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2016 DIGILAW 1451 (BOM)

Armor's Developers Pvt. Ltd. v. Asha

2016-08-11

A.S.CHANDURKAR

body2016
JUDGMENT : 1. In view of notice for final disposal, the learned Counsel for the parties have been heard at length. 2. The challenge in the present writ petition is to the order dated 4-12-2015 passed by the trial Court whereby the respondents herein were permitted to deposit the balance amount of consideration in terms of the decree for specific performance passed in Special Civil Suit No.706/2003 by extending the period of such deposit by one month. 3. Brief facts giving rise to the present writ petition are that the respondents are the original plaintiffs who had filed suit for specific performance of agreement dated 1-9-1997. The trial Court on 6-1-2012 decreed the suit and granted relief of specific performance. The respondents were directed to deposit the balance consideration of Rs.96,000/within a period of two months from the said judgment. The petitioners were consequently directed to execute the sale deed of plot no.13 within a period of two months of the said judgment. It was further stipulated that in case the respondents failed to deposit the amount of balance consideration within the stipulated time, the suit shall be treated as dismissed. 4. The respondents on 19-4-2012 filed an application under Section 148 of the Code of Civil Procedure, 1908 (for short, the Code) seeking enlargement of time to deposit the balance consideration. It was stated in the application that the Counsel representing the respondents fell ill after the judgment was delivered. An application for grant of certified copy was made on 7-1-2012 and the same was received on 13-4-2012. After receiving the certified copy, the respondents got knowledge about the direction to deposit the balance consideration within a period of two months from the date of the order. Hence, it was prayed that the respondents be permitted to deposit the balance consideration. This application was opposed by the petitioners denying the averments made therein. It was stated that despite knowledge of the judgment, the balance consideration had not been deposited. The petitioners then moved a separate application under Section 28 of the Specific Relief Act, 1963 (for short, the said Act) on 28-9-2012. In the said application, it was stated that as there was default on the part of the decree holder in complying with the decree for specific performance, the contract was liable to be rescinded. This application was opposed by the respondents by filing reply. 5. In the said application, it was stated that as there was default on the part of the decree holder in complying with the decree for specific performance, the contract was liable to be rescinded. This application was opposed by the respondents by filing reply. 5. The trial Court decided both the applications together and by the impugned order dated 4-12-2015 allowed the application moved by the respondents and extended the time to deposit the balance consideration by one month. It rejected the application moved by the petitioners by treating the same as premature. Being aggrieved, the original defendants have challenged the aforesaid order. 6. Shri Anjan De, the learned Counsel for the petitioners submitted that the trial Court was not justified in allowing the application moved by the respondents and treating the application moved by the petitioners as premature. He submitted that the application moved by the respondents under Section 148 of the Code was not maintainable inasmuch as the time prescribed under the provisions of Section 148 of the Code permitted enlargement of time not exceeding thirty days before expiry of the actual period of deposit. According to him, as the respondents moved the said application after the expiry of the period of two months, the same was not maintainable. He then submitted that though the provisions of Section 148 of the Code were not applicable, the said application was entertained by the trial Court by treating the same as being filed under Section 28 of the said Act. Such course without due notice to the petitioners was not maintainable. According to him, even otherwise, the reasons assigned by the respondents in their application were not sufficient to justify extension of time. Without leading any cogent evidence, the statements made in the application were sought to be justified. He urged that as the judgment was delivered on 6-1-2012, it was deemed that the parties had full knowledge about the operative part of the judgment in view of provisions of Order XX Rules 1 and 2 of the Code. 7. It was then urged that the decree passed by the trial Court was self operative and on the failure of the respondents to deposit the balance consideration within a period of two months, the suit was liable to be dismissed. 7. It was then urged that the decree passed by the trial Court was self operative and on the failure of the respondents to deposit the balance consideration within a period of two months, the suit was liable to be dismissed. Considering this stipulation in the decree, there was no question of extension of time to deposit the balance consideration as the Court had become functus officio. In support of his submission, the learned Counsel placed reliance upon the judgment of learned Single judge in Bhujangrao Ganpati Vs. Sheshrao Rajaram 1973 Mh.L.J. 1034. It was further submitted that in the subsequent decision in Vatsala Shankar Bansole Vs. Sambhaji Nanasaheb Khandare AIR 2003 Bombay 57, it has been observed that a decision in Bhaujangrao Ganpati (supra) was not good law, but this conclusion was debatable. He further submitted that as the respondents had not led evidence, their pleadings could not act as a substitute for evidence. As regards the order of the trial Court treating the application filed by the petitioners under Section 28 of the said Act as premature, it was submitted that considering the nature of the decree the application could not be treated as premature. The provisions of Section 28 of the said Act were clear and on failure on the part of the plaintiffs to deposit the balance consideration, the contract was liable to be rescinded. The said application ought to have been allowed by the trial Court. 8. Shri A. S. Jaiswal, the learned Senior Counsel for the respondents supported the impugned order. According to him, the application seeking extension of time to deposit the balance consideration was moved within a short period after completion of two months as permitted by the trial Court. He submitted that the trial Court was justified in invoking the provisions of Section 151 of the Code while treating the application filed by the respondents under Section 28 of the said Act for extending the time to deposit the balance consideration. According to him, under Section 28 of the said Act, a discretion was vested with the trial Court to extend the time to deposit the balance consideration. After considering the reasons mentioned in the application, this time had been extended. He submitted that the certified copy though had been applied immediately on 7-1-2012, the same was received on 13-4-2012. The application in question was moved shortly thereafter on 19-4-2012. After considering the reasons mentioned in the application, this time had been extended. He submitted that the certified copy though had been applied immediately on 7-1-2012, the same was received on 13-4-2012. The application in question was moved shortly thereafter on 19-4-2012. Considering the short period within which the said application was moved, the trial Court was justified in extending the period for depositing the balance consideration. In so far as the application moved by the petitioners under Section 28 of the said Act is concerned, it was urged that the petitioners had filed a reply to the application for enlargement of time on 28-9-2012. On the same day, the petitioners had filed the application under Section 28 of the said Act. Till the prayer for extension of time was not considered by the trial Court, moving of the application under Section 28 of the said Act was premature. He, therefore, submitted that this order passed by the trial Court was also justified in the facts of the case. In support of his submissions the learned Senior Counsel placed reliance upon the following judgments: [1] Vatsala Shankar Bansole Vs. Sambhaji Nanasaheb Khandare and another 2002 (6) Bom. C. R. 126. [2] Hari Ramji Vs. Mahadu Tekale 2006 (6) Mh. L. J. 110. [3] Gopal Samarth Vs. Mukundrao Gedam, 2012 (2) Mh.L.J. 602 . [4] Sardar Mohar Singh Vs. Mangilal (1997) 9 SCC 217 . [5] Salem Advocate Bar Association T. N. Vs. Union of India (2005) 6 SCC 344 . 9. I have heard the respective Counsel for the parties at length and I have given due consideration to their submissions. The facts narrated above indicate that as per the decree passed on 6-01-2012, the respondents were required to deposit the balance amount of consideration within a period of two months thereafter. The period of two months came to an end on 5-3-2012. The application for enlargement of time was moved on 19-4-2012 which is about a month and half after expiry of period of the two months. The Hon'ble Supreme Court in Sardar Mohar Singh (supra) has held that under provisions of Section 28(1) of the said Act, after the decree for specific performance is passed, the Court does not lose its jurisdiction nor does it become functus officio. The Hon'ble Supreme Court in Sardar Mohar Singh (supra) has held that under provisions of Section 28(1) of the said Act, after the decree for specific performance is passed, the Court does not lose its jurisdiction nor does it become functus officio. Till the period the sale deed is executed in execution of the decree, the trial Court retains its powers and jurisdiction to deal with the decree. The Court has the power to enlarge the time despite an application for rescission of the decree being filed by the judgment debtor. The prayer for extension of time is distinct from a prayer for condonation of delay. In the aforesaid case, the delay of about seven and half years was extended for complying with the decree of specific performance. In the light of the aforesaid legal position, if the facts of the present case are considered, it can be seen that the respondents had applied for certified copy on 7-1-2012. The same was received on 13-4-2012. Immediately thereafter on 19-4-2012, the application for enlargement of time came to be moved. While considering this application, the trial Court found that though the said application was filed under Section 148 of the Code, it would be treated as an application seeking extension of time to deposit the balance consideration. The application was treated as one filed under Section 28 of the said Act. In para 21 of its order, the trial Court has found the reasons mentioned therein to be justifiable, bonafide and convincing. If the application for extension of time to deposit balance consideration is to be treated differently from an application for condontation of delay and if within a short period from receiving certified copy, such application for extension of time had been moved, I do not find that by accepting the prayer for extension of time the trial Court acted in any manner contrary to law. The trial Court not having become functus officio it acted within its jurisdiction in allowing the application moved by the respondents. 10. The trial Court not having become functus officio it acted within its jurisdiction in allowing the application moved by the respondents. 10. Though the learned Counsel for the petitioner is justified in submitting that the knowledge of the decree ought to be attributed to the parties on the day the judgment is pronounced, in the facts of the present case when the time of two months was granted to make the balance payment and the application for extension was moved within a period of a month and half thereafter, it cannot be said that in this situation there was any deliberate delay on the part of the respondents in seeking extension of time to deposit the balance consideration. The discretion in that regard was rightly exercised by the trial Court especially when it did not lose seisin of the matter. The judgment of the learned Single Judge in Bhujangrao Ganpati (supra) cannot be relied upon in the light of the subsequent judgment of the Hon'ble Supreme Court in Sardar Mohar Singh (supra). The judgments relied upon by the learned Senior Counsel for the respondents support his submissions. 11. As regards the order passed by the trial Court treating the application under Section 28 of the said Act to be premature, this conclusion of the trial Court is also justified. The application for extension of time was moved on 19-4-2012 while the application under Section 28 of the said Act was moved on 28-9-2012. Unless the prayer for enlargement of time was decided, there was no question of considering the prayer for rescinding the contract. Once the prayer for extension of time was granted, it is obvious that the application moved under Section 28 of the said Act would have to be treated as having been filed prematurely. 12. As a result of the aforesaid discussion, I do not find any case to interfere in writ jurisdiction. There being no jurisdictional error committed by the trial Court, the writ petition is liable to be dismissed. The same is accordingly dismissed with no order as to costs.