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2016 DIGILAW 113 (ORI)

Purna Chadra Biswal v. Bijay Kumar Dey

2016-02-09

BISWANATH RATH

body2016
JUDGMENT BISWANATH RATH, J. - This writ petition arises against an order passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack in T.S. No. 484 of 1996 whereby the trial Court while allowing an application under Order 28 (3) of the Specific Relief Act at the instance of opposite party No. 1 (plaintiff in the Court below) rejected the application under Section 28(1) of the Specific Relief Act at the instance of opposite party No. 2 (defendant in the Court below). 2.The short background involved in the case is that the plaintiff-opposite party No. 1 filed a Title Suit bearing No. 484 of 1996 against defendant therein the present opposite party No. 2 for specific performance of contract dated 19.02.1996 for sale of the suit land. Pursuant to service of notice, the opposite party No. 2 appeared in the suit land filed her written statement along with a counter claim claiming compensation for obstruction in her right over the disputed property for pendency of the Title Suit. The suit was finally concluded by the judgment dated 30.06.1999 with the following order. “Order The suit is decreed on contest against the defendant with cost, but the counter claim of the defendant is dismissed without cost. The defendant is directed to sale the suit land on receipt of balance consideration of Rs. 2,00,000/- (Rupees two lakhs) from the plaintiff and execute and register the sale deed at the cost of the plaintiff in his favour within a period of two months hence, failing which the plaintiff shall have the right to get the registered sale deed obtained through Court. Advocates’ fees at the contested scale.” 3.Consequent upon the judgment indicated hereinabove, a decree in the light of order passed in the judgment was also passed. It is at this stage, the plaintiff filed an application under Section 28(3) of the Specific Relief Act with the following prayer: “Prayer The plaintiff prays to Hon’ble Court to be pleased to allow the plaintiff to deposit the balance consideration amount of Rs. 1,80,796.25/- in favour of the defendant and thereafter the required sale Deed to be executed and registered by this Honn’ble Court in respect of the suit property in favour of the plaintiff. 1,80,796.25/- in favour of the defendant and thereafter the required sale Deed to be executed and registered by this Honn’ble Court in respect of the suit property in favour of the plaintiff. And after execution of this sale Deed Khas possession of the Schedule property he delivered through Court by appointing a Civil Court Commissioner to the plaintiff.” Following such developments and during pendency of the First Appeal bearing No. 447 of 1995, the plaintiff filed an amended application under Section 28(3) of the Specific Relief Act on 3.02.2008. Consequent upon this development, the defendant Nos. 1,2 & 3 of the Specific Relief Act. The defendant No. 1 also simultaneously filed an application under Section 28(1) of the Specific Relief Act with the following prayer. “Prayer Under the aforesaid facts and circumstance, it is therefore most humbly prayed that this Hon’ble Court may graciously be pleased to allow this petition by rescinding the contact of sale. And for this act of kindness the defendant as in duty bound shall ever pray.” 4.In the first round of litigation, by order dated 13.02.2009, the lower Court disposed of the matter allowing the application under Section 28(1) of the Specific Relief Act at the instance of the defendant No. 1 and rejected the application under Section 28(3) of the Specific Relief Act at the instance of plaintiff-opposite party No. 1. This order having been challenged in the High Court by way of writ petition bearing W.P.(C) No. 7140 of 2009. This Court by order dated 29.10.2010 passed the following order: “Heard learned counsel for the parties. In this writ petition, challenge has been made to the order dt. 13.03.2009 passed by the learned 2nd Addl. Civil Judge (Senior Division), Cuttack in T.S. no. 484 of 1996 (F.D.) rejecting the plaintiff’s application under Section 28(3) of the Specific Relief Act for execution of the deed, directing defendant No. 1 to refund Rs. 1,00,000/- with 6% interest while allowing the petition filed by defendant No. 1 under Section 28(1) of the Specific Relief Act for rescission of the contract for sale of the suit land to the plaintiff. It is submitted by the learned counsel for the petitioner that the petitioner approached the Court after expiry of two moths from the date of the decree to deposit the balance amount and to execute the sale deed as per the decree. It is submitted by the learned counsel for the petitioner that the petitioner approached the Court after expiry of two moths from the date of the decree to deposit the balance amount and to execute the sale deed as per the decree. However, the Court below rejected his application observing that after lapse of twelve years he approached the Court by filing an application under Section 28(3) of the Specific Relief Act with a prayer to permit him to deposit the balance consideration amount and to execute the sale deed in his favour which is not correct. Learned counsel for the opposite party no. 1 submits that since the plaintiff-petitioner failed to deposit the said consideration amount, the defendant did not execute the sale deed and thereafter executed the sale deed in favour of opposite parties 2 and 3 the purchasers. However, looking into the decree it appears that the trial Court directed the defendant opposite party No. 1 to sell the suit land on receipt of the balance consideration of Rs. 2,00,000/- from the plaintiff and execute the registered sale deed at the cost of the plaintiff in his favour within a period of two montsh, failing which the plaintiff shall have the right to get the registered sale deed obtained through Court. Therefore, there was no direction in the decree that the plaintiff has to deposit the balance consideration amount before the Court below and thereafter the said sale deed will be executed. Since the Court below in an erroneous impression has passed the impugned order without going through the decree passed in the suit, this Court sets aside the impugned order dated 13.03.2009 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No. 484 of 1996 (F.D.) and directs him to consider the matter afresh and pass a reasoned order within a period of two months from the date of receipt of this order. Since this Court remands the matter to the Court below for fresh disposal, status quo as on date passed by this Court on 19.05.2009 in Misc. Case No. 5452 of 2009 shall continue till disposal of the said application. The writ petition as well as misc. Since this Court remands the matter to the Court below for fresh disposal, status quo as on date passed by this Court on 19.05.2009 in Misc. Case No. 5452 of 2009 shall continue till disposal of the said application. The writ petition as well as misc. case is disposed of.” 5.Consequent upon the direction of this Court in the aforesaid writ petition directing the lower Court for fresh disposal of the application afresh, the lower Court once again took up the matter and by the impugned order dated 17.07.2010 while allowing the application under Section 28(3) of the Act at the instance of the plaintiff, rejected the application under Section 28(1) of the said Act at the instance of the defendant. Hence, the present writ petition has been filed by the defendant Nos. 2 & 3 assailing that part of the order allowing the application under Section 28(3) of the Specific Relief Act. This very order is also assailed by the defendant No. 1 the present opposite party No. 2 in a separate writ petition vide W.P.(C) No. 13586 of 2010. 6.As admitted by the parties concerned, the defendant Nos. 2 & 3 are subsequent purchasers claiming right through defendant No. 1. Grounds in assailing the order stood also most common, as all the defendants are sailing in one boat. The grounds raised therein are that the interpretation given by the Court below in arriving at the conclusion is thoroughly misconceived and unsustainable in law, the reasons are based on surmises. The Court below was not correct to say that no time limit have been given in the judgment to pay the balance consideration money. The findings so far it relates to the application under Section 28(3) of the Specific Relief Act is within four months of decree, is not only erroneous but also contrary to the stand taken by the defendants and the materials available on record. The lower Court lost the sight of basic fundamental in invoking the provision under Section 28(3) of the Act mandates payment of the parties money to the vendor within the time fixed in the decree and as the plaintiff failed in paying the amount to the vendor within a period of two months, the decree remain in executable. The lower Court lost the sight of basic fundamental in invoking the provision under Section 28(3) of the Act mandates payment of the parties money to the vendor within the time fixed in the decree and as the plaintiff failed in paying the amount to the vendor within a period of two months, the decree remain in executable. Therefore, the Court committed grave illegality in allowing the plaintiff to deposit the balance consideration money in time and consequently, failed in exercise the jurisdiction vested with him. It is also contended that the lower Court has gone wrong in observing that there is no scope for the plaintiff to pay the balance consideration money as the defendant No. 1 has never approached him. The learned Court below also failed in considering the amount already deposited by the defendant No. 1 pursuant to the order dated 13.03.2009, while rejecting an application under Section 28(1) of the Act. The impugned order was also passed ex-parte after rejecting an application at the instance of defendant No. 1 seeking adjournment of the matter on the particular day. It is in these premises, learned counsel for defendant Nos. 1 to 3 in both the writ petitions contended that the impugned order is bad in law and therefore, is liable to be set-aside. 7.In opposition, learned counsel for opposite party No. 1- plaintiff contended that in view of clear direction in the order part of the judgment in the suit there was no time stipulation for compliance of the direction of trial Court in allowing the suit. On the other hand, for the clear direction in the operative part of the judgment, there was a clear direction for the defendant No. 1 to act in a particular manner within a period of two months from the date of receipt of deposit at the instance of plaintiff. 8.Learned counsel for the plaintiff in referring to the application under Section 23 of the Specific Relief Act filed on 28.10.1999 contended that the plaintiff has a clear case as narrated in paragraph No. 5 that in spite of plaintiff showing his willingness to pay the balance consideration amount of Rs. 2,00,000/- (Rupees Two laks) and also showing interest to bear the cost of the execution and registration of the sale deed, the defendant No. 1 did not executed the deed and registered the sale deed. 2,00,000/- (Rupees Two laks) and also showing interest to bear the cost of the execution and registration of the sale deed, the defendant No. 1 did not executed the deed and registered the sale deed. For which, he was constrained to take the help of Court for execution of the sale deed. Defendant No. 1 filed an objection simply denying the allegation of the plaintiff saying that the plaintiff has never shown any willingness to pay the balance consideration amount to the defendant No. 1. With the above background involved in the case, the question that falls for consideration is as to whether the trial Court is justified in allowing the application under Section 28(3) of the Specific Relief Act 1963? 9.There is no denial to the fact that the suit at the instance of the Opposite Party for specific performance of contract has been decreed following the judgment in the suit dated 30.06.1999 and in view of the direction contained in the judgment dated 30.06.1999, the decree appears to be a preliminary decree. There is also no denial to the fact that for indifferent attitude of the defendants – present petitioners judgment- Debtors, the Opposite Parties-Decree –Holders filed an application under Order 28(3) of the Specific Relief Act, 1963 on 28.10.1999 for appropriate relief and subsequently, the Judgment Debtors after about a decade filed an application under Section 28(1) of the Specific Relief Act 1963 on 22.01.2009. The application under Section 28(3) of the Act at the instance of the Decree-Holder also initially taken up by the trial Court, which matter ended with an order of rejection giving rise to file an application in the High Court of Orissa vide W.P.(C) No. 7140 of 2009. This Court while disposing the aforesaid Writ petition, in the 5th unnumbered paragraph of the order dated 29.10.2010 held as follows: “However, looking into the decree it appears that the trial Court directed the defendant opposite party no. 1 to sell the suit land on receipt of the balance consideration of Rs. 2,00,000/- form the plaintiff and execute the registered sale deed at the cost of the plaintiff in his favour within a period of two months, failing which the plaintiff shall have the right to get the registered sale deed obtained through Court. 1 to sell the suit land on receipt of the balance consideration of Rs. 2,00,000/- form the plaintiff and execute the registered sale deed at the cost of the plaintiff in his favour within a period of two months, failing which the plaintiff shall have the right to get the registered sale deed obtained through Court. Therefore, there was no direction in the decree that the plaintiff has to deposit the balance consideration amount before the Court below and thereafter the said sale deed will be executed.” 10.Looking to the observation of the High Court in the disposal of the above matter, the High Court has categorically observed that looking into the decree, it appears that the trial Court directed the defendant-Opp.Party No. 2 to sell the suit land on receipt of the balance consideration of Rs. 2,00000/- (Rupees Two Lacs) from the plaintiff and execute the registered sale deed at the cost of the plaintiff in his favour within a period of two months failing which the plasintiff shall have the right to get the registered sale deed obtained through Court. Therefore, there was no direction in the decree that the plaintiff has to deposit the balance consideration amount before the Court below and thereafter the sale deed will be executed. It is on the above observation, this High Court while setting aside the order of the trial Court rejecting the application under Section 28(3) of the Act, remitted the matter to the lower Court for reconsideration of the application under Section 28(3) of the Act. 11.The above observation of the High Court ;in the previous Writ petition makes it clear that there was no direction in the decree that the plaintiff has to deposit the balance consideration amount and then only the sale deed will be executed. Finding of the High Court in the previous writ petition having not been challenged, this finding remains final and in such view of the matter, the lower Court had no other option than to allow the application under Section 28(3) of the Act and by doing this, the trial Court did no wrong. Further as appears, the above Writ petition was filed in the year 2009 and the application under Section 28(1) of the Act was also filed in the year 2009. Further as appears, the above Writ petition was filed in the year 2009 and the application under Section 28(1) of the Act was also filed in the year 2009. 12.Now looking to the legality of the decision of the lower Court from the point of view of the provision contained in Section 28 of the Act, the view of this Court runs as follows: Section 28 of the Specific Relief Act 1963 reads follows: “Section 28 in The Specific Relief Act, 1963 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 for 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 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 lesee 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 ay proceedings under this Section shall be in the discretion of the Court.” 13.Reading of the above provision makes it abundantly clear that the provision not only contemplates rescission of the contract but also gives power to the lower Court for extending time for deposit. The object behind the provision is to avoid multiplicity of suits. In a similar fact and situation, a matter decided by the Hon’ble Apex Court in the case between Chanda (dead) through L.Rs –vrs- Rattni and Another as reported in 2007 (II) CLR (SC)-108. In paragraphs 8 and 9 of the judgment held as follows: “8. The present Section corresponds to Section 359 of the Specific Relief Act, 1877 (hereinafter referred to as the ‘repealed Act’) under which it was open to the Vendor or lessor in the circumstances mentioned in that Section to bring a separate suit for rescission; but this Section goes further and gives to the Vendor or lessor the right to seek rescission in the same suit, when after the suit for specific performance is decreed the plaintiff fails to pay the purchase money within the period fixed. The present Section, therefore, seeks to provide complete relief to both the parties in terms of a decree for specific performance in the same suit without requiring one of the parties to initiate separate proceedings. The object is to avoid multiplicity of suits. The present Section, therefore, seeks to provide complete relief to both the parties in terms of a decree for specific performance in the same suit without requiring one of the parties to initiate separate proceedings. The object is to avoid multiplicity of suits. Likewise under the present provisions where the purchaser or lessee has paid the money, he is entitled in the suit for specific performance to the reliefs as indicated in Sub-Section 93 like, partition, possession etc. a suit for specific performance does not come to an end on passing of a decree and the Court which has passed the decree for specific performance retains the control over the decree even after the decree has been passed. 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 suit to stand dismissed. The power exercisable under the Section is discretionary.” The view of trial Court allowing the application under Section 28 (3) of the Specific Relief Act gets well supported by the above judgment of the Hon’ble Apex Court. 14. Now looking to another decision of the Hon’ble Apex Court in the case between Bhupendra Singh –vrs-Angrez Singh, reported in 2009 (8) SCC-766, the Hon’ble Apex Court following some previous judgment of the Apex Court in paragraph Nos. 19, 20 and 21 held as follows: “19. It is clear that the decree is in the nature of preliminary decree and the suit would continue and be under the control of the Court till either party moves for passing the final decree. It is also clear that though the Court has the power to extend time and it is the duty of the Court to apply the principle of equity to both the parties. 20. It is also clear that though the Court has the power to extend time and it is the duty of the Court to apply the principle of equity to both the parties. 20. In Kumar Dhirendra Malick v. Tivoli Park Apartments (p) Ltd. this Court, after analyzing earlier decisions, has concluded that : (SCC p. 264 a-c) “When the Court passes the decree for specific performance, the contract between the parties in not extinguished. The Court does not lose its jurisdiction after the grant of the decree for specific performance not does it become functus officio. The decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the grant of such decree. Hence, the Court retains control over the entire matter even after the decree. Section 28 gives power to grant order of rescission of the agreement which itself indicates that till the sale deed is executed, the trial Court retains its power and jurisdiction to deal with the decree of specific performance. Therefore, the Court has the power to enlarge the time in favour of the decree-holder to pay the amount or to perform the conditions mentioned in the decree for specific performance.” 21. It is clear that Section 28 gives power to the Court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial Court which passes the decree of specific performance. In other words, when the Court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree” 15.In view of the facts and situation involved in the present case, considering the observation of this Court on the position of the parties following the decision in the W.P.(C). No. 7140 of 2009 and keeping in view the repeated judgments of the Hon’ble Apex Court as narrated hereinabove, this Court is of the opinion that the lower Court did no wrong in extending the time in favour of the D.Hr allowing an application under Section 28(3) of the Act. No. 7140 of 2009 and keeping in view the repeated judgments of the Hon’ble Apex Court as narrated hereinabove, this Court is of the opinion that the lower Court did no wrong in extending the time in favour of the D.Hr allowing an application under Section 28(3) of the Act. Consequently while on confirming the order of the lower Court in allowing the application under Section 28(3) of the Act, dismisses the Writ petition. The writ petition stands dismissed but however, there is no order as to cost. Petition dismissed.