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2014 DIGILAW 247 (MAD)

Petitioner v. Respondent

2014-02-01

PUSHPA SATHYANARAYANA

body2014
JUDGMENT Pushpa Sathyanarayana, J. 1. The above petition is filed by one Vasantha Ammal, who is the plaintiff in a suit for specific performance, seeking for extension of time to comply with the condition as stipulated in the judgment of this Court dated 28.8.2000 passed in A.S. No. 789 of 1987. 2. The brief facts relevant are as follows:- The first respondent herein, who is the defendant agreed to sell the property for total consideration of Rs.38,500/- vide agreement dated 06.3.1985. Out of the sale consideration, the first respondent herein had received Rs.5000/- as advance and the balance was agreed to be paid within a month from the date of agreement within which time the sale deed should be executed by the first respondent. On 05.4.1985, the first respondent herein received a further sum of Rs.2000/- from the plaintiff and time for performance was extended by another month by mutual consent. As the first respondent was evading execution of the sale agreement, the petitioner herein filed O.S. No. 119 of 1985 on the file of Subordinate Court, Villupuram, for specific performance of the contract and the suit was decreed in favour of the plaintiff against which the first respondent herein, who is the defendant preferred A.S. No. 789 of 1987 before this Court. It is relevant to state that the balance of the sale consideration was deposited by the petitioner / plaintiff herein to the credit of the suit. When the First Appeal was disposed on 28.8.2000, this Court had directed as follows:- "The first respondent was permitted to withdraw the amount deposited by him in the suit without prejudice to the contention in the appeal. Inasmuch as the suit has been decreed and now confirmed, the appellant is directed to remit the amount within a period of three weeks from the date of receipt of a copy of the Judgment." The copy of the judgment was delivered to the counsel on 07.9.2000 and the amount ought to have been deposited on or before 28.9.2000. But the petitioner did not deposit the amount as directed by this Court within the time granted and filed the above petition for extension of time. But the petitioner did not deposit the amount as directed by this Court within the time granted and filed the above petition for extension of time. The petitioner had stated in the affidavit that her husband one A.Krishnamurthy, who was looking after the case from the beginning, died on 08.11.2000 and that the petitioner was not aware of the suit proceedings and, therefore, she could not comply with the directions of this Court within time. Therefore, this petition is filed for extension of time. 3. Learned counsel appearing for the respondents 2 to 4 have filed counter and contested the petition for extension of time. In the counter, it is pointed out that though the copy was received on 07.9.2000, the petition for extension of time appears to have been filed only on 19.4.2004. But the affidavit filed in support of the same seems to have been signed on 30.12.2003. Further, it was contended by the learned counsel for the respondents that the reason given by the petitioner that the delay was due to the death of her husband who died on 08.11.2000, is unacceptable as the petition was filed only on 19.4.2004 after 3½ years. According to the learned counsel, Article 54 of the Limitation Act prescribes only three years from the date of cause of action and the same would extend even to an application for extension of time. Therefore, the application filed three years after the confirmation of the decree by the Appellate Court, is clearly barred by time. Learned counsel for the respondents also contended that the petitioner was never ready and willing to perform her part of the contract and, therefore, the equitable relief of specific performance cannot be granted by extending time. It was also brought to the knowledge of this Court that the respondents herein had filed an application under Section 28 of the Specific Relief Act before the trial Court rescinding the contract. But no order has been passed till date. Therefore, prayed for dismissal of the petition. 4. Learned counsel for the petitioner reiterated the reasons as set out in the affidavit and relied upon the judgment in Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh vs. Mangilal alias Mangtya reported in 1997 (9) SCC 217 where a distinction is drawn between the extension of time and condonation of delay under Section 5 of the Act. Learned counsel for the petitioner reiterated the reasons as set out in the affidavit and relied upon the judgment in Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh vs. Mangilal alias Mangtya reported in 1997 (9) SCC 217 where a distinction is drawn between the extension of time and condonation of delay under Section 5 of the Act. "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. The said amount is given to the respondent in a sum of Rs 16,000 rightly for the reason that parties contracted for non-performance of the contract. They quantified the damages at Rs 2000 for 8 years. The Court has given Rs 16,000 obviously in terms of the contract." 5. The said amount is given to the respondent in a sum of Rs 16,000 rightly for the reason that parties contracted for non-performance of the contract. They quantified the damages at Rs 2000 for 8 years. The Court has given Rs 16,000 obviously in terms of the contract." 5. Learned counsel for the respondents argued that extension of time cannot be granted to the petitioner on three grounds:- (i) For extension of time, only Article 54 of the Limitation Act is applicable which prescribed time limit of three years and this application filed beyond the period of three years cannot be entertained. (ii) Even if time is not fixed by the Court, the plaintiff has to perform her part of the contract, within a reasonable time after the decree. (iii) The time taken, viz., three years and odd, cannot be said to be reasonable by any standard. As stated earlier, already the respondents have filed an application under Section 28 of the Specific Relief Act for recession of the contract which, in the given circumstances of the case, has to be allowed. Section 28 of the Specific Relief Act is in the following terms:- “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 lessee, if he has obtained possession of the property under the contract, to restore such possession to the 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 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 possession, 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.” The above section contemplates failure on the part of the purchaser to pay the sale amount within the time ordered by the Court. Even though the Section does not stipulate any specific time, it is well settled principle that the Section would apply even to cases in which the decree has not fixed any time for payment of money. 6. The learned counsel for the respondents relied on a decision relating to the case of Chanda (Dead) through L.Rs. v. Rattni and another reported in AIR 2007 SC 1514 , wherein in paragraphs 10 and 11, it has been observed as follows:- Para 9: "The decree for specific performance has been described as a preliminary decree. 6. The learned counsel for the respondents relied on a decision relating to the case of Chanda (Dead) through L.Rs. v. Rattni and another reported in AIR 2007 SC 1514 , wherein in paragraphs 10 and 11, it has been observed as follows:- Para 9: "The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act 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. The power exercisable under this section is discretionary. Para 11: As rightly contended by learned counsel for the respondents the stand now taken was not pleaded before the trial court and the High Court. The decision in Kumar Dhirendra's case (supra) is clearly distinguishable on facts. In fact, it has been noted in that case that the decree-holder was repeatedly assured of payment. The situation is not the same here. 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." 7. Learned counsel also placed reliance on the judgment of the High Court of Andhra Pradesh in M. Sakuntala Devi v. V.Sakuntala and others reported AIR 1978 AP 337 . "The argument of the learned Advocate General was that Section 28 enabled the vendor to apply to the court to rescind the contract where the purchaser had committed default in payment on the purchase money before the date fixed by the decree and, therefore, until the vendor filed such an application the Court would have the power to grant extension of time. But, that is non sequitur. Section 28 is not intended to enable the defaulting party to invoke the Courts discretionary powers but is intended to enable the non-defaulting party to seek courts assistance to be restored to the position that obtained before the contract. But, that is non sequitur. Section 28 is not intended to enable the defaulting party to invoke the Courts discretionary powers but is intended to enable the non-defaulting party to seek courts assistance to be restored to the position that obtained before the contract. For example, a purchaser who has obtained possession of the property at the time of the agreement may commit default in paying the purchase money before the date fixed in the decree for specific performance. What is the remedy of the vendor who has lost possession of the property and who has not received the purchase-money? is he to file a suit to recover possession? Section 28 provides a simple remedy. He may file an application to rescind the contract and to restore possession of the property to him,. The non-defaulting party is enabled to file an application to rescind the contract as a step towards obtaining relief against the defaulting party. There is nothing is Section 28 which warrants the conclusion that it enables the defaulting party to seek extension of time until the non-defaulting party files an application to rescind the contract. As we said earlier, S. 28 does not deal with the topic of extension of time at all. We are therefore of opinion that in the case of an agreement to reconvey property the time fixed by the decree for payment of purchase money cannot be extended. An equally difficult hurdle in the way of the appellant is the circumstance that the decree was a compromise decree and it cannot be varied except by consent...." 8. Yet another case which the learned counsel placed before this Court in support of his contention, is the judgment rendered by the Hon'ble Apex Court in V.S. Palanichamy Chettiar Firm v. C.Alagappan reported in 1999 (1) CTC 409 wherein it has been held that under Article 54 of the Limitation Act, three years period is prescribed for filing the suit for specific performance from the date of agreement. Mere filing of the suit within the said period does not absolve the plaintiff from showing as to whether he was ready and willing to perform his part of agreement. The provisions to grant specific performance of an agreement are quite stringent and equitable consideration come into play. Mere filing of the suit within the said period does not absolve the plaintiff from showing as to whether he was ready and willing to perform his part of agreement. The provisions to grant specific performance of an agreement are quite stringent and equitable consideration come into play. It has been further held that 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. That being the position of law for filing the suit for specific performance, the Court as a matter of course, cannot allow extension of time for making payment of balance of amount for consideration after five years from the date of passing of a decree and three years after the confirmation by the Appellate Court. 9. In the recent judgment of this Court in G. Kesavan v. B.C.Raman reported in 2013 (4) TLNJ 315 (Civil), a case of identical facts was decided. The relevant passage found in paragraph 19 of the order is usefully extracted below:- "In the case on hand, the suit O.S.No.242 of 1996 was decreed on 29.04.1997, giving time for the plaintiff to deposit the balance of sale consideration within one month, i.e., on or before 28.5.1997. So, as per Article 54 of the Limitation Act, 1963, the plaintiff has to execute the decree in O.S.No.242 of 1996 on or before 28.5.2000. But unfortunately, in this case, I.A.No.1837 of 2001 was filed only on 10.08.2000 i.e., nearly three months after the expiry of the date fixed by under Article 54 of the Limitation Act, 1963. Under such circumstance, I am of the view that the Court cannot extend time under sections 148 and 151 of C.P.C. when the time granted under the Limitation Act has already been expired. Once the suit is barred under the Limitation Act, the Court thereafter cannot extend the time either under Section 148 or under Section 151 of C.P.C. or under Section 28 of the Specific Relief Act." 10. The next point urged by the learned counsel for the respondents was that the petitioner / plaintiff was not ready and willing to perform her part of the contract. Learned counsel draws the attention of this Court to paragraph 4 of the affidavit filed in support of the petition. The next point urged by the learned counsel for the respondents was that the petitioner / plaintiff was not ready and willing to perform her part of the contract. Learned counsel draws the attention of this Court to paragraph 4 of the affidavit filed in support of the petition. The relevant passage found in paragraph 4 of the affidavit reads as follows:- "I state that my husband Sri.A.Krishnamurthy Chettiar was looking after the case right from the beginning and even I was not aware about my Counsel at Chennai. I state that my husband had received the judgment copy from the counsel at Madras and it was also brought to my knowledge immediately. Unfortunately my husband expired on 8.11.2000 and I was left alone in this world without any support. I state that my husband had borrowed from various persons and for all these years I am making arrangements to settle the same. I state that I was also facing severe financial constraints and hence I could not comply with the conditional order of this Hon'ble Court. I state that the 1st respondent herein has also so far not filed any petition for rescinding the contract. I state that now I have generated money and I am ready and willing to deposit the amounts as per the orders of this Hon'ble Court if further time is granted...." 11. As stated by the learned counsel for the respondents, in the above paragraph, the petitioner seems to have borrowed money from various persons for which she was making arrangements to settle and she also has confessed about the financial constraints and that she could not comply with the conditional order of this Court. The suit for specific performance being an equitable relief, the plaintiff is expected to be ready and willing throughout the proceedings. When the readiness and willingness is not established, the plaintiff is not entitled to the relief of specific performance. 12. In this case, it is made very clear that though the amount to be deposited is very small, the petitioner / plaintiff has not come forward to deposit the same within time. The respondents also have rightly filed an application under Section 28 of the Specific Relief Act, 1963 Act to rescind the contract due to the failure of the petitioner to comply with the directions of this Court. The respondents also have rightly filed an application under Section 28 of the Specific Relief Act, 1963 Act to rescind the contract due to the failure of the petitioner to comply with the directions of this Court. As stated earlier, the application itself is filed beyond the period of three years which is hit by Section 54 of the Limitation Act. Therefore, there is no merits in the petition for extension of time and the same is dismissed.