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1996 DIGILAW 652 (ALL)

Braham Pal Singh v. Xth Addl. District Judge

1996-05-21

A.B.SRIVASTAVA

body1996
JUDGMENT : A.B. SRIVASTAVA, J. 1. Affidavits having been exchanged between the parties to this writ petition, with their consent the petition is being finally disposed of and the learned Counsel for the parties have been heard. 2. By means of this writ petition, the Petitioner-Plaintiff has sought quashing of an order dated 27.5.1992 of the IInd Munsif and revisional order dated 25.10.1993 of the Additional District Judge, Bulandshahr rescinding a contract for a decree for specific performance of which was passed by the courts below. 3. The suit was filed by the Petitioner-Plaintiff against the Respondent Nos. 3 and 4 with allegations that the Respondent No. 4 Chandrabhan had entered into an agreement with him on 18.4.1984 to sell immovable property for Rs. 11,832 of which Rs. 5,000 was paid in advance. Instead of executing the sale deed in favour of the Petitioner, the Respondent No. 4 executed a sale deed in favour of Respondent No. 3 Smt. Saroj who had knowledge of the agreement in favour of the Plaintiff. The trial court decreed the suit. On appeal, the said decree was affirmed on 2.11.1988 by the appellate court to the following effect: The suit of the Plaintiff for specific performance of the agreement to sale dated 18.4.1984 is decreed with costs. The Defendant No. 1 Chandrabhan is directed to execute a sale-deed in respect of the disputed plot in favour of the Plaintiff-Bhrahmpal Singh and the Defendant No. 2 Smt. Saroj is directed to Join in the conveyance. The sale-deed shall be executed in 30 days on the Plaintiff paying the balance consideration amount Rs. 6,832 and his bearing the court fee stamp scribing charges and the registration charges. The said amount of Rs. 6,832 shall be payable to Smt. Saroj Defendant No. 2 which will be adjusted against the consideration money paid by her to Chandrabhan, Defendant No. 1 in the sale-deed dated 25.6.1984 in case of default by the Defendant the Plaintiff shall be entitled to get the sale-deed executed through court at the costs and expenses of Defendants. The Defendants shall be liable to deliver possession of the disputed land to the Plaintiff-Appellant at the time of the execution of the sale-deed. 4. The Defendants shall be liable to deliver possession of the disputed land to the Plaintiff-Appellant at the time of the execution of the sale-deed. 4. When an application for execution was moved by the Petitioner in the year 1989, the Respondent No. 3, i.e., subsequent purchaser opposed the same, he moved an application u/s 28, Specific Relief Act (Annexure 6) to rescind the contract on the ground that the Petitioner did not pay balance consideration within thirty days despite oral request and serving a notice allowing time upto 9.2.1989 to him, and as such contract is liable to be rescinded and the Respondent No. 3, as well as vendor Respondent No. 4, relieved from the liability of executing the sale-deed. This application was allowed by the trial court, and revision against the same was dismissed by the learned Additional District Judge, by the two Impugned orders. 5. The contention on behalf of the Petitioner is that the courts below acted illegally in the exercise of their Jurisdiction in coming to the conclusion that the Petitioner committed default in complying with the terms laid down in the appellate court decree as to deposit of the balance sale consideration and getting the sale-deed executed and that provisions of Section 28 of the Specific Relief Act are directory and not mandatory in nature. The contention on behalf of the contesting Respondent No. 3 on the other hand is that the conditions in the decree were mandatory, the courts below have ordered the contract to be rescinded on a positive finding to the effect that the Petitioner did not perform his part of the contract although, the Respondents were available and willing to execute the sale-deed and also gave a notice to the Petitioner in that regard. 6. There can be no two opinions on the point that provision in Section 28 of the Specific Relief Act as to rescission of contract for sale of immovable property in certain circumstances, provides an equitable jurisdiction to the Court. A Court is not obliged in each case to rescind a contract in case the period allowed by the decree to pay purchase money is not adhered to. The condition as to the period of payment of purchase money in a decree for specific performance is directory and not mandatory in nature. A Court is not obliged in each case to rescind a contract in case the period allowed by the decree to pay purchase money is not adhered to. The condition as to the period of payment of purchase money in a decree for specific performance is directory and not mandatory in nature. It is capable of being extended and the intention of the decree-holder to get the period extended could be inferred in suitable cases by circumstances also, in absence of a specific application for the purpose. 7. In the instant case, it is true that the Petitioner decree-holder did not deposit the balance sale consideration within 30 days from 2.11.1988, the date of appellate decree, but he gave an application that he could not do so as on being contacted for the purpose, after the appellate decree, the Respondents told him that they would be preferring appeal to the High Court. To deny this contention, the Respondent No. 4 Chandrabhan who was to execute the sale-deed, never appeared in the witness box. As far as Respondent No. 3 is concerned, she was merely required to Join the vendor being subsequent purchaser with notice of agreement in favour of the Petitioner. She, on her own, could not have executed sale-deed till the Respondent No. 4 was available and willing to do so. Merely because she was to receive amount to be deposited in lieu of the consideration she had paid to the Respondent No. 4, the said Respondent could not be eliminated as vendor. On the own showing of Respondent No. 3 before the courts below, the Respondent No. 4 was even not available. The alleged notice to the Petitioner expressing readiness and willing to execute the sale-deed was also not on behalf of the Respondent No. 4 in these circumstances, the notice alleged to have been served by refusal, by the Respondent No. 3 on the Plaintiff, could not be treated as a circumstance to disbelieve the Petitioner that he was misled in not depositing the amount in time because of oral representation of the Respondents that they were intending to go in appeal. 8. 8. In these circumstances, the courts below were not justified in concluding that the Petitioner decree-holder had defaulted in paying purchase money so as to disentitle him to deposit the same at a later period of time, and render him liable to rescission of the contract in the instant case, it is apparent from the record that the Petitioner while moving the execution application had submitted a tender for the amount, he was required to deposit as the balance amount. There being no evidence to show that the said tender was not passed, It would be deemed to be a request allowed for extending the time, and coupled with the circumstance that the application for rescission was moved after filing of the execution and that too by only the Respondent No. 3 Indicate: the absence of any Justifiable ground to rescind the contract and deprive the Petitioner of the fruits of the decree. Consequently, the Impugned orders of the two courts below are unsustainable and deserve to be quashed. 9. The writ petition is accordingly allowed and the Impugned orders dated 25.7.1992 and 25.10.1993 of the learned Munsif and the Additional District Judge are hereby quashed. 10. There will be no order as to costs.