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2018 DIGILAW 2608 (MAD)

V. M. Kothandaraman v. S. Deivanai

2018-08-24

C.SARAVANAN, R.SUBBIAH

body2018
JUDGMENT : R. Subbiah, J. This petition is filed to grant extension of time to the petitioner herein/first respondent in A.S.No.367 of 2015 on the file of this Court to make the balance amount of Rs.13,90,000/- together with interest at 6% per annum from 01.01.2018 till the deposit is made to the credit of O.S.No.40 of 2009 on the file of III Additional District Court, Pondicherry. 2. The petitioner herein is the first respondent in A.S.No.367 of 2015, who is the plaintiff in O.S.No.40 of 2009. The respondents 1 to 4 herein are the appellants 1 to 4 in A.S.No.367 of 2015 and they are the defendants 1, 2, 4 and 5 in O.S.No.40 of 2009. The respondents 5 and 6 herein are the respondents 2 and 3 in A.S.No.367 of 2015 and they are the defendants 6 and 7 in O.S.No.40 of 2009. 3. The said appeal in A.S.No.367 of 2015 has been filed as against the decree of specific performance, directing the defendants to execute the sale deed in favour of the petitioner herein. After contest, the appeal was dismissed on 22.06.2017. The relevant portion of the judgment dated 22.06.2017 rendered in A.S.No.367 of 2015 is extracted hereunder: "52. For the foregoing reasons, the appeal is dismissed. However, the plaintiff/1st respondent herein is directed to pay 6% interest on the sale consideration to the defendants and on such payment, the plaintiff is entitled to the relief of specific performance as ordered by the trial Court. No costs." Subsequently, the appeal was listed under the caption "for being mentioned" on 13.07.2017 and on that date, paragraph 52 of the judgment in A.S.No.367 of 2015, dated 22.06.2017, was deleted and in its place, the following paragraph is ordered to be substituted: "For the foregoing reasons, the appeal is dismissed. However, the plaintiff/1st respondent is directed to pay 6% interest per annum on the sale consideration, from the date fixed for performance of the contract under the Sale Agreement viz., 10.02.2007 till the date of deposit. The said amount has to be deposited by the plaintiff/1st respondent, after adjusting the amount that has already been deposited before the Court below, within a period of eight weeks from the date of receipt of a copy of this judgment. In the meantime, the appellants/defendants are permitted to withdraw the amount already deposited by the plaintiff from the Trial Court. No costs." 4. In the meantime, the appellants/defendants are permitted to withdraw the amount already deposited by the plaintiff from the Trial Court. No costs." 4. Now, the present C.M.P. is filed for extension of time to the petitioner herein/first respondent in A.S./plaintiff in O.S., to make payment of the amount of Rs.13,90,000/- together with interest at 6% per annum from 01.01.2018 till the deposit is made to the credit of O.S.No.40 of 2009. 5. The brief averments made in the affidavit filed in support of this C.M.P. are as follows: (a) The first respondent is the mother of respondents 2 to 4 (sons) and one of the sons of first respondent, namely S.Dhandapani, who had been arrayed as third defendant in the suit, died intestate. On his death, the respondents 5 and 6 herein were brought on record and they were shown as defendants 6 and 7. After contest, the suit was decreed by the trial Court on 20.11.2014, aggrieved by which, the present First Appeal in A.S.No.367 of 2015 had been filed by the defendants 1, 2 4, 5, 6 and 7. (b) The legal heirs of the deceased third defendant, i.e. wife and son of the deceased third defendant, were shown as defendants 6 and 7 in the suit. After the decree was passed by the trial Court, all the defendants have originally filed the present First Appeal. However, before numbering the First Appeal in A.S.No.367 of 2015, the legal heirs of the deceased third defendant-Dhandapani, who are shown as appellants 5 and 6, had sold their 1/5 share originally belonging to the deceased third defendant, for a valid consideration to the plaintiff. In view of the said sale, though the respondents 5 and 6 herein were shown originally as appellants 5 and 6 in the appeal, subsequently, as per order dated 30.06.2015 in M.P.No.3 of 2015, they were transposed as respondents 2 and 3 in the First Appeal. The 1/5th share of the respondents 5 and 6 herein, in the entire sale consideration of Rs.1,25,98,000/- works out to Rs.25,19,600/-. (c) At the time of entering into sale agreement, a sum of Rs.10,00,000/- was paid as advance and hence, after deducting a sum of Rs.2,00,000/-, representing 1/5 share out of Rs.10,00,000/- paid as advance, the balance amount of Rs.23,19,600/- (Rs.25,19,600 - Rs.2,00,000) was paid to the respondents 5 and 6 being their 1/5 share. (c) At the time of entering into sale agreement, a sum of Rs.10,00,000/- was paid as advance and hence, after deducting a sum of Rs.2,00,000/-, representing 1/5 share out of Rs.10,00,000/- paid as advance, the balance amount of Rs.23,19,600/- (Rs.25,19,600 - Rs.2,00,000) was paid to the respondents 5 and 6 being their 1/5 share. After deducting Rs.23,19,600/- from the balance sale consideration of Rs.1,15,98,000/- (Rs.1,25,98,000 - Rs.10,00,000/-), the balance amount payable to the decree-holder comes to Rs.92,78,400/-. (d) The details of the amount arrived at Rs.92,78,400/-, are as follows: Total sale consideration Rs.1,25,98,000/- Advance paid on 18.12.2006 Rs.10,00,000/- Balance sale consideration Rs.1,15,98,000/- Less 1/5 share sold by legal heirs of third defendant (Mr.Dhandapani) to the decree holder Rs.23,19,600/- Balance amount payable by the decree holder as per the direction of the trial Court Rs.92,78,400/- (e) Hence, the balance sale consideration of Rs.92,78,400/- was deposited in strict compliance of the trial Court's judgment, in the State Bank of India on 17.04.2015 to the credit of O.S.No.40 of 2009. The said amount of Rs.92,78,400/- was deposited in the State Bank of India for interest at 9.15% per annum on Rs.92,78,400/- from 17.04.2015 to 17.04.2017, which was enlarged into Rs.1,09,48,400/-, including interest of Rs.16,70,000/-. Hence, interest at 6% per annum as directed by this Court, was calculated by the petitioner from 18.04.2017 to 02.08.2017, being the date of deposit made by the petitioner as directed by this Court while disposing of the appeal. That interest amount comes to Rs.1,90,772/-. When the respondents 1 to 4 sought for stay in A.S.No.367 of 2015, this Court directed the respondents 1 to 4 to deposit the entire sum of Rs.10,00,000/- as advance paid to the defendants, with interest at 8.5% per annum from 10.02.2007 to 15.10.2015 for 9 years and that amount of Rs.18,00,000/- was deposited by the defendants. The said amount carried interest at 6% per annum as per the order of this Court, from 16.10.2015 to 02.08.2017 and that comes to Rs.1,94,400/-. By virtue of the deposit made by the petitioner as well as by the respondents 1 to 4, on the basis of the order passed by the trial Court and this Court, the amount lying to the credit of O.S.No.40 of 2009 as on 17.04.2017 was Rs.1,27,48,400/-. By virtue of the deposit made by the petitioner as well as by the respondents 1 to 4, on the basis of the order passed by the trial Court and this Court, the amount lying to the credit of O.S.No.40 of 2009 as on 17.04.2017 was Rs.1,27,48,400/-. The said amount was taken into consideration at the time of deposit by the petitioner before the trial Court and on the basis of the order passed by this Court, 6% interest was calculated after deducting 1/5 share purchased by the petitioner from respondents 5 and 6 herein. (f) Pursuant to the direction of this Court at the time of dismissing the First Appeal to pay interest at 6% per annum on the sale consideration from the date fixed for performance of the contract under the sale agreement, i.e. from 10.02.2007 till the date of deposit, and after deducting 1/5 share purchased by the petitioner from the respondents 5 and 6, the balance amount to be deposited as per the order of this Court, works out to Rs.32,85,108/-. The Memo of Calculation as detailed in the affidavit filed in support of this C.M.P., is as follows: Total sale consideration Rs.1,25,98,000/- Less 1/5 share sold by LRs of third defendant to the petitioner/decree-holder as per the decree of this Court Rs.25,19,600/- Balance sale consideration due to defendants 1 to 4 Rs.1,00,78,400/- Interest at 6% from 10.02.2007 (the date agreed under the agreement to pay the balance sale price) to 03.08.2007 on Rs.1,00,78,400/- Rs.63,40,280/- Balance due to defendants 1 to 4 Rs.1,64,18,680/- Less the amounts deposited in Court Pending case amount already deposited in SBI Rs.92,78,400/- interest @ 9.15% p.a. from 17.04.2015 to 17.04.2017 accrued on Rs.92,78,400/- is Rs.16,70,000/- Rs.1,09,48,400/- Interest @ 6% p.a. from 18.04.2017 to 02.08.2017 on Rs.1,09,48,400/- Rs.1,90,772/- Advance amount Rs.10,00,000/- interest @ 8.5% from 10.02.2007 to 15.10.2015for 9 years interest amount of Rs.8,00,000/- Rs.18,00,000/- Interest @ 6% from 16.10.2015 to 02.08.2017 on Rs.18,00,000/- Rs.1,94,400/- Total Rs.1,31,33,572/- Balance amount to be deposited as per order of this Court (i.e.) Rs.1,64,18,680/- minus Rs.1,31,33,572/- Rs.32,85,108/- Hence, on the basis of the said Memo of Calculation, within eight weeks' time, the deposit was made. Since the petitioner has already purchased 1/5 share from the respondents 5 and 6, representing the deceased third defendant Dhandapani, the petitioner was under the bona-fide impression that the mother of the deceased third defendant need not be paid any amount. Since the petitioner has already purchased 1/5 share from the respondents 5 and 6, representing the deceased third defendant Dhandapani, the petitioner was under the bona-fide impression that the mother of the deceased third defendant need not be paid any amount. The same was only due to inadvertence. In such a situation, in the Execution Petition in E.P.No.73 of 2015 filed by the petitioner before the Court below, praying for a direction to execute the sale deed, the respondents 1 to 4 herein filed E.A.No.27 of 2017 under Section 28 of the Specific Relief Act, for rescinding the contract, dated 18.12.2006, contending that the petitioner has not deposited the correct amount before the trial Court and hence, the order passed by this Court was not complied with and the petitioner was not ready and willing to perform his part of the contract and on that basis, the respondents 1 to 4 invoked the provisions of Section 28 of the Specific Relief Act. If the petitioner has to pay as per the order of this Court, including 1/3 share out of the estate of the deceased third defendant Dhandapani, the balance amount that has to be paid is on the basis of the calculation below, which comes to Rs.13,90,000/-. Total sale consideration Rs.1,25,98,000/- Less 1/5th share sold by LRs. of third defendant to petitioner/decree-holder as per the decree of this Court Rs.25,19,600/- Balance sale consideration due to defendants 1 to 4 Rs.1,00,78,400/- The amount deducted towards 1/5th share Rs.25,19,600/- Interest @ 6% from 10.02.2007 to 10.01.2018 (for the purpose of easy calculation) Rs.16,50,338/- Total Rs.41,69,938/- For convenience Rs.41,70,000/- Out of Rs.41,70,000/- - 1/3rd payable to mother Deivanai Rs.13,90,000/- (g) It is the grievance of the petitioner that according to respondents 1 to 4 herein, the correct amount has not been deposited by the petitioner/plaintiff before the trial Court, and hence, the judgment of this Court passed in A.S.No.367 of 2015 has not been complied with by the petitioner/plaintiff within the time stipulated. In other words, the petitioner has not been ready and willing to perform his part of the contract, and on that basis, the respondents 1 to 4 invoked the provisions of Section 28 of the said Act. 6. In other words, the petitioner has not been ready and willing to perform his part of the contract, and on that basis, the respondents 1 to 4 invoked the provisions of Section 28 of the said Act. 6. It is the submission of the learned counsel for the petitioner that the petitioner has to pay the decretal amount as per the judgment of this Court in A.S.No.367 of 2015, including the 1/3 share of the deceased third defendant Dhandapani's estate. Due to inadvertence and due to genuine and bona-fide mistake on the part of the petitioner in the matter of calculation, without taking into consideration of the mother's share out of the deceased third defendant Dhandapani's estate, the petitioner deposited only Rs.32,85,108/- on 02.08.2017. On the other hand, the petitioner was supposed to deposit an additional sum of Rs.13,90,000/- as on December 2017 to the credit of O.S.No.40 of 2009 on the file of the trial Court. Failure to deposit the said amount is neither wilful nor wanton, but only due to the genuine mistake over the miscalculation and interpretation of law in the matter of taking into consideration the estate of the deceased Dhandapani (D3). Hence, the petitioner has filed the present C.M.P. for extension of time for making additional deposit of Rs.13,90,000/- with interest @ 6% per annum from 01.01.2018 till the date of deposit is made to the credit of O.S.No.40 of 2009 on the file of III Additional District Court, Pondicherry. 7. This petition for extension of time is opposed by the respondents 1, 2 and 4 by filing counter affidavit stating that the first respondent-S.Deivanai is the mother of the deceased third defendant/S.Dhandapani. During the pendency of O.S.No.40 of 2009, the said Dhandapani died intestate on 29.07.2011 leaving behind his mother Deivanai (first defendant), wife Saranya Gomathi (sixth defendant) and the minor son Nithya Prasad (seventh defendant). Thereafter, the first, sixth and seventh defendants have filed O.S.No.1827 of 2011 before the II Additional District Munsif Court, at Pondicherry to declare them as the legal heirs of the deceased Dhandapani and the said suit was decreed on 31.01.2012. 8. Thereafter, the first, sixth and seventh defendants have filed O.S.No.1827 of 2011 before the II Additional District Munsif Court, at Pondicherry to declare them as the legal heirs of the deceased Dhandapani and the said suit was decreed on 31.01.2012. 8. It is further stated in the counter affidavit that after the said suit was decreed, before numbering the appeal, Saranya Gomathi and minor son Nithya Prasad, who are the legal heirs of the deceased third defendant-Dhandapani, sold their share in the property through registered sale deed, dated 04.03.2015, registered as Document No.3344/2015, on the file of the Sub-Registrar Office, Bahour. The first respondent-Mrs. Deivanai (first defendant), who is the mother of the deceased Dhandapani, was not a party to the said sale deed executed by the wife and son of the deceased third defendant-Dhandapani and she never sold her share in the property to the petitioner and never received any money as sale consideration from the petitioner. This being the case, the petitioner cannot deduct the amount of Rs.25,19,600/- as it is not mentioned in the decree. The second respondent herein has filed the correct calculation Memo in E.A.No.27 of 2015 as per the decree passed by this Court on 22.06.2017, filed by them under Section 28 of the Specific Relief Act for rescinding the contract. As per the sale agreement, the total sale consideration is Rs.1,25,98,000/- and the advance amount is Rs.10,00,000/- and after deducting the advance amount from the total sale consideration, the balance amount is Rs.1,15,98,000/-. As per the trial Court's decree, the petitioner was directed to deposit the amount within six months from the date of the judgment, i.e. 20.11.2014, being the balance sale consideration of Rs.1,15,98,000/- in Fixed Deposit with any Nationalised Bank, to the credit of the suit. As per the decree of this Court, dated 22.06.2017, and subsequent order passed by this Court on 13.07.2017 under the caption "for being mentioned" in A.S.No.367 of 2015, the petitioner was directed to pay 6% interest per annum on the sale consideration from the date fixed for the performance of the contract under the sale agreement, viz. 10.02.2007 till the date of deposit. Accordingly, as per the order of this Court, the amount of 6% interest was deposited on 03.08.2017. 10.02.2007 till the date of deposit. Accordingly, as per the order of this Court, the amount of 6% interest was deposited on 03.08.2017. While calculating the amount as per the decree of this Court, the petitioner should have paid Rs.72,92,600/- and the total number of days is 125 months and 23 days. 9. It is further stated in the counter affidavit that when adding the amount of Rs.1,15,98,000/- plus Rs.72,92,600/-, the total amount arrived at is Rs.1,88,90,600/- . The amount deposited by the petitioner in Term Deposit on 17.04.2015 is Rs.92,78,400/-. Deducting this amount of Rs.92,78,400/- from Rs.1,88,90,600/-, the balance amount will be Rs.96,12,200/-. The petitioner has deposited Rs.32,85,108/- on 03.08.2017 and after deducting this amount from Rs.96,12,200/-, the balance amount ought to have been deposited by the petitioner is Rs.63,27,092/-. The memo of calculation as filed in E.A.No.27 of 2017 by the respondents, is as follows: Sale consideration Rs.1,25,98,000/- Advance amount paid Rs.10,00,000/- (-) Balance sale consideration Rs.1,15,98,000/- Interest at 6% from 10.02.2007 to 03.08.2017 (125 months and 23 days) Rs.72,92,600/- (+) Rs.1,88,90,600/- Amount deposited by the petitioner on 17.04.2015 Rs.92,78,400/- (-) Rs.96,12,200/- Amount deposited by petitioner after decree Rs.32,85,108/- (-) Balance outstanding Rs.63,27,092/- 10. Therefore, as per the counter affidavit of the respondents 1, 2 and 4, the petitioner has not deposited the correct amount before the trial Court and the petitioner has violated the order of this Court. In this regard, already E.A.No.27 of 2017 in E.P.No.73 of 2015 has been filed under Section 28 of the Specific Relief Act for rescinding the contract and the same is pending for adjudication, and when the said E.A. is pending for adjudication, the petitioner/plaintiff has filed the present C.M.P. for extension of time to pay the balance amount of Rs.13,90,000/- together with interest at 6% per annum from 01.01.2018 till the deposit is made to the credit of O.S.No.40 of 2009. If the time is extended by this Court for depositing the balance amount, E.A.No.27 of 2017 pending before the Execution Court, will become infructuous and thus, the respondents 1, 2 and 4 prayed for dismissal of the petition. 11. Learned counsel for the petitioner submitted that as per the direction of this Court in A.S.No.367 of 2015, dated 22.06.2017 / 13.07.2017, the decree-holder complied with the condition imposed by this Court. 11. Learned counsel for the petitioner submitted that as per the direction of this Court in A.S.No.367 of 2015, dated 22.06.2017 / 13.07.2017, the decree-holder complied with the condition imposed by this Court. Since one of the defendants, namely Dhandapani (third defendant) died pending suit, and after the decree was passed by the trial Court in O.S.No.40 of 2009, the wife and the son of the said Dhandapani executed a sale deed in favour of the petitioner herein, representing the estate of the said Dhandapani. The wife and the son were paid the 1/5th share of the entire sale consideration to the tune of Rs.25,00,000/- (sale consideration of Rs.23,00,000/- and advance amount of Rs.2,00,000/-). The mother, who is one of the legal heirs, is the first appellant in the First Appeal representing on behalf of the legal heirs of the said Dhandapani, and she was not paid her share out of the estate of the said Dhandapani and it is only bona-fide mistake. However, now, the amount payable to the first respondent/mother of the deceased third defendant, works out to Rs.13,90,000/-. This mistake came to light only when the petition was filed by the judgment debtor for rescinding of the contract under Section 28 of the Specific Relief Act. Thus, the petitioner sought for extension of time to enable him to pay the said sum of Rs.13,90,000/-. 12. Learned counsel for the petitioner submitted that this Court has got ample power to extend the time to enable the petitioner to pay the amount. Further, in order to fortify his contention that the decree of the appellate Court would be construed as the decree passed by the Court of first instance, and therefore, extension of time can be granted by this Court itself. The learned counsel for the petitioner relied on the following judgments: (a) AIR 1994 SC 1699 (Ramankutty Guptan Vs. Avara); (b) 1997 (9) SCC 217 (Sardar Mohar Singh Vs. Mangilal); (c) AIR 1998 Punjab and Haryana 86 (Kedar Nath Dhingra Vs. Kanwal Bhatia); (d) AIR 2000 SC 3547 (K.S.Muthu Vs. T.Govindarajulu); (e) AIR 2001 Kerala 205 (Chithambaran Vs. Viswambaran) and (f) AIR 2006 Bombay 327 (Hari Vs. Mahadu Kerba Tekale). 13. Thus, the learned counsel for the petitioner prayed this Court to extend the time to enable the petitioner to pay the balance amount of Rs.13,90,000/-, which was omitted to be deposited due to bona-fide mistake. 14. T.Govindarajulu); (e) AIR 2001 Kerala 205 (Chithambaran Vs. Viswambaran) and (f) AIR 2006 Bombay 327 (Hari Vs. Mahadu Kerba Tekale). 13. Thus, the learned counsel for the petitioner prayed this Court to extend the time to enable the petitioner to pay the balance amount of Rs.13,90,000/-, which was omitted to be deposited due to bona-fide mistake. 14. The above contentions of the learned counsel for the petitioner, are vehemently opposed by the learned counsel for the respondents 1 to 4 stating that the decree passed by the trial Court clearly states that the petitioner/plaintiff has to deposit the balance sale consideration. Admittedly, the total sale consideration is Rs.1,25,98,000/-, out of which, the petitioner, at the time of execution of the sale agreement, paid advance amount of Rs.10,00,000/- and going by the decree, the petitioner has to pay the balance sale consideration of Rs.1,15,98,000/- with interest at the rate of 6% per annum from the date of payment as agreed in the agreement. The petitioner has failed to pay the entire sale consideration within the time fixed by this Court. The petitioner has given a false Memo of Calculation. The petitioner has played fraud in wantonly making erroneous calculation. The petitioner deducted a sum of Rs.25,19,600/- being the 1/5th share allegedly sold by the legal heirs of the deceased third defendant/Dhandapani to the petitioner. The decree passed by this Court never speaks about the deduction of 1/5th share allegedly sold by the legal heirs of the deceased third defendant. The mother of the deceased third defendant, is also declared a legal heir of the deceased third defendant in O.S.No.1827 of 2011 on the file of II Additional District Munsif, Pondicherry. But only the wife of the deceased third defendant, namely Saranya Gomathi and minor son Nithya Prasad, who are respondents 5 and 6, have sold the property to the petitioner and not Mrs. Deivanani, who is not a party to the sale deed. While that being the case, the petitioner cannot deduct Rs.25,19,600/-. 15. It is further contended by the learned counsel for the respondents 1 to 4 that the petitioner has mala-fidely adjusted the interest accrued for the sum deposited into Court, pending suit, towards the balance sale consideration. When the respondents preferred the First Appeal, this Court passed a conditional order to deposit Rs.10,00,000/- along with interest. 15. It is further contended by the learned counsel for the respondents 1 to 4 that the petitioner has mala-fidely adjusted the interest accrued for the sum deposited into Court, pending suit, towards the balance sale consideration. When the respondents preferred the First Appeal, this Court passed a conditional order to deposit Rs.10,00,000/- along with interest. The respondents deposited a sum of Rs.18,10,000/- and subsequent to the deposit, the amount has fetched interest of Rs.1,94,400/-. The petitioner has mala-fidely adjusted the entire sum of Rs.19,94,400/- towards balance sale consideration. In fact, the respondents 1 to 4 have filed E.A.No.27 of 2017 under Section 28 of the Specific Relief Act for rescinding the contract, in which, the respondents have filed correct Calculation Memo. As per the calculation of the respondents 1 to 4, the petitioner should deposit Rs.63,27,092/- and only after filing E.A.No.27 of 2017 under Section 28 of the Specific Relief Act in E.P.No.73 of 2015 to rescind the contract, the petitioner has rushed to this Court to extend the time. Since the said E.A. is pending before the trial Court, this petition to extend the time is not maintainable. If the time is extended, it will have a bearing on the said E.A. filed before the Court below and it will render the E.A. infructuous. It is further submitted that the contention of the petitioner that there is error in calculation, which is only bona-fide mistake and it is neither wilful nor wanton, is not acceptable and it can be decided only in the E.A. pending before the Execution Court. Hence, the respondents 1 to 4 prayed for dismissal of the petition. In support of his submissions, the learned counsel for the respondents 1 to 4 relied on the following decisions: (a) 1999 (4) SCC 702 (V.S.Palanichamy Chettiar Firm Vs. C.Alagappan); (b) 2017 (11) SCC 57 (Prem Jeevan Vs. K.S.Venkata Raman); (c) 2003 (4) CTC 705 (Madras High Court) (Maria Ronikkam Vs. Aruldass); (d) 2009 (8) SCC 766 (Bhupinder Kumar Vs. Angrej Singh) and (e) 1998 (II) CTC 585 (Madras High Court) (Raju Naidu Vs. M.Kolandaisamy). 16. While keeping in mind the above submissions made on either side, we have carefully gone through the records. 17. K.S.Venkata Raman); (c) 2003 (4) CTC 705 (Madras High Court) (Maria Ronikkam Vs. Aruldass); (d) 2009 (8) SCC 766 (Bhupinder Kumar Vs. Angrej Singh) and (e) 1998 (II) CTC 585 (Madras High Court) (Raju Naidu Vs. M.Kolandaisamy). 16. While keeping in mind the above submissions made on either side, we have carefully gone through the records. 17. It is the main objection of the learned counsel for the respondents 1 to 4 that when application under Section 28 of the Specific Relief Act is pending, this Court may not extend the time for payment, and if it is extended, the E.A. will become infructuous. Only in the E.A., it could be decided as to whether the calculation made by the petitioner is bona-fide mistake or wilful or wanton. In reply, it is stated by the learned counsel for the petitioner that the decree of the appellate Court would be construed to be the decree passed by the Court of first instance, and therefore, this Court has got ample power to extend the time for payment and pursuant to the judgment of the trial Court, the petitioner has paid Rs.92,78,400/- in the State Bank of India on 17.04.2015 to the credit of O.S.No.40 of 2009 on the file of the III Additional District Court, Pondicherry. Learned counsel for the petitioner further submitted that while the property was purchased from the legal representatives of the deceased third defendant, they have failed to pay the amount of the share of the mother of the deceased third defendant and they were under the impression that the amount need not be paid to the mother. Hence, there is a shortfall in payment of the amount. According to the petitioner, the said mistake is only bona-fide, and this Court can extend the time for payment. 18. Though very many contentions have been raised on either side with regard to the calculation of the amount, this Court need not go into those details and also as to what is the amount that has to be deposited by the petitioner. The only question that has to be decided by this Court is as to whether this petition for extension of time, could be entertained, when the E.A. filed under Section 28 of the Specific Relief Act, is pending before the Execution Court. 19. The only question that has to be decided by this Court is as to whether this petition for extension of time, could be entertained, when the E.A. filed under Section 28 of the Specific Relief Act, is pending before the Execution Court. 19. Before answering the above issue, it would be appropriate to extract Section 28 of the Specific Relief Act, which reads as follows: "Section 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 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 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." 20. A reading of Section 28 of the Specific Relief Act shows that application under Section 28 cannot be filed on the Execution Side of the Court, but it is obvious that the judgment debtor has filed the above E.A. on the Execution Side of the Court, instead of filing the said E.A. in the suit. In fact, Deivanai, the first respondent herein, who is entitled to 1/3 share out of the estate of the said Dhandapani, has not sworn the affidavit before the trial Court in E.A.No.27 of 2017 in E.P.No.73 of 2015. It is not the case of the petitioner that he has not paid the interest amount at all pursuant to the judgment of this Court in the First Appeal within eight weeks. On the other hand, it is the contention of the learned counsel for the respondents 1 to 4 that there is a shortfall in depositing the amount and the said calculation is mala-fide calculation by the petitioner in order to avoid depositing the entire amount. But, it is denied by the learned counsel for the petitioner stating that the mistake is only bona-fide and it is neither wilful nor wanton and the petitioner is prepared to pay the shortfall in the amount which occurred due to non-payment of the share of the mother of the deceased third defendant while purchasing 1/5th share from the wife and son of the deceased third defendant-Dhandapani. However, as stated above, this Court is not going to decide as to what is the balance amount that has to be deposited by the petitioner. This Court has to decide as to whether the time could be extended as sought for by the petitioner in this C.M.P, when the E.A. filed under Section 28 of the Specific Relief Act is pending before the Execution Court. To answer this question, out of all the decisions relied on by the learned counsel for both parties, it is useful to refer the following judgments of the Supreme Court, relevant portions of which are extracted hereunder: I. AIR 1994 SC 1699 (Ramankutty Guptan Vs. Avara): "4. A bare reading itself clearly mentions that in a suit a decree for specific performance of a contract for the sale of immovable property has been made and time has been prescribed for performance, it should be complied within time. On its default, power has been given to the Court that passed the decree to further extend the time as the Court may allow and the purchase money or any other sum be paid within the extended time. If the payment is not made even within the time originally fixed or extended time, what would be the consequences depends on the terms of the decree with which we are not concerned in this appeal. . .. ... 6. .. .. ... Therefore, it is clear that the decree of the appellate Court would be construed to be the decree passed by the Court of first instance. It is settled law that an appeal is a continuation of the suit. Therefore, where a decree for specific performance has been dismissed by the trial Court, but decreed by the appellate court, it should be construed to be in the same suit. When the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, S.28(1) itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the Court has ordered him to pay. In K.Kalpana Saraswathi Vs. When the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, S.28(1) itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the Court has ordered him to pay. In K.Kalpana Saraswathi Vs. P.S.S.Somasundaram Chettiar, (1980) 2 SCR 293 : ( AIR 1980 SC 512 ) this Court held that on an oral prayer made by the counsel for the plaintiff for permission to deposit the entire amount as directed by the trial Court this Court directed the appellant to deposit the amount within six months from that date together with interest and other conditions mentioned therein. An application for extension of time for payment of balance consideration may be filed even in the court of first instance or in the appellate court in the same suit as the decree of the trial Court stands merged with that of the appellate court which decree is under execution. It is to be seen that the procedure is the hand-maid for justice; and unless the procedure touches upon jurisdictional issue, it should be moulded to subserve substantial justice. Therefore, technicalities would not stand in the way to subserve substantive justice. Take a case where the decree is transferred for execution to a transferee executing court, then certainly the transferee court is not the original court and execution it is not the "same court" within the meaning of S.28 of the Act. But when an application has been made in the court in which the original suit was filed and the execution is being proceeded with, then certainly an application under S.28 is maintainable in the same court. 7. The question then emerges is whether it should be on the original side or execution side. Section indicates that it should be "in the same suit". It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under S.28(1) of the Act either for extension of time or for rescinding the contract as claimed for. The court retains control over the decree even after the decree has been passed. It was open to the court to exercise the power under S.28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law. In this view, we feel that the judgment of the Bombay High Court laid down the law correctly and that of the Andhra Pradesh High Court is not correct. The High Court, therefore, is not right in dismissing the application treating it to be on execution side, instead of transferring it on the original side for dealing with it according to law." II. 1997 (9) SCC 217 (Sardar Mohar Singh Vs. Mangilal): "4. 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. 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." 21. From the above decisions of the Supreme Court, it is clear that since the appeal is continuation of the suit, this Court has ample power to extend the time. In a suit for specific performance, the Court does not lose its jurisdiction after grant of decree of specific performance, nor it becomes "functus-officio". Section 28 of the Specific Relief Act gives power for the Court to grant order of recession of the decree which 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. Therefore, this Court is having power to extend the time for payment of the amount as prayed for in this C.M.P. Though it is the submission of the learned counsel for the respondents 1 to 4 that if time is extended, then the application filed in E.A. under Section 28 of the Specific Relief Act will become infructuous, in our opinion, the pendency of the application in E.A.No.27 of 2017 will not be an impediment for this Court to extend the time. Even if the time is extended, if there is any dispute with regard to the amount to be deposited, the same can still be agitated before the Court below. Furthermore, we find that the said E.A. filed under Section of 28 of the Specific Relief Act, has to be filed only in the suit and not in the execution side of the Court. Furthermore, we find that the said E.A. filed under Section of 28 of the Specific Relief Act, has to be filed only in the suit and not in the execution side of the Court. In the instant case, the E.A. was filed only before the Executing Court, and not in the suit, and therefore, on that ground also, the pendency of the E.A. in the Executing Court has no significance in considering this petition seeking for extension of time to deposit the amount. 22. For the above reasonings, this C.M.P. is allowed and the extension of time sought for by the petitioner/plaintiff is granted and four weeks time from the date of receipt of a copy of this order, is granted to the petitioner/plaintiff to pay the balance amount of Rs.13,90,000/- together with interest at 6% per annum from 01.01.2018 till the deposit is made to the credit of O.S.No.40 of 2009 on the file of the III Additional District Court, Pondicherry. 23. Further, if there is any calculation dispute with regard to the amount to be deposited, the parties can adjudicate and agitate the same before the appropriate forum.