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2016 DIGILAW 224 (GAU)

Sudarshan Paul v. Pradip Kumar Roy

2016-03-28

N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. B. Sarma, learned counsel appearing for the petitioner and Mr. P.K. Deka, learned counsel for the opposite party. 2. In this application under Article 227 of the Constitution of India the petitioner has challenged the correctness of the order dated 28.08.2014 passed by learned Civil Judge No.1, Cachar at Silchar, in Title Suit No.51/2011. The aforesaid order was passed under an unusual circumstance. The present petitioner as plaintiff instituted Title Suit No.51/2011 in the Court of learned Civil Judge No.1 at Silchar praying for a decree for specific performance of contract. It was stated that by executing a written agreement for sale on 31.08.2010 the opposite party herein agreed to sell a plot of land measuring 1 Katha 10 Chatack 4 Gonda and 2 Koras standing on 2nd R.S. Patta No.933 Dags No.8083, 8081 and 8080 along with houses standing thereon at a consideration of Rs.39,50,000/-. On the date of agreement the opposite party accepted a sum of Rs.5,00,000/- from the plaintiff as earnest money and it was agreed between the parties that within a period of one year from the date of execution of the agreement the defendant would execute the sale deed on receipt of Rs.34,50,000/-. However, in paragraph 4 of the agreement it was also agreed that in case the plaintiff failed to make payment of the balance sum, in that event, the defendant would be entitled to retain 15% of the earnest money and to refund the balance sum of the earnest money to the plaintiff. 3. After the notice was served the defendant side admitted the claim of the plaintiff and accordingly a judgment was passed on admission on 23.02.2012 and a decree was ordered to be prepared. The plaintiff in the meantime came to know that a suit had already been instituted by a third party against the defendant and the plaintiff of the erstwhile suit challenging the very title of the defendant over the decretal land and right of the defendant to purchase the same. Situated under such circumstances the decree holder filed an application before the learned trial Court praying for keeping the decree in abeyance in view of the fact that the title of the judgment debtor of the erstwhile decree came under cloud. Situated under such circumstances the decree holder filed an application before the learned trial Court praying for keeping the decree in abeyance in view of the fact that the title of the judgment debtor of the erstwhile decree came under cloud. The learned trial Court by an order passed on 05.04.2012 rejected the prayer of the decree holder. By the same order the learned trial Court also passed an order under Section 28 of the Specific Relief Act inasmuch as the judgment debtor had filed an application for rescission of contract under Section 28 of the Specific Relief Act as the decree holder did not deposit the money within the stipulated period. By a one line order the learned trial Court allowed the application under Section 28 of the Specific Relief Act and thereby cancelled the decree. Since the application under Section 28 is stated to have been allowed it amounts to rescission of the contract thereby. The learned Court, however, did not pass any order under Section 30 of the Specific Relief Act. Since it is an admitted fact that the judgment debtor had accepted a sum of Rs.5 Lacs from the decree holder as on the date of execution of the rescinded contract agreeing to sell the decretal land, the decree holder, therefore, subsequently filed an application praying for necessary orders to recover the proportionate part of the earnest money in terms of the agreement. This application has also been rejected by the learned trial Court by impugned order passed on 28.08.2014. This order is under challenge in the present proceedings. 4. Having heard the learned counsel for the parties it appears that there is no dispute in regard to execution of the contract between the parties on 31.08.2010. There is also no dispute between the parties regarding payment of Rs.5 Lacs by the present petitioner to the opposite party herein as earnest money. Mr. P.K. Deka, learned counsel for the opposite party, in his usual fairness, submits that the opposite party herein is entitled to retain 15% of the earnest money in terms of the agreement dated 31.08.2010. There is also no dispute between the parties regarding payment of Rs.5 Lacs by the present petitioner to the opposite party herein as earnest money. Mr. P.K. Deka, learned counsel for the opposite party, in his usual fairness, submits that the opposite party herein is entitled to retain 15% of the earnest money in terms of the agreement dated 31.08.2010. But he submits that no application was immediately filed before the Court by the present petitioner asking for his money and that is why there was no occasion on the part of the learned trial Court to issue any direction for refund of the earnest money or any part thereof. 5. Section 30 of the Specific Relief Act, 1963, vests power on a court to require parties rescinding the contract to do some acts in equity. Section 30 is quoted herein below :- "30. Court may require parties rescinding to do equity.- On adjudging the rescission of a contract, the Court may require the party to whom such relief is granted to restore, so far as may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require." 6. In the present case, the decree holder of the rescinded contract made a prayer for refund of the earnest money and such an order could have been passed by the learned trial Court on the very day the contract had been rescinded under Section 28 of the Specific Relief Act. In fact, on 05.04.2012 when the learned Court had allowed the application under Section 28, did not make any observation in regard to entitlement of the decree holder to get back his money. Section 28 of the Specific Relief Act vests power on the Court to rescind a contract even after passing of the decree of specific performance on the grounds mentioned in the Section. Prior to enactment of Section 28 of the Specific Relief Act, 1963, the original Section 38 of the erstwhile Specific Relief Act, 1877 contained a similar provision as Section 30 of the 1963 Act. 7. Mr. G.N. Sahewalla, learned senior counsel appearing on behalf of the petitioner, has placed reliance on a judgment of the Hon'ble Calcutta High Court in the case of Pankaj Kumar Bhattacharjee v. Manmatha Nath Vidyabhushan Bhattacharjee reported in AIR 1973 CALCUTTA 439. 7. Mr. G.N. Sahewalla, learned senior counsel appearing on behalf of the petitioner, has placed reliance on a judgment of the Hon'ble Calcutta High Court in the case of Pankaj Kumar Bhattacharjee v. Manmatha Nath Vidyabhushan Bhattacharjee reported in AIR 1973 CALCUTTA 439. Paragraph 6 of the said judgment shall be relevant for the purpose of the present case which is quoted hereunder :- "6. It is, however, argued for the first time before us that admittedly a sum of Rs.1,000/- was taken in advance as a part of the purchase money by the respondent. As the decree ahs now stood rescinded under the order of the court, that money ought to be refunded to the appellant. We are referred to Section 38 of the same Specific Relief Act wherein it is provided that on adjudging the rescission of a contract the court may require the party to whom such relief is granted to make any compensation to the other if justice so requires. We have heard Mr. Bhattacharjee on this aspect of the matter, but, he could not assign any reason why this money should be withheld or should not be refunded to the appellant. After all, the specific performance of contract is essentially a matter of equitable relief and either in granting or refusing any relief or rescinding either the contract or the decree for specific performance, it is open to the court to grant such relief to either party as justice may require. In our view, in the facts and circumstances of the present case, for the ends of justice, it would be only fair and proper to direct the respondent to refund the entire amount of Rs.1,000/- to the plaintiff appellant within six months from today." 8. It appears that a part of Section 38 of the Specific Relief Act, 1877 has found place as Section 30 of the present Act. Exercise made under Section 28, therefore, includes the exercise made under Section 30 of the present Act and so it is incumbent upon the Court while passing an order under Section 28 to consider the provision of Section 29 and 30 of the same Act as well. Here, in the present case, while passing the order dated 05.04.2012 the learned Court did not consider the provision of Sections 29 and 30 of the Specific Relief Act, 1963. Here, in the present case, while passing the order dated 05.04.2012 the learned Court did not consider the provision of Sections 29 and 30 of the Specific Relief Act, 1963. It is true that the plaintiff wrongly mentioned Section 28 in his application. But it is established law that quoting wrong section would not disentitle a party from getting relief since it was the duty of the court to see as to whether the decree holder was entitled to an order under Section 30 while passing order under Section 28 of the Specific Relief Act, 1963. There is an apparent error of jurisdiction and so interference by this Court under Article 227 of the Constitution of India has become necessary. 9. Accordingly, this revision petition stands allowed. The impugned order stands set aside. The learned trial Court shall consider the application of the plaintiff of Title Suit No.51/2011 in the light of Section 30 of the Specific Relief Act vis-a-vis the averments made in the agreement dated 31.08.2010 which has not been disputed by the defendant herein. The same shall be done within a period of six months from today. No order as to cost.