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Gauhati High Court · body

2020 DIGILAW 452 (GAU)

Anjana Rajbonshi v. Pradip Tibrewal

2020-04-28

KALYAN RAI SURANA

body2020
JUDGMENT : 1. Heard Mr. P. Sundi, learned counsel for the petitioner. Also heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. M. Sahewalla, learned counsel for the respondents. 2. This application under article 227 of the Constitution of India is directed against the order dated 3.8.2018, passed by the learned Court of Civil Judge, Sonitpur, Tezpur in Misc. (J) Case No. 11/2018, in connection with T. Ex. No. 14/2015. Facts of the case 3. The respondents are the plaintiffs in T.S. No. 11/2013, which was filed against the petitioner-defendant herein for specific performance of contract (i.e., agreement for sale), execution and registration of sale deed, recovery of possession, alternatively praying for decree for Rs. 15.00 lakh as compensation and damages in addition to compensation under section 73 of the Contract Act, for permanent injunction, cost and any other reliefs. As per the plaint, the agreed sale consideration for 2K-10L land covered by dag No. 285, K.P. Patta No. 175 of Village Deurigaon, Mouza Bhairabpad, P.S. Tezpur, Dist. Sonitpur was Rs. 15.00 lakh at the rate of Rs. 6 lakh per katha and on 5/06.11.2010, the respondents paid to the petitioner an advance of Rs. 21,000. On 8.11.2010, the parties entered into an agreement for sale and a further sum of Rs. 2 lakh was to the petitioner by a cheque dated 9.11.2010, drawn on the firm of respondent No. 2. The balance sale consideration of Rs. 12.79 lakh was payable at the time of execution of the sale deed. It was projected that on several occasions, request was made to the petitioner to accept the sale consideration, but on failure to perform their part of the contract, the respondents issued an advocate's notice dated 30.1.2012, followed by another notice dated 4.9.2012 and thereafter, the suit was filed on 15.5.2013. 4. The petitioner received the summons and did not contest the suit and, therefore, by order dated 21.9.2013, the suit was ordered to proceed ex parte against the petitioner. The learned trial court framed only one issue for trial, i.e., whether the plaintiff is entitled to a decree as prayed for? 5. The PW-1 had exhibited money receipt of Rs. 21,000 (Ext. 1), bank statement of account (Ext. 2), Agreement for Sale (Ext. 3), advocate's notice dated 30.1.2012 and 4.9.2012 (Ext. 4 and Ext. 5), postal receipt [Ext. 4(1) and Ext. 5(1)], acknowledgement cards [Ext. 4(2) and Ext. 5(2)]. 5. The PW-1 had exhibited money receipt of Rs. 21,000 (Ext. 1), bank statement of account (Ext. 2), Agreement for Sale (Ext. 3), advocate's notice dated 30.1.2012 and 4.9.2012 (Ext. 4 and Ext. 5), postal receipt [Ext. 4(1) and Ext. 5(1)], acknowledgement cards [Ext. 4(2) and Ext. 5(2)]. The learned trial court had arrived at a finding that the respondents were ready and willing to perform their part of the contract and to pay the balance price of Rs. 12,79,000 but the petitioner committed breach of contract by not performing her part of the contract as per terms and conditions of the agreement. Accordingly, it was held that the respondents were entitled to the decree and the suit was decreed ex parte. The petitioner was directed to execute the registered sale deed in favour of the respondents by obtaining necessary permission for sale of the suit land from the concerned authorities and to accept the balance sale consideration of Rs. 12,79,000. The petitioner was also directed to execute the registered sale deed in favour of the respondents at the cost of the respondents and for delivery of vacant possession of the suit property by evicting the petitioner with her men and materials therefrom. 6. To enforce the decree, the respondents had filed T. Ex. No. 4/2014. On receipt of notice thereof, the petitioner had filed a petition under order IX, rule 13, CPC for setting aside the ex parte decree, which was registered as Misc. (J) Case No. 59/2014. While by order dated 2.12.2015, T. Ex. Case No. 4/2014 was dismissed for not taking steps, the said Misc.(J) Case No. 59/2014 was also dismissed for default by order dated 8.2.2016. In the meanwhile, the respondents filed T. Ex. Case 14/2015 for execution of the said decree. The learned executing court issued a notice to the petitioner in the said execution case together with a draft sale deed, requiring the petitioner to show as to why the draft sale deed should not be accepted. On receipt of the said notice, the petitioner filed another petition under order IX, rule 9 read with sections 151 and 141, CPC for setting aside the said order dated 8.2.2016, which was registered as Misc. (J) Case No. 8/2016 along with a separate application under section 5 of the Limitation Act, 1963 for condonation of delay. 7. On receipt of the said notice, the petitioner filed another petition under order IX, rule 9 read with sections 151 and 141, CPC for setting aside the said order dated 8.2.2016, which was registered as Misc. (J) Case No. 8/2016 along with a separate application under section 5 of the Limitation Act, 1963 for condonation of delay. 7. The petitioner filed a petition under section 47, CPC objecting to the execution of the decree, which was registered as Misc. (J) Case No. 11/2018. The respondents filed their written objection to the said petition. The learned executing court by its order dated 3.8.2018, rejected the said petition. The aggrieved petitioner has approached this court for assailing the said order. Submissions on behalf of the petitioner 8. The learned counsel for the petitioner has submitted that the judgment and decree was not in compliance of the provisions of order XX, rule 12A, CPC, as no time was fixed by the learned trial court for payment of the balance sale consideration, for which the decree is not executable. It is also submitted that in the second application for execution, being T. Ex. No. 14/2015, the respondents had concealed about their previous application for execution (T. Ex. 4/2014), as such, the respondents did not comply with the requirement of order XXI, rule 11(f), CPC. It is submitted that instead of issuing a notice of execution, the learned executing court had directly served notice to the petitioner as to why the draft sale deed should not be accepted, which had caused prejudice to the petitioner. Moreover, it is submitted that the said notice was not in conformity with the decree. It is further submitted that the respondents had not deposited the balance sale consideration before the learned executing court and, as such, the said learned court ought not to have called upon to register the sale deed in favour of the respondents. It is also submitted that as the learned executing court did not record its satisfaction that the petitioner has refused to execute the sale deed as per order XXI, rule 34(1), CPC, as such, the issuance of notice with draft sale deed was premature. Accordingly, the learned counsel for the petitioner has prayed for interference with the impugned order. It is also submitted that as the learned executing court did not record its satisfaction that the petitioner has refused to execute the sale deed as per order XXI, rule 34(1), CPC, as such, the issuance of notice with draft sale deed was premature. Accordingly, the learned counsel for the petitioner has prayed for interference with the impugned order. In support of his submissions, the learned counsel for the petitioner has placed reliance on the case of (i) Prem Jeevan v. K.S. Venkata Raman, (2017) 11 SCC 57 , (ii) Ramankutty Guptan v. Avara, (1994) 2 SCC 642 and (iii) Rina Bora v. Sangeeta Chowdhury, (2019) 5 Gau LR 607, (2019) 5 Gau LT 88. Submissions on behalf of the respondents 9. Per contra, the learned senior counsel for the respondents has submitted that the petitioner had not taken steps in the suit despite receipt of summons of the suit and, as such, the ex parte decree against the petitioner was fully justified. It is submitted that though the petitioner had taken a defence that her mother was ill and she had expired, but there is no disclosure as to where her mother was residing and whether there were other members in her mother's family. Moreover, no medical prescriptions, medical reports or the death certificate of the petitioner's mother was disclosed by the petitioner. It is also submitted that false allegations has been made against the counsel previously engaged by the petitioner and as the said counsel was not made a party to the proceeding, the Court ought not to accept the unsubstantiated allegations made against the counsel for the petitioner. It is further submitted that in the execution proceeding, the stand taken by the respondents in their written objection filed in Misc. (J) Case No. 8/2018 was that the petitioner had willfully absented from taking steps in the suit to cause delay in the suit and immediately after the ex parte decree was passed, she had appeared and filed Misc. (J) Case No. 59/2014 to set aside the ex parte decree by changing her counsel. It is submitted that the further stand of the respondents was that during the pendency of the said Misc. (J) Case No. 59/2014, the petitioner had sold the suit land fraudulently to another person by changing the dag and patta numbers in partition case. (J) Case No. 59/2014 to set aside the ex parte decree by changing her counsel. It is submitted that the further stand of the respondents was that during the pendency of the said Misc. (J) Case No. 59/2014, the petitioner had sold the suit land fraudulently to another person by changing the dag and patta numbers in partition case. It is submitted that it was mentioned in the written objection that the intention of the petitioner was to cheat the respondents and that the suit land was transferred to another person at a higher sale consideration and accordingly, it is submitted that the successive petitions were filed just to drag the matter. It is submitted that as the petitioner has sold of the suit land to a third party, as an alternative relief, this is a fit case wherein the petitioner may be directed to refund the advance sale consideration already paid to her by the petitioners with bank lending rate of interest. In support of his submissions, the learned senior counsel for the respondents has placed reliance on the case of (i) Chanda (Dead) through LRs. v. Rattni, (2007) 14 SCC 26 ) (ii) Yeshoda v. K. Nagarajan, (1996) 11 SCC 228 . 10. The following points of determination arise in this case: (i) Whether for non-compliance of requirement of rule 12A of order XX of the Civil Procedure Code, the decree for specific performance of contract relating to agreement for sale would be frustrated and rendered in executable? (ii) Whether non-disclosure of previous execution petition, being T. Ex. Case No. 4/2014 in the execution petition, registered as T. Ex. Case No. 14/2015 would render it not maintainable? Discussion on point of determination No.(i) 11. It is seen that the ex parte decree is in force and that the said ex parte decree has not been set aside. The order portion of the judgment is reproduced herein below:- “ORDER 7. In result, the plaintiff s suit is decreed ex parte with the following reliefs The defendant is as directed to execute the registered deed of sale in favour of the plaintiffs by obtaining necessary permission for sale of the suit land from the concerned authorities and to accept the balance sale consideration of Rs. 12,79,000. In result, the plaintiff s suit is decreed ex parte with the following reliefs The defendant is as directed to execute the registered deed of sale in favour of the plaintiffs by obtaining necessary permission for sale of the suit land from the concerned authorities and to accept the balance sale consideration of Rs. 12,79,000. The defendant is also directed to execute the registered deed of sale in favour of the plaintiff at the costs of the plaintiffs and for delivery of vacant possession of the suit property by evicting the defendant with her men and materials there from. The parties are left to bear their own costs. Prepare a decree accordingly.” 12. Thus, from the above it can be seen that the learned trial court had failed to take note of the provisions of rule 12A of order XX of the CPC and, as such, no time limit was prescribed for the respondents to deposit the balance sale consideration. Therefore, question is raised as to whether such an omission on part of the court be permitted to render the decree invalid, illegal or in executable. No doubt that the endeavour of the court should be to render justice and not to find technicalities and inconsequential irregularities and to frustrate the decree. It would not be out of place to mention herein that Marcus Tullius Cicero, Roman statesman, lawyer and academic philosopher, popularly known as Cicero had described justice as “the disposition of human mind to render to everyone his due”. 13. The learned senior counsel for the respondents had placed reliance on the case of Yeshoda (supra). The said judgment is quoted below:- “1. This special leave petition arises from the order of the Division Bench of the Karnataka High Court dated 19.6.1996 in IA No. 3 in RFA No. 225 of 1984. The admitted position is that in the suit for specific performance the High Court has agreed with the suggestion of the respondent to pay a further sum of Rs 1,80,000. The High Court has extended three months’ time from 21.4.1994 for deposit of the amount. Special leave petition filed in this court was dismissed on 23.9.1994 and within three months thereafter on 17.1.1995 the amount came to be deposited. The High Court has extended three months’ time from 21.4.1994 for deposit of the amount. Special leave petition filed in this court was dismissed on 23.9.1994 and within three months thereafter on 17.1.1995 the amount came to be deposited. An application under section 28 of the Specific Relief Act, 1963 was filed to rescind the decree on the ground that the respondent had committed default in compliance of the conditional decree of the deposit of the amount. The respondent had filed an application for extension of time. The application for rescission of the decree was dismissed and the application for extension of time was allowed. Thus, his special leave petition. 2. It is contended by Mr. Mahale, learned counsel for the petitioners, that after the expiry of the time prescribed by the court, the petitioner has a right to seek rescission of the decree for specific performance for non-compliance. The court, therefore, has no power to enlarge the time. We find no force in the contention. Section 148, Civil Procedure Code gives power to the court to enlarge the time for complying with the orders of the court from time-to-time. Under those circumstances, the court has correctly exercised the discretion since the amount came to be deposited within three months from the date of dismissal of the application under section 28. 3. The special leave petition is accordingly dismissed.” 14. Paragraphs 8 and 9 of the case of Ramankutty Guptan (supra), cited by the learned senior counsel for the respondents are quoted below:- “8. Section 37, CPC enumerates that: “37. Definition of the court which passed a decree- The expression “court passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include- (a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance, and ********* Therefore, it is dear 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. 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, section 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 v. P.S.S. Somasundaram Chettiar, (1980) 1 SCC 630 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 handmaid for justice; and unless the procedure touches upon jurisdictional issue, it should be moulded to sub-serve substantial justice. Therefore, technicalities would hot stand in the way to sub-serve 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 section 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 section 28 is maintainable in the same court. 9. 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. 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 section 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.” 15. Thus, it is seen that in the case of Ramankutty Guptan (supra), it has been held that power under section 28(1) of the Specific Relief Act, 1963 either for extension of time or for rescinding the contract must be exercised in the suit by numbering such an application as an interlocutory application in the suit and not to be taken up in the execution proceeding. 16. Paragraph 9 of the case of Chanda (Dead) through LRs (supra), on which the learned senior counsel for the respondents had placed reliance is quoted below:- “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 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 this section is discretionary.” 17. It would also be appropriate to quote herein below paragraphs 8 to 12 of the case of Prem Jeevan (supra) (quoted from Manupatra), cited by the learned counsel for the petitioner “8. Reference to order 20, rule 12A, CPC shows that in every decree of specific performance of a contract, the court has to specify the period within which the payment has to be made. In the present case, the said period was two months from the date of the decree. 9. In absence of the said time being extended, the decree-holder could execute the decree only by making the payment of the decreetal amount to the judgment-debtor or making the deposit in the court in term of the said decree. In the present case, neither the said deposit was made within the stipulated time nor extension of time was sought or granted and also no explanation has been furnished for the delay in the making of the deposit. No doubt, as contended by the learned counsel for the decree-holders, relying on judgment of this court in Ramankutty Guptan v. Avara, (1994) 2 SCC 642 , in an appropriate case the court which passed the decree could extend the time as envisaged in the Specific Relief, 1963. In the present case no such steps have been taken by the decree-holders. 10. In above circumstances, the contention, advanced on behalf of the decree-holders, respondents herein, that unless the judgment-debtor seeks rescission of the contract in terms of section 28 of the Specific Relief Act, the decree remains executable in spite of expiry of period for deposit, with the only obligation on the part of the decree-holders to pay interest, cannot be accepted. ********* 12. ********* 12. There is no doubt that the above provision permits the judgment-debtor to seek rescission of a contract and also permits extension of time by the court but merely because rescission of contract is not sought by the judgment-debtor, does not automatically result in extension of time.” 18. In the present case in hand, not only the petitioner did not contest the suit, but her application for setting aside the ex parte decree was dismissed and accordingly, the petitioner had applied for restoration of the said dismissed application. Under such circumstances, in light of the ratio laid down in the case of Yeshoda (supra), Ramankutty Guptan (supra), Chanda (supra), and Prem Jeevan (supra), wherein the provisions of section 28 of the Specific Relief Act, 1963 has extensively been dealt with, the court deems it fit to leave it to the parties to seek advice as to their next course of action in the matter. 19. However, in the case of Rina Bora (supra), this court had held that non-mentioning of a specific time period to complete the part of the plaintiff-purchaser in a decree for specific performance of contract shall hit the provision stipulated under section 28 of the Specific Relief Act, 1963. It appears that the said rule 12A of order XX of the CPC had been brought by way of amendment of the CPC in the year 1976 to make the Code in consonance with the provisions of section 28 of the Specific Relief Act, 1963. Hence, the intention appears to be that the vendor, who has suffered a decree for specific performance of contract does not have to endlessly wait for the consideration money in respect of such sale. Accordingly, as nothing contrary could be shown against the ratio laid down in the case of Rina Bora (supra), the court is inclined to answer the point of determination No. (i) by holding that owing to non-compliance of requirement of rule 12A of order XX of the Civil Procedure Code, the decree for specific performance of contract relating to agreement for sale has been rendered in executable and, thus, the impugned order passed by the learned court below is vitiated by jurisdictional error. Point of determination No. (ii) 20. In this regard, as per contention of the petitioner, the previous application for execution, i.e., T. Ex. No. 4/2014 was not disclosed by the respondent in T. Ex. Point of determination No. (ii) 20. In this regard, as per contention of the petitioner, the previous application for execution, i.e., T. Ex. No. 4/2014 was not disclosed by the respondent in T. Ex. 4/2015. Therefore, it appears that the learned executing court had failed to appreciate that the disclosure of previous application for execution is a statutory requirement under order XXI, rule 11(f), CPC. In this regard, the unhesitant opinion of the court is that once it had come to the notice of the learned executing Court that previous application for execution was withheld in T. Ex. Case No. 14/2015, the proper recourse for the said learned court ought to have been to invoke the provisions of sub-rule (1) of rule 17 of order XXI of the Code of Civil Procedure, and the respondents herein ought to have been called upon to comply with the requirements of rules 11 to 14 within a time fixed by it and if the defect was not remedied, the consequences of sub-rule (1A) of rule 17 of order XXI, CPC would follow. In this regard, the court is constrained to hold that the learned executing court had committed jurisdictional error. The point of determination No. (ii) is answered accordingly. 21. Accordingly, in course of answering both the points of determination in favour of the petitioner, the impugned order is found to have been vitiated by jurisdictional error, as such, this application stands allowed. Resultantly, the impugned order dated 3.8.2018, passed by the learned Court of Civil Judge, Sonitpur, Tezpur in Misc. (J) Case No. 11/2018, in connection with T. Ex. No. 14/2015 is set aside. Consequently, the matter stands remanded back to the learned court below by restoring the said Misc. (J) Case No. 11/2018 to the file of the learned Court of Civil Judge, Sonitpur. 22. The learned Court of Civil Judge, Sonitpur shall hear both sides and decide the matter afresh. 23. No. 14/2015 is set aside. Consequently, the matter stands remanded back to the learned court below by restoring the said Misc. (J) Case No. 11/2018 to the file of the learned Court of Civil Judge, Sonitpur. 22. The learned Court of Civil Judge, Sonitpur shall hear both sides and decide the matter afresh. 23. It appears to the court that if the application for execution is free from all defects, there would be no impediment for the court to proceed with the execution in accordance with law, which would redress other points urged by the learned counsel for the petitioner, which need not be gone into at this stage, as the matter is remanded back to the learned court below by taking note of the legal principles as discussed above, but without being influenced observations made herein, which was for the purpose of deciding the matter. 24. The parties are directed to appear before the learned court below on 4.5.2020 in connection with T. Ex. Case No. 14/2015 without any notice for appearance and by producing a certified copy of this order, seek further instructions from the said learned court.