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2020 DIGILAW 177 (BOM)

Ruprao v. Shewalkars Herbals Pvt. Ltd.

2020-01-23

RAVINDRA V.GHUGE

body2020
JUDGMENT Ravindra V Ghuge, J. - Rule. Rule returnable forthwith and heard finally by the consent of the parties. 2. The petitioner judgment debtor is aggrieved by the order dated 11.7.2016 by which, the Executing Court has allowed application Exh.3 in Special Darkhast No.36/2015 and the decree holder was granted permission to deposit the balance consideration amount of Rs.5,01,000/- in the Court and since the amount was already deposited by D.D. No.072429, on 13.3.2015, the application was disposed off. 3. The factual matrix of this case is that the petitioner judgment debtor had entered into an agreement to sell an agricultural land bearing Kh. No.52, admeasuring 3.64 Hectors, on 2.5.2000, to the respondents for a consideration of Rs.7,51,000/-. As the sale deed was not executed, the decree holder preferred S.C.S. No.386/2005 seeking specific performance of the contract, possession of the suit land and an injunction against the defendant. By judgment dated 12.11.2008, the suit was decreed and the decree holder was directed to deposit the balance amount of Rs.5,01,000/- within 30 days from the date of the order and the judgment debtor was directed to execute the sale deed. 4. On 15.12.2008, the decree holder filed an application for grant of permission to deposit the said amount. By order dated 19.1.2009 the application was allowed and the decree holder deposited the amount. However, on 21.1.2009, the judgment debtor filed a first appeal before this Court bearing No.335/2009 and sought a stay to the judgment and decree. On 5.2.2009, the decree holder realized that one of its staff members had issued cheque from a nonoperative account and, therefore, a demand draft was prepared and an application was moved on 6.2.2009 seeking permission to deposit the demand draft. 5. On 5.3.2009, the judgment debtor moved an application under Section 28(3) of the Specific Relief Act seeking a rescission of contract. On 23.4.2009, the judgment of the trial Court was stayed in the first appeal. The decree holder tendered a reply to the application of the judgment debtor on 6.5.2009. Considering these developments, the demand draft deposited by the decree holder before the trial Court, was returned by the office of the trial Court on 20.5.2009 since the demand draft was not to be deposited in view of the judgment being stayed by this Court. 6. Considering these developments, the demand draft deposited by the decree holder before the trial Court, was returned by the office of the trial Court on 20.5.2009 since the demand draft was not to be deposited in view of the judgment being stayed by this Court. 6. On account of the change in the pecuniary jurisdiction / enhancement of the pecuniary jurisdiction of the District Court, the first appeal preferred by the judgment debtor in this Court was transferred to the District Court on 8.2.2012. After it was received, it was renumbered as R.C.A. No.206/2012. By the judgment dated 28.8.2013, the R.C.A. No.206/2012 was dismissed. 7. The judgment debtor moved Second Appeal No.500/2013 which was dismissed by this Court on 23.12.2013. The Special Leave Petition filed by the judgment debtor was dismissed on 5.5.2014 by the Hon''ble Apex Court and the Review Petition filed by the judgment debtor was rejected on 24.9.2014. 8. The decree holder, after getting the knowledge of the dismissal of the proceedings before the Hon''ble Apex Court, moved an application accompanied with a fresh demand draft for Rs.5,01,000/- along with an application seeking condonation of delay. The trial Court permitted the presentation of the demand draft on 13.3.2015. By order dated 11.7.2016, impugned in this petition, the application for condonation of delay was granted by the Executing Court. The decree holder had initiated the execution proceedings. 9. The learned Advocate for the judgment debtor, though does not dispute the sequence of events narrated above, relies upon the judgment delivered by the Hon''ble Apex Court in the matter of V.S. Palanichamy Chetttiar Firm V/s. C. Alagappan and another, (1999) AIR SC 918 , to support his contention that extension of time, fixed by the trial Court to deposit the balance amount, sought after 5 years, could not be permitted. The learned Advocate therefore, submits that as the decree was issued on 12.11.2008, depositing a demand draft on 10.1.2015 cannot be accepted as the decree holder has complied with the directions of the trial Court after 6 years. 10. It is submitted that the prices of the lands have now touched the sky and the selling rate per hector is Rs.1,00,000,00/-. 10. It is submitted that the prices of the lands have now touched the sky and the selling rate per hector is Rs.1,00,000,00/-. The learned Advocate appearing on behalf of the decree holder company submits on the basis of the information gathered and taking into account that the land purchased is on the Nagpur - Amravati Highway and is an interior area, would fetch a price of about Rs.2,00,000/- to Rs.2,50,000/- per acre depending upon the quality of the land and if such land is irrigated. There is no dispute that the land at issue is semi-irrigated. He denies that the present rate of land is Rs.1 Crore per hector and contends that the petitioner is intentionally making an incorrect statement only to create a false picture. 11. When called upon to state as to whether the decree holder company would make an offer to the judgment debtor so as to enable the judgment debtor to receive some more amount, the learned Advocate took instructions from company and submitted that this Court may suggest an amount and the company would abide by the suggestion. After considering the approximate price of the land and its location, this Court suggested as to whether the decree holder would pay Rs.2,50,000/- per acre to the judgment debtor. The learned Advocate for the decree holder submitted on instructions that whether the judgment debtor accepts the offer or not, the decree holder would show its bona fides by depositing an additional amount before the Executing Court so as to offer Rs.2,50,000/- per acre to the judgment debtor. Despite this, the learned Advocate for the judgment debtor submitted on instructions from his client present in the Court that he does not accept the said offer. 12. The decree holder has relied upon a recent judgment delivered by the Hon''ble Apex Court in the matter of Surinder Pal Soni V/s. Sohan Lal (D) thru Lr. and others,2019 SCCOnLineSC 900 wherein, an identical situation was before the Hon''ble Apex Court and it was held that permission to deposit such amount in the facts and circumstances of the case, would be permissible. 13. I have gone through the judgment of the Hon''ble Apex Court in Surinder Pal Soni V/s. Sohan Lal (D) thru Lr. and others (supra) and I find that the facts emerging in the said case are very similar to the facts of the case in hand. 13. I have gone through the judgment of the Hon''ble Apex Court in Surinder Pal Soni V/s. Sohan Lal (D) thru Lr. and others (supra) and I find that the facts emerging in the said case are very similar to the facts of the case in hand. It would be apposite to reproduce the narration of the facts in Surinder Pal Soni V/s. Sohan Lal (D) thru Lr. And others (supra) set out in paragraph Nos.2 to 8 as under:- "2. In 2006, the appellant instituted a suit for specific performance of an agreement to sell dated 8 December 2003. The appellant sought to enforce an agreement for the sale of land bearing 12 kanals and 9 marlas, representing a half share out of the land bearing Khewat Khatauni No. 565/525, Khasra No. 94/18 (7-8), 19(8-0), 20/1 (6-3), 21/1 (1-7) and 94/21/3 (2-0) situated in village Billa, Tehsil and District Panchkula. On 20 March 2012, the Civil Judge (Senior Division), Panchkula decreed the suit except for land bearing 2 kanals mentioned in the sale deed in exhibit-D3. Insofar as is material, the decree provided thus : "Resultantly, a decree for possession by way of specific performance of the agreement to sell Ex.P1 dated 08.12.2003 is passed in favour of the plaintiff in respect of remaining suit land, i.e., except the land of 2 kanals mentioned in sale deed Ex. D3, on making balance sale consideration amount to the L.Rs. of defendant No.1, after deducting the consideration of aforesaid 2 kanals land. The L.Rs of the defendant No.1 are directed to execute the sale deed in respect of the remaining suit land within a period of two months from today in receipt of remaining balance sale consideration after deduction of consideration of 2 kanals land and in case of failure of the L.Rs. of defendant No.1 to do so, the plaintiff is entitled to get the sale deed executed and registered quo the aforesaid land through the Court agency." 3. Both the appellant and the respondent filed appeals against the judgment of the Trial Court. On 23 April 2012, the Additional District Judge, Panchkula issued notice in the appeal and on the application for stay filed by the respondent. 4. On 15 June 2012, the appellant filed proceedings before the Civil Judge (Senior Division), Panchkula for seeking the execution of the decree passed in his favour, pending the first appeal. 5. On 23 April 2012, the Additional District Judge, Panchkula issued notice in the appeal and on the application for stay filed by the respondent. 4. On 15 June 2012, the appellant filed proceedings before the Civil Judge (Senior Division), Panchkula for seeking the execution of the decree passed in his favour, pending the first appeal. 5. On 19 May 2014, the respondent filed objections to the execution petition. 6. On 17 January 2015, the Additional District Judge upheld the judgment and order of the Trial Court while dismissing both sets of appeals filed respectively by the appellant and the respondent. 7. On 23 February 2015, the executing court rejected the objections of the respondents to the execution of the decree and allowed the appellant''s execution petition. The respondent then filed a civil revision before the High Court which resulted in the judgment of the learned Single Judge dated 1 June 2018 by which the order of the executing court was set aside. The High Court held that there was a failure on the part of the appellant to deposit the balance of the sale consideration within a period of two months from the date of the decree and as a consequence the decree had been rendered inexecutable by virtue of the provisions of Section 28 of the Specific Relief 1963. The High Court noted that of the total sale consideration of Rs. 8,35,000/- under the terms of the agreement to sell, the appellant in 2004 had paid an amount of Rs. 5,85,000/- while the balance of Rs. 1,15,864/-, consequent upon the partial decree in the suit had been deposited on 19 February 2015 after the dismissal of the first appeals on 17 January 2015. The High Court opined thus: "A perusal of the operative portion of the decree under execution shows that though the lower court has not specifically fixed any time for deposit of the amount of balance sale consideration but it has been provided in unambiguous terms that the sale deed is to be executed within two months from the date of judgment upon deposit of balance sale consideration." 8. According to the High Court, the time frame for the deposit of the balance sale consideration was implicit in the decision of the Trial Court which had ordered the execution of the sale deed within two months from the date of the judgment upon deposit of the remaining sale consideration. The High Court held that the judgment and decree had not been stayed during the pendency of the first appeals and the mere filing of an appeal did not amount to a stay under Order 41 Rule 5 of the Code of the Code of Civil Procedure 1908. Hence, it was not open to the appellant to seek the execution of the decree on account of the lapse of the period stipulated in the decree for its execution. The High Court has relied upon the provisions of Section 28 of the Specific Relief Act. It also observed that no application for the enlargement of time had been filed by the appellant. The correctness of this view falls for determination in the present appeal. " 14. The Hon''ble Apex Court then considered that there was a litigation in between the parties and the matter had reached up to the Appellate Court. By applying the ''doctrine of merger'' which was explained by the Hon''ble Apex court in the case of Kunhayammed V/s. State of Kerala, (2000) 6 SCC 359 , the Hon''ble Apex Court concluded that the permission to deposit such amount cannot be faulted. The conclusions of the Hon''ble Apex Court in paragraph Nos.26 to 28 are as under:- "26. In the above case, the facts before this Court were that an agreement to sell had been executed nineteen years earlier on 16 February 1980 and no explanation was forthcoming as to why the balance of the sale consideration was not deposited within the time granted by the court. No application for extension was made under Section 28 of the Specific Relief Act. This Court observed that merely because a suit was filed within a period of three years prescribed by Article 54 of the Limitation Act 1963, that did not absolve the vendee-plaintiff from demonstrating that he was ready and willing to perform the agreement and whether the non-performance was on account of obstacles placed by the vendor or otherwise. In that context, this Court held: "17. In that context, this Court held: "17. ...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, can the court, as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree after 5 years of passing of the decree by the trial court and 3 years of its confirmation by the appellate court? It is not the case of the respondent decreeholders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the respondent decree-holders and no extension of time be granted to them to comply with the decree." 27. The facts noted in the above extract from the judgment indicate a situation which is factually distinct. In that case, the balance of the sale consideration was sought to be deposited three years after the confirmation of the decree by the Appellate Court. In the present case, the facts clearly are to the contrary. The appellant had deposited an amount of Rs. 5,85,000/- The partial decree of the Trial Court in the suit for specific performance was placed in issue before the Appellate Court. After the Appellate Court affirmed the decree on 17 January 2015, the decree of the Trial Court merged with that of the Appellate Court. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. Barely a month thereafter, on 19 February 2015 the appellant deposited the balance of the sale consideration. The appellant acted bona fide. The equities in a matter arising out of a decree in a suit for specific performance must weigh in his favour. The executing court was justified in rejecting the specious objections of the respondents. The High Court acted in excess of its revisional jurisdiction. The High Court impermissibly substituted the decree for specific performance with an order for refund of the sale consideration, beyond the earnest money of Rs. 2,00,000/- to the decree holder. The reasons which weighed with the High Court in doing so as well as its ultimate directions are unsustainable. In a Civil Revision arising out of an execution proceeding, the High Court has modified the decree. Such a course was not open in law." 15. The facts in this case having been reproduced in the opening paragraphs of this judgment do not require repetition. It is apparent that the decree holder had immediately deposited the amount, as directed, on 9.1.2009 by obtaining the permission of the trial Court. The defective cheque was replaced by a demand draft which indicates the bona fides of the decree holder. As the judgment debtor was successful in acquiring a stay order from the Appellate Court by which the decree was stayed, the trial Court returned the demand draft to the decree holder. Further litigation between the parties has been narrated herein-above and considering the status of the decree holder, there was no reason for the decree holder to once again move the trial Court and hand over a new demand draft. After the order of the Hon''ble Apex Court dismissing the Special Leave Petition and rejecting the review application came to the knowledge of the decree holder, it initiated the execution proceedings and deposited the demand draft in the said proceedings. 16. Considering the above, I find that the impugned order passed by the Executing Court could not be branded as being perverse or erroneous. This petition is dismissed. Rule is discharged. 17. The fairness of the decree holder in offering Rs.2,50,000/- per acre needs appreciation and despite this petition is being dismissed, the decree holder has compensated the judgment debtor by stating that the additional amount shall be deposited before the Executing Court within 15 days. This petition is dismissed. Rule is discharged. 17. The fairness of the decree holder in offering Rs.2,50,000/- per acre needs appreciation and despite this petition is being dismissed, the decree holder has compensated the judgment debtor by stating that the additional amount shall be deposited before the Executing Court within 15 days. In order to avoid any confusion or ambiguity, it is noted that the decree holder has already paid Rs.2,50,000/- for 3 acres of land in 2000 itself and the judgment debtor has received the money. The said area of land is, therefore, excluded. For the remainder 6 acres of land the amount would be Rs.15,000,00/- as per the offer of the decree holder. An amount of Rs.5,00,000/- is already deposited with the Executing Court. The decree holder shall therefore deposit the remainder amount of Rs.10,00,000/- within 15 days before the Executing Court.