IMPORTANT POINT
Agreement to sell – Provisions to grant specific performance of agreement are quite stringent – Equitable considerations come into play.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 17.01.2022 passed by the High Court for the State of Telangana at Hyderabad in CRP No. 2374/2019 & 2304/2019, by which the High Court has dismissed the said revision petitions preferred by the appellant herein, the original revisionist has preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are as under:

That the respondent herein – original plaintiff instituted a Civil Suit No. 291/2013 against the mother of the appellant – original defendant for specific performance of the agreement to sell dated 09.05.2012. In the agreement to sell, the late mother of the appellant agreed to sell the suit property for a total sale consideration of Rs. 23,00,000/-, against which an advance of Rs. 8,00,000/-was paid by the plaintiff.

2.1 That the trial Court passed an ex-parte judgment and decree on 12.10.2013 and passed a decree for specific performance of the agreement to sell dated 9.5.2012. While decreeing the suit, the trial Court directed the respondent – original plaintiff to deposit the balance sale consideration of Rs. 15,00,000/-within two weeks before the trial Court. The trial Court also observed that in case the defendant fails to execute the sale deed on receiving the balance of sale consideration, the plaintiff is at liberty to get it done through process of law. Therefore, under the decree dated 12.10.2013, the plaintiff was required to deposit Rs. 15,00,000/-within a period of two weeks from the judgment and decree dated 12.10.2013. Thus, as per the judgment and decree dated 12.10.2013, the respondent – original plaintiff was required to pay/deposit the balance sale consideration of Rs. 15,00,000/-on or before 21.10.2013. However, the respondent herein – original plaintiff failed to pay/deposit the balance sale consideration as ordered by the trial Court.

2.2 After a period of 853 days from the date of judgment and decree dated 12.10.2013 passed by the trial Court, the original plaintiff – respondent herein filed an application before the trial Court under Section 148 of the Code of Civil Procedure (for short, ‘CPC’) and Section 28 of the Specific Relief Act being I.A. No. 732/2016 in O.S. No. 291/2013 and prayed for extension of time to deposit the balance sale consideration which the plaintiff was required to deposit on or before 21.10.2013, as per the judgment and decree dated 12.10.2013. At this stage, it is required to be noted that after the ex-parte judgment and decree, the mother of the appellant – original defendant died on 13.01.2015 and the appellant herein being legal heir of the original defendant was brought on record. Simultaneously, the appellant, being the legal representative of the original defendant, filed an application being I.A. No. 914/2017 in O.S. No. 291/2013 under Section 28 of the Specific Relief Act, 1963 to rescind the Agreement to Sell dated 9.5.2012.

2.3 Before the trial Court, it was the case on behalf of the plaintiff in support of I.A. No. 732/2016 that he became sick with Jaundice and treated in the hospital from 1.11.2013 to 5.1.2014 and after discharge also confined to house with High Blood Pressure, Diabetes and other diseases. It was also the case on behalf of the plaintiff that ultimately on 9.6.2016 when he contacted the advocate he came to know about the judgment and decree dated 12.10.2013 and the directions given thereunder. Therefore, it was prayed to condone the delay of 853 days and extend the time to deposit the balance sale consideration.

2.4 The said application was opposed by the appellant. It was the case on behalf of the appellant in support of the application under Section 28 of the Specific Relief Act that the plaintiff has wilfully not deposited the balance sale consideration and therefore the agreement to sell dated 9.5.2012 is required to be rescinded under section 28 of the Specific Relief Act. It was also the case on behalf of