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2013 DIGILAW 1862 (RAJ)

Bakhtawar Singh v. Inder Kaur

2013-10-23

VINEET KOTHARI

body2013
JUDGMENT Hon'ble Dr. KOTHARI, J.—The petitioner - decree holder Bakhtawar Singh S/o Shri Ganda Singh has preferred this writ petition under Article 226 of the Constitution of India aggrieved by the order Annex.4 dtd. 6.12.2010 passed by the learned Additional District Judge No.1, Hanumangarh in execution proceedings in Civil Misc. Case No.14/2007 - Bakhtawar Singh vs. Mst. Inder Kaur, whereby the learned Executing Court of Additional District Judge No.1, Hanumangarh refused to execute the decree in favour of the petitioner for specific performance for purchase for 4 bighas of agricultural land which was decreed in favour of the petitioner - plaintiff in Suit No.113/2002 - Bakhtawar Singh vs. Mst. Inder Kaur on 16.8.2003. 2. The decree dtd. 16.8.2003, a copy of which is placed on record as Annex.1 directed the plaintiff - decree holder to deposit the balance consideration of Rs.15,000/- within two months with the Court for getting the specific performance of the Agreement in question dtd. 8.6.1989 and unless the judgment debtor - defendant obtained the say for the higher Court within a period of six months from the said decree dtd. 16.8.2003, the decree holder was entitled to get the decree executed and the conveyance-dead executed by the trial Court itself in his favour and if the decree holder fails to deposit the said consideration of Rs.15,000/- with additional amount of Rs.35,000/-, then the decree holder will be only entitled to the refund of the amount of Rs.35,000/- of the consideration already paid against the total compensation of Rs.52,000/- from the judgment - debtor and in the meanwhile the defendant was restrained from alienating the suit property further. 3. After the said decree was made in favour of the plaintiff - petitioner on 16.8.2003, the decree holder obviously did not deposit the said amount of Rs.50,000/- under the agreement dtd. 8.6.1989, but only later on field an application under Section 148 C.P.C. on 14.2.2007 after approximately about 3 and ½ years of the said decree seeking an extension of the aforesaid time of two months for deposit of additional compensation by him in the Court. The defendant - judgment debtor, Ms. Inder Kaur opposed and contested the said application under Section 148 C.P.C. and by the impugned order dtd. 6.12.2010, the learned Additional Dist. The defendant - judgment debtor, Ms. Inder Kaur opposed and contested the said application under Section 148 C.P.C. and by the impugned order dtd. 6.12.2010, the learned Additional Dist. Judge No.1, Hanumangarh rejected the said application holding that no sufficient ground was made out for extension of the time period of two months under section 148 C.P.C. and therefore, canceling or rescinding the agreement dtd. 8.6.1989 between the parties itself, the decree dtd. 16.8.2003 was nullified and the defendant - judgment debtor was directed to refund the said excess amount of Rs.37,000/- (Rs.52000/- was consideration and Rs.37,000/- was paid as advance amount) which was originally received by the defendant under the said agreement from the plaintiff. Aggrieved by the order dtd. 6.12.2010, the decree holder - petitioner Bakhtawar Singh has approached this Court by way of present writ petition, which was filed on 8.1.2011. 4. While issuing notices of the writ petition, a coordinate bench of this Court on 2.2.2011 and directed the status quo to be maintained and by another order dtd. 18.3.2013, both the learned counsels were given time to take instructions in the matter as to whether on payment of some further and additional compensation, the plaintiff - petitioner can seek execution of decree in the suit for specific performance by extending time under Section 148 C.P.C. To the later order dtd. 18.3.2013, the learned counsel for the respondent Mr. V.K. Agarwal today has submitted that his client has instructed him that he is not agreeable to the said proposal and therefore, the writ petition itself was head on merits. 5. During the pendency of this writ petition, it appears that the petitioner - decree holder Bakhtawar Singh as well as the judgment debtor Ms. Inder Kaur have expired and by order dtd. 15.2.2013 and 20.5.2013, legal representatives of both the parties were taken on record and now such L.Rs. only are contesting the present writ petition. 6. The learned counsel for the petitioner, Mr. Inder Kaur have expired and by order dtd. 15.2.2013 and 20.5.2013, legal representatives of both the parties were taken on record and now such L.Rs. only are contesting the present writ petition. 6. The learned counsel for the petitioner, Mr. Hemant Dutt has forcefully submitted that the learned court below has wrongly invoked Section 28 of the Specific Relief act, since the said provision, which is quoted below, permits such an agreement on the basis of which specific performance of the contract is awarded to be cancelled only on the application to be filed by vendor or lessor and in the absence of any such application by the respondent - Vendor - defendant - judgment debtor in the impugned order dtd. 6.12.2010 for rescinding the said agreement dtd. 8.6.1989 itself. He also urged that the Executing Court could not cancel the decree itself dtd. 8.2.2003 as has been done in the impugned order during the execution proceedings. He further submitted that against the original decree dtd. 16.8.2003, the defendant, had not filed any appeal before the higher Court and therefore, the decree dtd. 16.8.2003 had become final in favour of the decree holder and in the circumstances of the case, namely that for the period between the date of decree dtd. 16.8.2003 and the date of application under Section 148 Cr.P.C. dtd. 14.2.2007, the plaintiff - decree hlder suffered some mental disorder and therefore, he could not deposit the said additional amount of Rs. 50,000/- as directed by the learned trial Court in the decree within the stipulated time period of two months, therefore, the time limit ought to have been extended by the learned Executing Court which could be done even after the original time had expired under Section 148 of the C.P.C. He relied upon the decisions of Hon'ble Supreme Court in the case of Banarsi and ors. vs. Ramphal reported in (2003) 9 SCC 606 , D.V. Paul vs. Manisha Lalwani reported in (2010) 8 SCC 546 and Yashoda vs. K. Nagarajan (1996) 11 SCC 228 . 7. Per contra, Mr. V.K. Agarwal, learned counsel appearing for the respondent - judgment debtor, LRs. of Mst. vs. Ramphal reported in (2003) 9 SCC 606 , D.V. Paul vs. Manisha Lalwani reported in (2010) 8 SCC 546 and Yashoda vs. K. Nagarajan (1996) 11 SCC 228 . 7. Per contra, Mr. V.K. Agarwal, learned counsel appearing for the respondent - judgment debtor, LRs. of Mst. Inderkaur urged that in the absence of any evidence led by the plaintiff - decree holder, the application under Section 148 C.P.C. seeking extension of time was rightly rejected by the learned executing court, in its discretion and no interference is called for under Article 227 of the Constitution of India. He also relied upon the decision of the Hon'ble Supreme Court in the case of V.S. Palanichamy Chettiar Firm vs. C. Alagappan reported in (1999) 4 SCC 703 and submitted that the decree of specific performance dtd. 16.8.2003 was a discretionary relied under the provisions of Specific Relief Act, 1963 and no evidence was led by the plaintiff decree holder to satisfy the Court for long lapse of 3 and ½ years for not seeking the execution of the decree of depositing the stipulated difference amount of part of consideration and additional compensation as directed in the decree within the stipulated time frame of two months. Even the application under Section 148 C.P.C. was filed on 14.2.2007 after 3½ years of the decree, which itself came to be rejected after about 3½ years of the decree, which itself came to be rejected after about 3 years on 6.12.2010. He submitted that the legal representatives of judgment debtor are ready and willing to refund the said amount of Rs.37,000/- as directed by the Court below in the impugned order but the specific performance of the decree by transfer of land has rightly been refused by the executing court below. 8. I have heard the learned counsels at length and perused the provisions and the judgments cited at the Bar. Section 28 of the Act as well as Section 148 of C.P.C. are quoted below for ready reference: Section 28 - Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. Section 28 of the Act as well as Section 148 of C.P.C. are quoted below for ready reference: Section 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 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. (2) Where a contract is rescinded under sub-section (1), the court— (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to he vendor or lessor; and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:— (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possess-ion, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this Section shall be in the discretion of the Court." Section 148 – Enlargement of time Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, [not exceeding thirty days in total] even though the period originally fixed or granted may have expired." 9. Section 148 C.P.C. obviously gives discretion to the court to extend the time fixed by the court for the doing of any act prescribed or allowed by this Code for a limited stretch of 30 days. The world at the end "even if the period originally fixed has expired" does not mean that after years of such time frame fixed having expired, the Court can add that expired period also and at the time of deciding the application under Section 148 C.P.C. can add and give further period of 30 days. It is only if appropriate application is filed before the expiry of the originally fixed period seeking extension of time period and sufficient ground is made out for execution of time period, that the court can, in exercise of its discretion extend such time period but not beyond the period of 30 days. There is thus obviously a restriction on the exercise of even the discretion of the Court and Section 148 does not provide endless extension of time period for doing any act or thing as originally fixed. 10. It is well settled that the decree of specific performance itself is a discretionary relief granted to the plaintiff based on the agreement well proved by him, subject to his readiness and willingness established before the trial Court comply with his part of the agreement before the Court, the Court can either grant decree for specific performance for transfer of the property or may even direct monetary compensation to be paid to the plaintiff. 11. 11. In the present case, the trial Court had specifically directed higher payment of compensation of Rs.50000/- by the plaintiffs including the part of consideration of Rs.15,000/- which was not paid by him against the consideration of Rs.52,000/- (Rs.37,000/- having been paid in advance and Rs.15,000/- not paid by him at the time of agreement) and thus a sum of Rs.50,000/- was directed to be paid within a period of two months from the date of decree dtd.16.8.2003. Alternative directions were also duly stated in the decree itself that unless the defendant is able to obtain a stay from the higher Court in appeal, if any, filed by the defendant, the plaintiff will only be entitled to the refund of the balance amount of Rs.37,000/- i.e. the advance already paid to the defendant at the time of agreement. The plaintiff-petitioner obviously did not take any step for deposit of the said money with the Court within the stipulated time of two months nor the defendant appears to have filed any appeal against the decree and therefore, the question of grant of any stay in her favour could not arise. 12. On 14.2.2007, when the plaintiff filed an application under Section 148 of the C.P.C., the only averment made in the said application, a copy of which is placed on record as Annex.2 in para 2 of the application is that the plaintiff, Bakhtawar was of 75 years of age and on account of mental disorder from 20.8.2003 (four days after the decree) for his treatment, he went to U.P. to his relatives, where he got the treatment from "Desi Neem Hakim" and since he was not present at the same place, therefore, he could not deposit the said amount within the stipulated time frame of two months and in these circumstances, time period deserved to be extended. Not only that no evidence was produced by the plaintiff Bakhtawar Singh with the said application under Section 148 C.P.C. before the said executing court, but in the application dtd. 14.2.2007, Annex.2, he does not even say as to how much more time he needs to comply with the conditions of decree for deposit of the amount. Not only that no evidence was produced by the plaintiff Bakhtawar Singh with the said application under Section 148 C.P.C. before the said executing court, but in the application dtd. 14.2.2007, Annex.2, he does not even say as to how much more time he needs to comply with the conditions of decree for deposit of the amount. The said application was contested by the defendant Smt. Inder Kaur by filing a reply to the same and she stated in reply to para 2 that not only the plaintiff has not led by any evidence for his treatment of mental disorder as alleged but his three sons Parsa, Gurdeep Singh and Gurdas Singh were living as a joint family there and the plaintiff had deliberately not deposited the amount with the court below and therefore, he was not entitled to the grant of discretionary relief of extension of time at such belated stage. The said reply was filed by the defendant on 3.3.2010. 13. Merely because the learned Executing Court in the title of the impugned order as well as in the body thereof has referred to Section 28 of the Act which permits cancellation of the agreement in the case of specific performance which provision could also very well be invoked by the Court in the circumstances of this case and the reference to such provision does not vitiate the order as contended by the learned counsel for the petitioner. Section 28 of the Act envisages a situation where a decree of specific performance where a decree of specific performance has been made in favour of the plaintiff - purchaser who does not pay the amount in question as directed by the Court that on the application filed by the defendant - vendor, the Court may rescind the contract in question itself on the basis of which the decree for specific performance was granted by it. In the present case, the plaintiff admittedly did not deposit the amount of part consideration and additional compensation in compliance of the conditions for grant of such specific performance and application for extension of time under Section 148 C.P.C. having been rejected, the Court could very well treat the Agreement itself as rescinded even though the defendant-vendor may not have filed any application for rescinding of contract, the Court could very well direct that the decree had become non-executable n view of conditions having not been satisfied by the plaintiff-decree holder. If the court below has further directed that the agreement itself is rescinded even without application filed by the defendant, this Court does not find any error in the impugned order because the very substratum of agreement and basis for grant of decree was lost and the decree became infructuous and non-executable in view of the non-compliance of the conditions by the plaintiff decree holder. 14. The exercise of direction under Section 148 C.P.C. cannot be mandatorily invoked in favour of the plaintiff - decree holder as a matter of right. As stated above, it will always depend upon the facts and circumstances of each case. This Court does not find anything wrong in the impugned order dtd. 6.12.2010 of the Court below in the face of the fact that the plaintiff - decree holder Bakhtawar Singh utterly failed to lead any evidence whatsoever before the Court below for the satisfaction of the Court that there was a good and sufficient reason for remaining inactive and not complying with the condition after a delay of 3 and ½ years from 16.8.2003 to 14.2.2007 when he filed the present application under Section 148 C.P.C. 15. The application under Section 148 C.P.C. itself was filed with the vague and bald averments of the plaintiff - decree holder about the mental disorder. The date of decree is 16.8.2003 and he says in para 2 of the application that 4 days thereafter on 20.8.2003, he says that he suffered mental disorder. What was the mental disorder, what was the exact disease and extent thereof, what was the medical treatment he took etc. etc. is neither specified in the application nor any evidence has been led by him in support of his vague averments made in the application under Section 148 C.P.C. filed before the Court below. What was the mental disorder, what was the exact disease and extent thereof, what was the medical treatment he took etc. etc. is neither specified in the application nor any evidence has been led by him in support of his vague averments made in the application under Section 148 C.P.C. filed before the Court below. The application obviously could not inspire any confidence in the Court below nor does it impress this Court either. Therefore, the Court below was perfectly justified in rejecting the said application in exercise of its discretion under Section 148 C.P.C. and was also justified in rescinding the contract itself in view of Section 28 of he Act is well within the Court's jurisdiction and filing of application by the defendant in such a case is not a sine qua non or mandatory for invoking that provision. Article 227 of the Constitution of India cannot be invoked in the present case to upset the discretionary order as no sufficient ground for that has been made out by the petitioner. 16. The case laws cited by the learned counsel for the petitioner are distinguishable on the basis of it. In the case of Banarsi and ors. vs. Ramphal reported in (2003) 9 SCC 606 , the Hon'ble Supreme Court in a suit for specific performance of contract in which relief of compensation or refund of money deposited was granted by the Court refusing the specific performance itself, the Court held that the plaintiff could also be said to be an aggrieved person and could file an appeal by way of cross-objections in an appeal filed by the defendant even against the grant of relief to the plaintiff by way of compensation or refund and in para 13 of the judgment, the Court has only reiterated this legal position holding that in the absence of such cross-appeal preferred or cross-objection taken by the plaintiff - respondent, the first appellate Court did not have jurisdiction to modify the decree in the manner in which it has been done and it could not grant the decree for the specific performance of agreement itself. Para 13 of the judgment is quoted below for ready reference: "13. Para 13 of the judgment is quoted below for ready reference: "13. We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent, the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants, the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not to set aside the decree to the extent to which it was in favour of the appellant but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection." 17. This case is clearly distinguishable inasmuch as such a proposition cannot be applied to the facts of the present case. Filing of application under Section 28 of the Act by the defendant is in the circumstances where the plaintiff fails to deposit the money as directed in the decree. Here the plaintiff has filed only an application under Section 148 C.P.C. for extension of time, which has been refused upon a contest by the defendant and while dismissing the said application under Section 148 C.P.C., the Court also invoked the Section 28 of the Act to rescind the agreement in question itself without any separate and specific application by the vendor - defendant Mst. Inder Kaur. There was no need for any separate application on behalf of the defendant to move any such application, since the plaintiff only claimed extension of time as a matter of right under Section 148 C.P.C. having not led any evidence in support of basis for such extension, therefore, even if the contract was not rescinded, the learned trial court could very well refuse the execution of the decree in question holding it to be a in executable decree. 18. 18. The other case relied upon by the learned counsel for the petitioner, Mr. Hemant Dutt in the case of D.V. Paul vs. Manisha Lalwani (2010) 8 SCC 546 is only about exercise of discretion under Section 148 C.P.C. and the Hon'ble Apex Court in para 26 clarified that such a provision is only discretionary and is intended to be exercised to meet the ends of justice. In para 32 of the judgment, the Hon'ble Apex Court has clearly observed that the power to fix time for doing of an act must carry with it the power to extend such period, depending upon whether the party in default makes out a case to the satisfaction of the Court who has fixed the time. In the present case, the learned Counsel below has only refused the said application and such rejection cannot be said to be perverse in any manner requiring interference by this Court under Article 227 of the Constitution of India. 19. The third judgment relied upon by the learned counsel for the petitioner in the case of Yashoda and anr. vs. K. Nagarajan reported in (1996) 11 SCC 228 , the defendant - vendor applied for rescission of the contract under Section 28 of the Act, but the Court not only rejected that application but allowed extension of time for payment of amount in question to the plaintiff, which amount was so deposited within extended period. Therefore, the contention of the defendant that the court had no power to extend the time and that the petitioner - defendant had a right to seek rescission of decree and contract itself was held to be without any substance and the Hon'ble Apex Court held that Section 148 C.P.C. gives powers to the Court to enlarge the time and in the circumstances of the case, the Court had merely exercised its discretion. The said judgment is of little help to the petitioner, but on the other hand rather may support the defendant - respondent herein. 20. On the other hand, in the case of V.S. Palanichamy Chettiar Firm vs. C. Alagappan reported in (1999) 4 SCC 702 relied upon by the learned counsel for the respondents Mr. V.K. Agarwal, the Hon'ble Apex Court in para 17 held that the provisions to grant specific performance of an agreement are quite stringent. 20. On the other hand, in the case of V.S. Palanichamy Chettiar Firm vs. C. Alagappan reported in (1999) 4 SCC 702 relied upon by the learned counsel for the respondents Mr. V.K. Agarwal, the Hon'ble Apex Court in para 17 held that the provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play and 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. The Apex Court held that 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. Therefore, the Hon'ble Supreme Court rejected the application of the plaintiff and upheld the contention of the defendant that the decree was in executable after long lapse of 5 years. Para 17 of the said judgment as appearing in the head-note of the SCC is extracted below for ready reference: "Provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play. Court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the court 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 holder that on account of any fault on the part of the vendor-judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the decree-holder-respondents as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself though fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the decree holder-respondents and no extension of time be granted to them to comply with the decree." 21. The said judgment is clearly on all fours with the present case and this Court is of the clear opinion that learned Executing Court below was justified in refusing the execution of decree of specific performance rejecting the application filed under Section 148 C.P.C. and 3 and ½ years of the decree without any reason and without any evidence. The learned trial Court, rightly found no justification for execution of decree after 7 years of decree dtd. 16.8.2003 and the learned court below was justified in invoking Section 28 of the Act and rescind the Agreement itself. 22. Consequently, the Court finds no merit in the present writ petition of the plaintiff and the same is liable to be dismissed. 23. Accordingly, the present writ petition dismissed. Both the parties will comply with the directions given in the impugned order dtd. 6.12.2010 within a period of three months from today. No order as to costs. A copy of this order be sent to the parties concerned forthwith.