Failure to pay the balance sale consideration within the set time does not abandon the contract; the court retains discretion to extend payment timelines under Section 28 of the Specific Relief Act.

ORDER :

1. This petition is filed seeking for following reliefs:

“1) Issue a writ in the nature of certiorari setting aside the Impugned Order 24.09.2021 passed by the Principal Senior Civil Judge and CJM, Belagavi in EP No.80/2018 vide Annexure-A.

2) Issue a writ in the nature of declaration declaring that the proceedings pending before Principal Senior Civil Judge and CJM, Belagavi in EP No.80/2018 is illegal.

3) Issue any writ/direction/order of this Hon’ble Court deems necessary.”

2. Sri.Prashant F.Goudar, learned counsel appearing for the petitioner submits that the suit filed by the respondent/plaintiff for relief of specific performance was decreed on 30.03.2017 by directing the petitioner/defendant to execute registered sale deed in favour of respondent/plaintiff after receiving balance sale consideration amount of Rs.5,12,500/- within a period of six months from the date of judgment, failing which, the plaintiff is at liberty to get the sale deed registered as per law. It is submitted that the petitioner challenged the same before the Appellate Court and appeal came to be dismissed and second appeal in RSA No.100840/2018 filed before this Court also came to be dismissed. However, the decree holder could not deposit or pay the balance consideration amount of Rs.5,12,500/- during the pendency of the appeal despite there being no stay. It is further submitted that the decree holder has deposited the amount in the executing proceedings without seeking any extension of time for deposit of amount and none of the aspects have been considered by the trial Court while rejecting the application filed by the petitioner under Section 28(1) of the SPECIFIC ACT , 1963. It is also submitted that the decree holder has failed to pay the balance sale consideration amount as per the decree within the stipulated time of six months. Therefore, the decree would become unenforceable. It is contended that, without seeking extension of time to deposit the amount, the execution proceedings are not maintainable and none of the aspects have been considered by the trial Court while dismissing the application for rescinding the contract. The non-payment of amount as per the decree and non-seeking of extension of time disentitles the respondent/plaintiff from execution of the decree. In support of his contention, he placed reliance on the decision of the Hon’ble Supreme Court in the case of Prem Jeevan v. K.S. Venkata Ramana and Another , (2017) 11 SCC 57 . Thus, he seeks to allow the petition by rescinding the contract.

3. Per contra, Sri.Vishwanath Hegde, learned counsel appearing for the respondent supports the impugned order of the trial Court and submits that as per the judgment and decree, the burden is on the petitioner/defendant to execute the sale deed by receiving the balance sale consideration amount within a period of six months. It is submitted that no time is stipulated for the defendant to pay the balance sale consideration amount. It is further submitted that the petitioner/judgment debtor has not sent notice nor made any demand for payment of balance sale consideration amount. Hence, there is no lapse on the part of the respondent/decree holder as per the decree and she has deposited balance sale consideration amount along with the execution petition. Thus, he seeks to dismiss the petition.

4. I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondent, meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced.

5. The point that arises for consideration in this petition is whether the impugned order of the trial Court dated 24.09.2021 passed on an applic