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2022 DIGILAW 765 (AP)

Kanchenapalli Vimala v. Bandaru Srinivasa Rao

2022-08-17

BANDARU SYAMSUNDER

body2022
ORDER: This Civil Revision Petition is filed by the petitioner under section 115 of Civil Procedure Code (in short CPC) against the Orders passed by the learned I Additional District Judge, Ongole in IA. No.2302 of 2014 in OS.No.38 of 2013, dated 19.01.2015 wherein and whereby the learned trial Judge dismissed the petition filed by the petitioner under Section 5 of Limitation Act to condone the delay of 213 days in depositing balance of sale consideration amount into Court. 2. The case of the revision petitioner in brief is that she filed suit against the respondents for specific performance of agreement of sale, dated 25.02.2010 and respondents were set exparte on 10.06.2013 and suit was decreed on 14.03.2014 directing the petitioner to deposit balance of sale consideration of Rs.9,62,000/- with interest @ 18% per annum from 06.05.2010 till the date of passing of decree on the balance sale consideration within one month from the date of the order. The petitioner filed petition praying the Court to condone the delay of 213 days in depositing balance of sale consideration together with interest on the ground that she shifted her residence and she was suffering from jaundice and after she recovered when she approached her counsel, she came to know about passing of decree and about deposit of sale consideration due to that she failed to deposit sale consideration within 30 days as directed by the Court due to that delay of 213 days occurred and sought permission to deposit balance of sale consideration amount by condoning the delay. 3. The respondents not chosen to contest the petition before the trial Court. 4. After hearing learned counsel for the petitioner, the learned trial Judge dismissed the petition with an observation that after passing of a decree, there is escalation of prices after formation new capital of Andhra Pradesh and there are no bonafides on the part of the petitioner seeking extension of time, and it is also not maintainable. 5. Aggrieved by the Orders passed by the learned trial Judge, the present Civil Revision Petition is filed by the revision petitioner stating that orders of trial Court is illegal, arbitrary and contrary to law and trial Court erred in dismissing the petition filed by her to enlarge the time to deposit the balance of sale consideration without appreciating the facts and circumstances of the case. She submits that as she obtained decree for specific performance, failed to deposit balance of sale consideration as per the decree, due to the circumstances which she explained by her, which were not denied or controverted by the respondents due to that trial Court should have allowed the petition and if time to deposit the balance of sale consideration is not enlarged, she will be put to irreparable loss and hardship though obtained decree for specific performance. She prays to allow the revision petition. 6. I have heard learned counsel for the revision petitioner. 7. Notice sent to the respondents returned unserved, as respondents remained exparte in the suit stage and also in the petition filed before trial Court, this Court proceeded to hear the learned counsel for the revision petitioner. 8. It is the contention of the learned Advocate for the revision petitioner that respondents executed an agreement of sale in favour of the petitioner on 25.02.2010 who agreed to sell the plaint schedule property for Rs.11,62,000/-, out of which the petitioner paid Rs.2,00,000/- and later as respondents failed to receive balance of sale consideration amount, and as they failed to execute registered sale deed, the petitioner filed suit for specific performance, which was decreed in favour of the petitioner on 14.03.2014, wherein the trial Court directed the petitioner to deposit balance of sale consideration of Rs.9,62,000/- with interest @ 18% per annum from the date of agreement of sale till passing of decree within one month, which petitioner failed to deposit due to her illhealth and she also filed medical certificate issued by Praja Vaidyasala, dated 20.03.2014 to support her contention. He argued that though respondents have not denied the contention of the petitioner, the learned trial Judge without any basis observed that there is escalation of prices of immovable property after formation of new capital and dismissed the petition filed by the revision petitioner to condone the delay of 213 days in depositing balance of sale consideration amount, which observation is not tenable and liable to be set aside. He prays to allow the revision petition. 9. Now the point for determination is:- “Whether the Orders under challenge are sustainable and tenable and whether the same warrants any interference by this Court?” 10. He prays to allow the revision petition. 9. Now the point for determination is:- “Whether the Orders under challenge are sustainable and tenable and whether the same warrants any interference by this Court?” 10. POINT:- Before going to the merits of the case, it would be beneficial to quote Section 28 of Specific Relief Act, which reads as under:- “Section 28. Recision in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which h as been decreed:- (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immoveable 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 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 or a proper conveyance of 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, lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the Court”. 11. A reading of Section 28 (1) of Specific Relief Act, makes it abundantly clear that the Court is empower to extend the time in the event of failure of the plaintiff to pay the amount as per the decree. 12. In the present case, though the respondents have not contested the suit and also not contested the petition, the trial Judge proceeded to dismiss the petition seeking condonation of delay of 213 days for depositing balance of sale consideration amount. The contention of the petitioner with regard to her ill-health supported by medical certificate is unchallenged, which learned trial Judge ought to have believed as dismissal of the petition will result in nullifying the decree passed by the trial Court in favour of the petitioner. 13. The contention of the petitioner with regard to her ill-health supported by medical certificate is unchallenged, which learned trial Judge ought to have believed as dismissal of the petition will result in nullifying the decree passed by the trial Court in favour of the petitioner. 13. There is no dispute that law of limitation has to be applied with all its rigour prescribes by statue, but there is no dispute that Section 28 of Specific Relief Act gave discretion to the Court to extend the time for deposit of balance of sale consideration amount. In the decisions relied on by the learned trial Judge in P.R.Yelumalai vs. N.M.Ravi, the Hon’ble Apex Court held that “ it would suffice to say that the Court has the discretion to extend the time upon an application made by the party required to act within a stipulated time period. Extension of time can be granted even after the expiry of the period”. In the above case, as seller opposed prayer of the petitioner therein seeking extending time to deposit balance of sale consideration amount after expiry of period granted by the Court, as there was no sufficient reason mentioned, the Apex Court upheld the dismissal of application for extension of time by the trial Court. In the decisions relied on by the learned trial Judge, the respondents therein have opposed the reason stated in the petition and thereafter Apex Court held that there are no bonafides on the part of the petitioner therein seeking extension of time, which is not maintainable. 14. Further, in an adversary system obtaining in India, a country inhabited mostly by poor, non-literate or semiliterate persons unaware of the basic knowledge of substantive and procedural laws enough chances and opportunities should be given to the litigants to fight out litigations in a fair manner. Subject to the constraints of law, a contestant should be given a free and fair opportunity to contest an action in Court and a lay client should not be made to suffer for negligence of lawyer. When there are no latches on the part of the client, latches on the part of the advocate would not disentitle petitioner to appropriate relief. 15. When there are no latches on the part of the client, latches on the part of the advocate would not disentitle petitioner to appropriate relief. 15. There is no basis for the learned trial Judge observing that after passing of decree, there is escalation of prices after formation of new capital for Andhra Pradesh, which not admitted either petitioner or the respondents by filing counter. Therefore, the observation of learned trial Judge with regard to escalation of prices of plaint schedule property is not sustainable in law. The learned trial Judge ought to have condoned the delay of 213 days in depositing balance of sale consideration amount with interest. 16. The Civil Revision Petition is allowed and the orders under revision in IA. No.2302 of 2014 in OS.No.38 of 2013, dated 19.01.2015 are set aside. The trial Court is directed to permit the revision petitioner to deposit balance of sale consideration amount of Rs.9,62,000/- with interest @ 18% per annum from 26.05.2010 till the date of passing of decree on the balance of sale consideration by condoning the delay of 213 days in depositing the balance of sale consideration amount. The revision petitioner shall deposit the same before the trial Court on or before 01.09.2022. Consequently, miscellaneous petitions filed in this revision petition, shall stand closed. There shall be no order as to costs.