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2013 DIGILAW 37 (MAD)

K. Raja Ussain v. S. Jothi Bai

2013-01-03

G.RAJASURIA

body2013
JUDGMENT 1. This Civil Revision Petition is focussed to get set aside the order dated 18.10.2010 passed in I.A.No.495 of 2010 in O.S.No.67 of 2006 by the learned II Additional Subordinate Judge, Madurai. 2. Heard both sides. 3. The indubitable and indisputable facts leading to the filing of this Civil Revision Petition, would run thus: (i) The revision petitioner herein filed the suit for specific performance relating to an immovable property. The suit was decreed exparte. The operative portion of the decree would run thus: “TAMIL” (ii) Thereafter, E.P., was filed and at that time, the E.P., was returned on the ground that the direction in the E.P., relating to deposit of the balance sale consideration was not complied with. Thereafter, I.A.No.495 of 2010 was filed with the following prayer: "For the reasons stated in the accompanying affidavit, it is prayed that this Honourable Court may be pleased to issue a challan for a sum of Rs.13,800/- being the balance sale consideration in favour of the petitioner/plaintiff in O.S.No.67 of 2006 and thus render justice." (extracted as such) 4. After hearing both sides, the lower Court dismissed the said application as against which this Civil Revision Petition has been focussed. 5. The learned Counsel for the revision petitioner placing reliance on the grounds of revision, would pyramid his arguments thus: The averments in the affidavit accompanying the I.A.No.495 of 2010, would be to the effect that the revision petitioner promptly entrusted the remaining sale consideration of Rs.13,800/- (Rupees Thirteen Thousand and Eight Hundred only) to his Advocate and that he was on the belief that his Advocate might have deposited the amount in Court in compliance with the decree passed. However, the revision petitioner's dismay and shock, he came to know of the default in depositing the balance sale consideration only on the return endorsement found in the E.P. Thereafter, he took steps in filing the application for deposit of the remaining sale consideration which was unjustifiably rejected by the lower Court as though the lower Court has got no power to condone the delay and that too, after the expiry of two months' period envisaged in the decree. The revision petitioner's Advocate as well as his Clerk died and because of that alone, the balance sale consideration could not be deposited in time as per the decree. The revision petitioner's Advocate as well as his Clerk died and because of that alone, the balance sale consideration could not be deposited in time as per the decree. Accordingly, the learned Counsel for the revision petitioner would pray for setting aside the order of the lower Court and for permitting the petitioner to deposit the balance sale consideration. 6. Per contra, the learned Counsel for the respondents would advance his arguments which could pithily and precisely be set out thus: (i) The reasons found set out in the affidavit accompanying the application are not at all sufficient to condone the enormous delay of 1 3/4 years in depositing the remaining part of the sale consideration as per the decree. It is only the unilateral statement of the party concerned that the amount was entrusted to his Advocate and that subsequently his Advocate as well as his Clerk died. (ii) The learned Counsel for the respondents would submit that the deceased Advocate -E.N.Venkatesan's junior is V.Srinivasan who presently filed I.A.No.495 of 2010 as the Advocate for the plaintiff/decree holder and the said V.Srinivasan was also in the office of the deceased Advocate namely E.N.Venkatesan. However, the learned Counsel for the plaintiff/decree holder would plead ignorance about the said fact. (iii) Be that as it may, it is the duty of the petitioner in I.A.No.495 of 2010 to enlighten and establish, point up and show up that the amount was actually entrusted to his Advocate and that his Advocate failed to deposit the same. Merely making some vague allegations as under: "3. I submit that in the meantime my case bundle was misplaced in our advocate office. Subsequently my advocate clerk and my senior Advocate Mr. E.N.Venkatesan died respectively. Due to the abovesaid reason we could not trace out my case bundle. With great efforts may bundle now traced out." (extracted as such) would be insufficient to get condoned such a huge delay of 1 3/4 years. (iv) The fact also remains that there was no specific application filed for getting extended the time for deposit of the amount or for condoning the delay in depositing such amount. (v) The affidavit accompanying the petition is niggard and bereft of reasons much less valid reasons capable of persuading the Court to condone such a huge delay. Accordingly, the learned Counsel for the respondents would pray for dismissal of this Civil Revision Petition. (v) The affidavit accompanying the petition is niggard and bereft of reasons much less valid reasons capable of persuading the Court to condone such a huge delay. Accordingly, the learned Counsel for the respondents would pray for dismissal of this Civil Revision Petition. 7. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Court in not permitting the petitioner in depositing the remaining part of the sale consideration in Court? The Point: 8. A mere running of the eye over the order passed by the lower Court would demonstrate and display that the lower Court observed that even though the plaintiff/decree holder was expected to deposit the amount within a period of two months in compliance with the decree, he failed to do so and after a lapse of 1 3/4 years, such application was filed for the deposit of the amount. The lower Court also observed in the order thus: "..... No documents have been produced by the petitioner/plaintiff to prove that he offered the balance sale consideration of Rs.13,800/-to the defendant within the time of 2 months and then the defendant has refused to receive the amount. In fact, the petitioner did not offer any amount to the respondent with in the period of 2 months. ....." (extracted as such) 9. No doubt, the lower Court in the order additionally observed as though the Court had no jurisdiction to extend the time in view of the decision of the Bombay High Court in Hindurao Annasheb Patil v. Yeshwant Laxman Yadav reported in AIR 1983 Bombay 60, ignoring the subsequent decision of the Honourable Apex Court in Chanda (dead) through LRs., v. Rattni reported in 2007 (3) CTC 773 . 10. It is not in dispute that the Court has got power to extend the time even though the decree might contemplate a time limit for deposit of the balance sale consideration. 11. There was no application for condoning the delay in depositing the balance sale consideration and there is not even an application for getting the time extended for depositing such balance sale consideration and that is also a serious defect in the matter. 12. 11. There was no application for condoning the delay in depositing the balance sale consideration and there is not even an application for getting the time extended for depositing such balance sale consideration and that is also a serious defect in the matter. 12. Over and above that, the affidavit accompanying the I.A.No.495 of 2010 for deposit of the balance sale consideration, would vaguely refer to such handing over of the balance sale consideration to the Advocate of the decree holder without any reference to the date, etc. In such a case, based on such bald averments in the affidavit, if such a huge delay is ignored and the petitioner is permitted to deposit the amount, then the Rule of law would be in doldrums. 13. At this juncture, one cannot forget for a moment that the suit itself is one for specific performance and the specific performance decree was passed. In this connection, I would like to call up the following decisions of the Honourable Apex Court: (i) Man Kaur (Dead) by L.Rs., v. Hartar Singh Sangha reported in 2010 (10) Supreme Court Cases 512. An excerpt from it, would run thus: "40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not “ready and willing” to perform his obligations." (ii) J.P.Builders and another v. A.Ramadas Rao and another reported in (2011) 1 Supreme Court Cases 429. An excerpt from it, would run thus: "27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. “Readiness and willingness” to perform the part of the contract has to be determined/ascertained from the conduct of the parties." 14. A mere perusal of the aforesaid precedents would make the point clear that the persons seeking specific performance should be diligent in performing his part of contract. No doubt, the plaintiff is not enjoined to deposit in the Court pending litigation even before the decree as sine quo non for getting a decree for specific performance in view of Section 16 of the Specific Relief Act. No doubt, the plaintiff is not enjoined to deposit in the Court pending litigation even before the decree as sine quo non for getting a decree for specific performance in view of Section 16 of the Specific Relief Act. But, if there are laches on the part of the plaintiff, then certainly that should be taken note of and it cannot be ignored or belittled, slighted or discarded. 15. Here, in this case, after the decree, the decree holder's silence for a period of 1 3/4 years would clearly exemplify and demonstrate, portray and display, convey and connote that he was not diligent in pursuing with the matter and in such a case, the discretionary power of the Court cannot be exercised in favour of the plaintiff/decree holder. Wherefore, I am of the view that absolutely, there is no merit in this Civil Revision Petition. The point is answered accordingly. 16. On balance, this Civil Revision Petition is dismissed. No costs.