C.R.P.(NPD)No.2494 of 2008
1.M.R.Rathindran
2.R.Lalitha ... Petitioners Vs.
Dr.C.Rajagopal (Deceased)
1.B.V.Madhava Rao
2.B.V.Gururaj
3.C.V.Seethapadam
4.Geetha Bindhumadavan ... Respondents Prayer in C.R.P.(NPD)No.1195 of 2009: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the Fair and Decreetal order of the learned Additional District and Sessions Judge (Fast Tract Court III), Coimbatore, dated 24.11.2008 in I.A.No.270 of 2008 in O.S.No.792 of 2004.
Prayer in C.R.P.(NPD)No.2494 of 2008: Civil Revision Petition filed under
Article 227 of Constitution of India against the order passed in unnumbered I.A.SR.No.893 of 2007 in I.A.No.270 of 2005 in O.S.No.792 of 2004, dated 27.07.2007, by the III Fast Track Court, Coimbatore.
For Petitioner(s) : Mr.T.M.Hariharan in C.R.P.(NPD)No.1195 of 2009 : Mr.Yashod Varadhan Senior Counsel for Mr.V.Ramesh in C.R.P.(NPD)No.2494 of 2008 For Respondents : Mr.T.M.Hariharan for R2 in C.R.P.(NPD)No.2494 of 2008 : Mr.Yashod Varadhan Senior Counsel for Mr.V.Ramesh for R1 & R2 in C.R.P.(NPD)No.1195 of 2009 : No appearance for 1, 3 & 4 in C.R.P.(NPD)No.2494 of 2008 * * * C O M M O N O R D E R In view of the interconnectivity of the issue involved in these cases, by consent of both parties, a common order is bing passed.
Backdrop
2. For the sake of convenience, the parties are referred to in this judgment as per their litigative status in the original suit.
3. The plaintiffs filed O.S.No.792 of 2004, on the file of the Sub Court, Coimbatore, for specific performance of contract against the defendants on the strength of an agreement for sale executed by the defendants on 21.10.1994. The suit was decreed as prayed for on 17.12.2004 after contest, directing the defendants to execute the sale deed as per the sale agreement, after receiving sale consideration of Rs.24,22,000/- within one month from the date of decree and the defendants 1 to 4 to execute the sale deed pertaining to their undivided 7/8th share in the plaint schedule property in favour of the plaintiffs within one month from the date of decree. There was no appeal from the said decree.
C.R.P.No.2494 of 2008
4. The plaintiffs filed a petition in I.A.No.137 of 2005 under Section 151 CPC seeking two months time and on that petition, the Court extended the time till 16.03.2005. It is alleged by the plaintiffs that since the defendants did not come forward with the Patta Pass Book for the properties, which was required by the Registering Authority, they were constrained to seek further time. On 16.03.2005, another petition was filed by the plaintiffs in I.A.No.270 of 2005 under Section 151 CPC for grant of three weeks further time for having the sale deed executed, from 16.03.2005. The petition had been adjourned from time to time and finally on 18.06.2007, it was dismissed as infructuous under observation that the petitioners have requested time from 16.03.2005, but, two years have elapsed since the filing of the application.
5. Thereafter, the plaintiffs filed another petition under Order 9, Rule 9, Section 151 CPC to set aside the order of dismissal on 18.06.2007. The said petition was not numbered, but it was rejected on 27.07.2007 by the Court below by stating that since I.A.No.270 of 2005 was dismissed as infructuous, restoring the said petition does not arise. The said order is challenged before this Court by the plaintiffs in C.R.P.No.2494 of 2008.
C.R.P.No.1195 of 2009
6. The defendants filed a petition in I.A.No.270 of 2008 under
Section 28(1) of Specific Relief Act read with Section 151 CPC for rescission of contract and also for a direction to restore the possession in their favour. In the affidavit, they have alleged that the plaintiffs did not pay the amount as directed by the decree and that the time fixed by the Court expired on 16.01.2005. However, the plaintiffs filed petition for extension in I.A.No.270 of 2005, but, it was dismissed. The defendants preferred C.R.P.No.558 of 2006, before the High Court, pending enquiry in I.A.No.270 of 2005 for a direction for expeditious disposal of the said interlocutory application. The High Court directed the Trial Court to pass appropriate orders in the application for extension of time.
6.1. It is further averred that the area, where the property in question is situated, has developed to a greater extent, that its value has gone up several times, that important bye-pass roads also have been provided, that therefore, the contract relied on by the plaintiffs have to be rescinded, that the plaintiffs have not complied with the terms of the decree, that they have deliberately delayed their obligations and that the same resulted in serious inconvenience to the petitioners.
7(i). The plaintiffs filed a counter to the said petition by stating that the other parties to the sale agreement as well as suit have not been impleaded purposely and on that score, the petition is liable to be dismissed, that the property was delivered in part performance of the sale agreement and the plaintiffs are in possession, that since the defendants did not produce Patta Pass Book to complete the sale, it could not be done, that the plaintiffs have been ready with balance sale price, but the learned counsel appearing for the plaintiffs died during May 2007, hence, they were not informed about the hearing date and subsequently, they came to know that the petition was closed on 18.07.2007 and they are taking steps to file C.R.P. before the High Court.
7(ii). At this juncture, the petitioners filed the present petition on untenable grounds, that he is not entitled to seek for cancellation of decree, the plaintiffs have already filed the balance sale price and no order has been passed to issue challon, the plaintiffs have not violated or flouted the decree passed by the Court, the averments that the property is situated in a developed area is false, that these respondents alone made himself in the property by putting fence around the property reclamation of the sale, etc., the allegations that the value has gone up several times and important bye-pass roads have been provided are false and that even now the plaintiffs are ready to deposit the amount.
8. After hearing both parties, the learned Fast Track Judge-III, Coimbatore, dismissed the application on 24.11.2008, directing the plaintiffs to deposit the sale price of Rs.24,22,000/- with interest at the rate of 12% from 17.01.2005 till the date of deposit, on or before 01.12.2008. The said order is challenged before this Court in C.R.P.No.1195 of 2009 by the defendants.
9. It is the first and foremost contention of Mr.T.M.Hariharan, learned counsel appearing for the defendants that the order dismissing the application for rescission of contract and extension of time is misconceived which transgresses every point of limitation. It is his further contention that the same Court had already rejected the unnumbered interlocutory application to restore I.A.No.270 of 2005 and thus, it has become functus officio and the same has been passed without jurisdiction. It is also stated that proceedings are abated and the value of the property has gone up manifold and the order for extension of time would be prejudicial to the defendants. He also urges that the petition under
Section 28(1) of the Specific Relief Act (hereinafter referred to as 'Act') is not at all time barred.
10. Conversely, Mr.Yashod Varadhan, learned Senior Counsel appearing for the plaintiffs, would contend that the Court does not become functus officio, that as far as the suit for specific performance of contract is concerned, the Court has got ample powers to extend the time after the time stipulated in the decree got expired, that the application for rescission of contract is time barred, that there is no legal infirmity in the order challenged before this Court and that the extension of time by the Trial Court is not unlawful.
11. On 01.02.2005, the first defendant Dr.C.K.Rajagopal, died. The plaintiffs state that since the particulars of his legal representatives were not furnished to them, they could not be brought on record. However, the legal representatives were impleaded as respondents No.6 to 10 in E.P.No.16 of 2009 filed on 03.07.2009 by the plaintiffs, as per the brief notes submitted on behalf of the defendants. While the plaintiffs are blamed that they have not taken steps to implead the legal representatives for the first defendant, the defendants themselves failed to implead them in I.A.No.270 of 2008. However, it could not be a technical defect for rejection of their claim.
12. In order to have an elaborate discussion on the scope of
Section 28(1) of the Act, its extraction becomes inevitable which is as follows:
"28(i). 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 of 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 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."
13. As for the abatement of the proceedings initiated by the plaintiffs for non-impleading of legal representatives for the deceased / first defendant, a Constitution Bench Judgment of the Supreme Court reported in (1963) 3 SCR 858 : AIR 1963 SC 553 (Ram Sarup and 3 others v. Munshi and Others) is cited on behalf of the defendants, wherein, it is held that a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated. The position is followed in (1973) 1 SCC 179 (Dwarka Prasad Singh and others v. Harikant Prasad Singh and others) wherein, it is held that when one of the appellants died and his legal representatives were not impleaded, then the other surviving appellants could not be heard.
14. The learned counsel appearing for the defendants would garner support from a decision of the Apex Court reported in (1999) 4 SCC 702 (V.S.Palanichamy Chettiar Firm v. C.Alagappan and another) wherein, it is observed as follows:
"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. 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 after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court. It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree. Therefore, granting time at this stage would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though the provisions of
Article 54 of the Limitation Act may bot be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever was given by the respondent 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 respondent decree-holders and no extension of time be granted to them to comply with the decree."
15. In (2007) 14 SCC 26 (Chanda (dead) through LRs. v. Rattni and another), it is held that although the power to annul the decree exists, yet
Section 28 provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time even though the trial court had earlier directed in the decree that payment of balance price to be made by certain date and on failure, the suit to stand dismissed. It is further held as follows:
"In the present case, the stand now taken by the appellant-plaintiff that there was scope for extension of time and mere non-deposit did not deprive the appellant from getting any relief, was not pleaded before the trial Court and the High Court. The only stand taken was that there was no direction to pay within a particular time. This plea is clearly unsustainable and untenable and has been rightly rejected."
16. The earlier decision on this point, is of the Supreme Court, reported in AIR 1980 SC 512 : 1980 1 SCC 630 : 1980 2 SCR 293 (K.Kalpana Saraswathi v. P.S.S.Somasundaram Chettiar) in which the Supreme Court was pleased to extend the time for deposit of the sale price by six months with interest at the rate of 11%. By means of this judgment, a principle has been formulated that even at the stage of appeal before the Supreme Court, the time to make deposit could be extended to enable the plaintiffs to get advantage of the agreement to sell in his favour. The Supreme Court has also stipulated that on fulfilling the conditions, the appeal will stand allowed and in the event of non-compliance, the same will stand dismissed with costs.
17. A Full Bench of the Supreme Court in a decision reported in (1997) 9 SCC 217 : 1997 II MLJ (SC) 88 (Sardar Mohar Singh through power of Attorney Holder, Manjit Singh v. Mangilal alias Mangtya) has dealt with the scope and import of
Section 28(1) of the Act with reference to the powers of the Court exercisable thereon. The following is the relevant portion of the said judgment, which is reproduced below:-
"4. From the language of sub-section (1) of
Section 28, it could be seen that the court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that
Section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial Court retains its power and jurisdiction to deal with the decree of specific performance. It would also be clear that the court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. In other words, the court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. It is true that the respondent has not given satisfactory explanation of every day's delay. It is not, unlike Section 5 of the Limitation Act, an application for condonation of delay. It is one for extension of time. Under these circumstances, the executing Court as well as the High Court had exercised discretion and extended the time to comply with the conditional decree. Accordingly, we do not find any valid and justifiable reason to interfere with the order passed by the High Court confirming the order of the executing court when in particular, the High Court has further enhanced a sum of Rs.16,000/- to compensate the petitioner for loss of enjoyment of the money.
18. The Supreme Court has distinguished the application for extension of time for deposit of sale price by the plaintiffs, with the petition filed under
Section 5 of the Limitation Act and that principle to be borne in mind. While dealing with the petition under
Section 5, it need not be compared to the petition under
Section 28(1) since it is an application for extension of time. As per this decision, the Court has got discretion to extend the time over conditions contained in the decree for specific performance. It is stressed that the Court after passing of decree for specific performance does not become functus officio."
19. The Kerala High Court, while discussing a case reported in 1996 AIHC 2302 (D.Ramesh v. John K. Joseph) under
Section 28 of the Act has held as follows, citing a decision of the Supreme Court:-
"Whether the petition for extension filed by the decree-holder falls either under
Section 28 of the Specific Relief Act or under Section 148 of the Code of Civil Procedure, what is required to be surveyed is the substance of the petition and not the form in which it is laid. What the decree-holder supplicated for, in sum and substance is the extension of the period fixed for payment of the balance sale consideration. This relief can be moulded either under
Section 28 of the Specific Relief Act or under Section 148 CPC by the court which passed the decree or the executing court as the case may be. "(T)he Court which passes a decree for specific performance retains control over the decree even after the decree has been passed", so held by Mathew, J. in Hungerford Investment Trust Ltd (in voluntary liquidation) V. Haridas Mundhra and others AIR 1972 SC 1826."
20. In another case reported in AIR 2001 Kerala 205 (Chithambaran Ponnappan v. Viswambaran and another), the Kerala High Court has held that it is only when there is wilful default on the part of the decree-holder to make the deposit, that the Court would be justified in refusing extension of time and that there exists power on the part of the execution Court to extend the time even without application is clear from the decision in K.Kalpana Saraswathi's case (supra).
21. In (1994) 2 SCC 647 (Ramankutty Guptan v. Avara) the Supreme Court has held that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The Court retains control over the decree even after the decree has been passed. It was open to the Court to exercise the power under
Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for.
22. From the above said decisions, right from the decision in K.Kalpana Saraswathi's case, it has been repeatedly held by the Supreme Court that the Court which passed the decree for specific performance of contract never becomes functus officio, that passing of such decree is a stage in preliminary decree and when no default could be inferred on the part of the decree-holder, extension of time could not be refused to him, and that even without a formal application for extension of time, the time could be extended by the Court. The Supreme Court in the said case has observed that it is perfectly open to the Court in control of suit for specific performance to extend the time for deposit and the Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour.
23. As far as the facts of the present case are concerned, while the time granted in the decree was about to expire the plaintiffs filed application in I.A.No.137 of 2005 on which two months time was granted and another application in I.A.No.270 of 2005 was filed for further extension of time which came to be dismissed as infructuous. Afterwards, they filed application to restore the said application and the said petition was also rejected. The above said circumstances would indicate that the plaintiffs have not been remaining lethargic in having the sale executed in their favour. They had been pursuing the proceedings.
24. As far as the dismissal of I.A.No.270 of 2008 is concerned, the main ground for dismissal is on the point of limitation, since the petition has been filed out of time. In this connection, the learned counsel appearing for the defendants would submit that the cause of action for filing the petition under
Section 28(1) is, since the petition filed by the plaintiffs for extension of time was dismissed on 18.06.2007 and the unnumbered I.A. suffered rejection on 27.07.2007, I.A.No.270 of 2008 was filed on 22.04.2008 within three years from the accrual of the cause of action and it is well within time.
25. This Court is not in acceptance with the said contention. The cause of action would not start from the date of the dismissal or rejection of the above said interlocutory applications, but it starts from the date of passing of the decree i.e. from 17.12.2004. Within three years from the date of decree either of the parties, who seeks relief under
Section 28(1) of the Act has to file the petition for rescission of contract.
26. In this connection, both sides relied upon a decision of this Court reported in (2004) 1 MLJ 716 : CDJ 2004 MHC 504 (G.S.Chakravarthi Asokar alias G.S.Ashokar v. Therasitta Santhi) wherein this Court has held that the application for rescission of contract must be filed within the period of limitation of three years. In the said case, the decree was passed on 29.06.1998, but the petition for rescission of contract was filed on 07.11.2002 beyond the date when the alleged cause of action has arisen.
27. In AIR 1977 SC 282 = 1976 (4) SCC 634 (Kerala State Electricity Board v. T.P.Kunhaliumma) is referred to in the decision reported in G.S.Chakravarthi Ashokar @ G.S.Ashokar case, the Supreme Court has held that an application for rescission of contract has to be filed within three years from the date when the right to apply for rescission accrues.
28. In the considered view of this Court, the right to apply for the defendants accrued on the passing of the decree for specific performance of contract. No right could be stated to accrue from the date of rejection or dismissal of the interlocutory applications, which have no bearing on the filing of necessary petition by the defendants under
Section 28(1) of the Act. In these circumstances, it is held that the petition in I.A.No.270 of 2008 has not been filed within time and the same is barred by limitation.
29. When the petition for rescission of contract faces dismissal at the hands of the Trial Court, the necessary consequent relief provided for to the plaintiffs is, extension of time, for which the above said illuminating legal pronouncements have to be followed. As per the decisions, the power of the Court to extend the time is always existing and the same could be exercised even in the appellate stage by the Court. Since the Court is very much competent to extend the time pursuant to the dismissal of the petition for rescission of contract, directing deposit of the sale consideration along with interest within time frame is lawful. As per the view in Sardar Mohar's case (supra), direction to pay interest at the rate of 12%, to compensate the defendants for loss of enjoyment of money, is lawful.
30. Whether the proceedings in the interlocutory applications for extension of time could be revived overlooking the question of abatement or not, still the orders and directions that could very well be passed in the petition under
Section 28(1) of the Act would enable the decree-holder to get his remedy as per the decisions of the Apex Court.
31. In such view of the matter, this Court is of the considered opinion that direction granting time for the decree-holder to deposit amount along with the interest within a fixed time is not infirm, which deserves to be confirmed and it is accordingly confirmed.
32. As far as C.R.P.No.2494 of 2008 is concerned, the plaintiffs have stated that since the defendants did not supply the particulars as regards legal representatives for the deceased first defendant, they could not be impleaded. However, they have impleaded the legal representatives in the execution proceedings. Since the order has been passed in I.A.No.270 of 2008, extending the time for deposit of balance sale consideration is confirmed by this Court, passing orders in the application for extension of time would be superfluous. Hence, C.R.P.No.2494 of 2008 has to be disposed of in view of the confirmation of the order in I.A.No.270 of 2008.
33. In fine, C.R.P.No.1195 of 2009 is dismissed confirming the order passed by the Trial Court in I.A.No.270 of 2008 and C.R.P.No.2494 of 2008 is disposed of in view of the confirmation of order passed in I.A.No.270 of 2008. Consequently, connected miscellaneous petition is closed. No costs.
srm To The Fast Tract Judge-III, Coimbatore