Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 194 (KAR)

Hanumantha Rao v. Ram Rao

2021-02-01

NERANAHALLI SRINIVASAN SANJAY GOWDA

body2021
ORDER : Neranahalli Srinivasan Sanjay Gowda, J. 1. Hanumantha Rao filed a suit against his brother Ramrao seeking specific performance of an agreement of sale dated 18.07.1983 in O.S. No. 131/1984 in relation to Sy. No. 8/1 measuring 17 acres 5 guntas situated at Gudur village in Gangavathi Taluka. The said land had agreed to be sold to him for a sum of Rs. 30,825/-, out of which a sum of Rs. 10,000/- had already been paid. 2. The said suit after contest was decreed on 14.07.1986. The operative portion of the said order, reads as under: " ORDER The defendant shall execute a registered sale deed in respect of the land bearing R.S. No. 8/1 measuring 17 acres 5 guntas of Gudur Village of Gangavathi Taluk after receipt of the balance consideration amount in pursuance of the suit agreement of sale deed within six months from the date of the decree and failing which the plaintiff is at liberty to get the same executed through Court. The defendant shall pay the costs of the suit of the plaintiff and to bear of his own. Draw up a preliminary decree accordingly." 3. Thus, as per the decree dated 14.07.1986, Hanumantha Rao, the plaintiff, was required to deposit the balance sale consideration of Rs. 20,825/- within a period of six months i.e., on or before 30 January, 1981. However, Hanumantha Rao did not deposit the balance sale consideration in order to be entitled for execution of the sale deed. 4. Hanumantha Rao, on the other hand, filed a execution petition in E.P. No. 9/1994 seeking to execute the decree. The executing Court by an order dated 18.08.1995 directed the defendant-Ramrao to execute the registered sale deed within 15 days by receiving the balance sale consideration of Rs. 20,825/-. The Executing Court by the said order directed Hanumantha Rao to deposit the balance sale consideration of Rs. 20,825/- within one week from the date of the order. 5. Hanumantha Rao, the decree holder pursuant to the above order deposited the balance amount on 20.08.1997. 6. The defendant-JDR being aggrieved by the Executing Court's order, directing him to execute the sale deed preferred revision before this Court in CRP No. 2857/1995. This Court by order dated 25.10.1999 set aside the order passed by the executing Court on 18.08.1995. 7. Hanumantha Rao, the decree holder pursuant to the above order deposited the balance amount on 20.08.1997. 6. The defendant-JDR being aggrieved by the Executing Court's order, directing him to execute the sale deed preferred revision before this Court in CRP No. 2857/1995. This Court by order dated 25.10.1999 set aside the order passed by the executing Court on 18.08.1995. 7. This Court while disposing of the revision was also of the view that it would be proper to remand the matter to the trial Court to enable the parties to work out their remedies before the trial Court in accordance with law. This Court observed that it would be open for the respondents to file an application for extension of time and observed that the trial Court may consider the matter if justified in accordance with law. 8. Pursuant to the said order passed in revision, an application for extension of time to deposit the balance sale consideration of Rs. 20,825/- was filed by the plaintiff-decree holder. However, according to the plaintiff, the sons of defendant had in the meantime filed a suit for partition in OS No. 196/2001 and the said suit was dismissed and an appeal against that was filed in RFA No. 248/2003, in which the interim stay of the execution proceedings had been granted. This according to the plaintiff-decree holder prevented the prosecution of the application for extension. 9. It is not in dispute that the execution petition filed i.e., EP No. 9/1994 was ultimately closed on 18.02.2006 on the ground that there was an interim order of stay granted in RFA No. 248/2003. 10. The decree holder thereafter filed one more execution petition in EP No. 49/2013 seeking for execution of the sale deed in his favour. In the said execution petition, an application was filed seeking for extension of time to deposit the balance sale consideration. However, for the reasons best known to the decree holder, a submission was made that the decree holder did not press the said application and the same was dismissed as not pressed. 11. Thus, it is an undisputed fact that though a decree for specific performance was passed on 14.07.1986 granting six months time to the decree holder to deposit balance sale consideration, the balance sale consideration was not paid within the time stipulated and no permission was obtained from the Court for making a belated deposit. 12. 11. Thus, it is an undisputed fact that though a decree for specific performance was passed on 14.07.1986 granting six months time to the decree holder to deposit balance sale consideration, the balance sale consideration was not paid within the time stipulated and no permission was obtained from the Court for making a belated deposit. 12. The JDR in EP No. 49/2013, made an application under Section 28 of the Specific Relief Act requesting the Court to rescind the contract on the ground that the despite the decree for specific performance, the decree holder had failed to pay the balance sale consideration and therefore the contract could not subsist. 13. The said application was initially dismissed by the executing Court and thereafter one more application was filed by the JDR seeking for review of the order dated 17.07.2017 and for allowing the earlier application filed by him in I.A. No. 5 under Section 28 of the Specific Relief Act. 14. The Executing Court after taking into consideration that the balance sale consideration was not deposited by the decree holder within the period of six months granted in the decree dated 14.07.1986 and after noticing that no order had been obtained by the decree holder seeking for extension of time to deposit balance amount has proceeded to allow the review application and also consequently the application filed under Section 28 of the Specific Relief Act. In other words, for the non compliance of the terms of the decree dated 14.07.1986, the executing Court in exercise of its power under Section 28 of the Specific Relief Act has rescinded the contract. 15. It is this order, which is impugned in this writ petition. 16. It is not in dispute that a decree was passed on 14.07.1986, by which the defendant was directed to execute the sale deed on receipt of balance sale consideration and the very said decree stated that the decree holder was to deposit the balance sale consideration of Rs. 20,825/- with in a period of six months. Admittedly, this sum of Rs. 20,825/- was not deposited within six months from 1986. 17. It is to be stated here that admittedly till 1994, there was absolutely no impediment for the decree holder to either deposit the balance sale consideration of Rs. 20,825/- or for that matter seek for extension of time. Admittedly, this sum of Rs. 20,825/- was not deposited within six months from 1986. 17. It is to be stated here that admittedly till 1994, there was absolutely no impediment for the decree holder to either deposit the balance sale consideration of Rs. 20,825/- or for that matter seek for extension of time. It is therefore clear that the decree holder did not exercise his right to pay the balance sale consideration and seek for execution of the sale deed. 18. Section 28 of the Specific Relief Act reads as under: "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." 19. As could be seen from Section 28 of the Specific Relief Act, whenever, in any suit, a decree for specific performance has been passed and the purchaser does not pay the amount within the period allowed by the Court, the vendor has been given a statutory right to apply for rescission of the contract. This right is a valuable right conferred by the statue in favour of the seller. The purpose of Section 28 of the Specific Relief Act is basically to ensure that both parties act in earnest and the decree passed by the Court in exercise of equitable jurisdictions does not hurt either of the parties. 20. A Court granting a decree for specific performance has a corresponding obligation to ensure that the vendor receives the balance sale consideration within a reasonable period. If an said order for payment of balance money is disobeyed, the Court which acted in equity has the bounden obligation to ensure that the justice is done to the vendor and the contract is rescinded. 21. As stated above, since admittedly the decree holder did not deposit the balance sale consideration for more than ten years, in my view, the trial Court has rightly rescinded the contract in exercise of its power under Section 28 of the Specific Relief Act. 22. 21. As stated above, since admittedly the decree holder did not deposit the balance sale consideration for more than ten years, in my view, the trial Court has rightly rescinded the contract in exercise of its power under Section 28 of the Specific Relief Act. 22. The arguments of the learned counsel that in CRP No. 2857/1995, the petitioner was permitted to make an application for extension of time and since the petitioner had made an application pursuant to the said observation, in law, the petitioner had been given a right to seek extension of time. 23. Without going to the said question, it is required to be observed that the petitioner after the passing of the order in CRP, did make an application for extension of time in EP No. 49/2013. However, for the reasons best known to the petitioner, the said application was dismissed as not pressed. The legal effect of this is that the petitioner gave up his right to seek for either extension of time' to deposit the balance sale consideration or seeking for condoning the delay in depositing the balance sale consideration. 24. I am therefore of the view that the petitioner having not complied with the terms of the decree dated 14.07.1986 he would lose the right to obtain a sale deed and correspondingly the JDR would get a right to seek for rescission of the contract. The Executing Court has rightly exercised its power under Section 28 of the Specific Relief Act and rescinded with the contract. 25. I find no infirmity in the order passed by the trial Court and this writ petition is accordingly dismissed.