. I.A. No.

914/2017 filed by the appellant – defendant under Section 28 of the

Specific Relief Act to rescind the agreement to sell dated 09.05.2012 on

non-payment of/deposit of the balance sale consideration by the plaintiff,

which the plaintiff was required to deposit/pay within a period of two

weeks from the date of ex-parte judgment and decree dated 12.10.2013,

stands allowed. Agreement to sell dated 09.05.2012 stands rescinded in

exercise of powers under Section 28 of the Specific Relief Act. However,

the appellant herein is directed to refund the amount of Rs. 8,00,000/- to

14 the plaintiff with 12% interest from 09.05.2012 till the actual payment,

within a period of six weeks from today, failing which it shall carry

interest @ 18% per annum.

10. The instant appeals are allowed accordingly in the aforesaid terms.

No costs.

…………………………………….J. [M.R. SHAH]

NEW DELHI; …………………………………….J. FEBRUARY 24, 2023. [C.T. RAVIKUMAR]

15