Vatsala Shankar Bansole vs Sambhaji Nanasaheb Khandare & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 481

IN THE HIGH COURT OF BOMBAY
R.M.S. Khandeparkar, J.
Vatsala Shankar Bansole .... Petitioner.
Versus
Sambhaji Nanasaheb Khandare another.... Respondents.
Civil Revision Application No. 1865 of 2001, decided on 6-6-2002.
Advocates appeared :
S.G. Deshpande A.R. Choudhari, for petitioner.
Dilip Bodake, for respondent No. 1.

Headnote:Specific Relief Act, 1963 - Section 28 - Decree - For spe- cific performance - Amount of consideration to be deposited within time fixed - Extention of time sought by decree holder - Application for - Re- jected by trial Court - Suit dismissed on failure to deposit amount within time fixed - Revision against - Nature of decree by trial Court - Contended as Preliminary decree - Held - Failure of decree holder to deposit amount within fixed period under decree would not amount recession of contract - Defendant should approach the Court for effective order under Section 28 of S.R. Act - Order impugned not sustainable - Set aside - Matter remanded to trial Court to decide afresh application for extention of time. - Once it is clear that a decree for specific performance has to be in the nature of preliminary decree, merely because there are certain other observation in such a decree like the consequences for failure to deposit the amount within a specified period under the decree, it would not partake of the nature of the final decree or conditional decree. This is also apparent from provisions of law found in the said Section 28 of the Specific Relief Act. According to Section 28 of the Specific Relief Act, when the decree for specific performance of a contract for the sale, has been passed and the purchaser does not within the period allowed by the decree pay the purchase price, the judgment debtor may apply in the same suit in which decree was passed, to have the contract rescinded and on such application the Court may by an order rescind the contract either so far as it relates the party in default or altogether, as the case may require. In other words mere failure on the part of the decree holder to deposit the amount within the stipulated period under the decree for specific performance that by itself would not amount to rescission of the contract which was the subject matter of the suit. In order to rescinded the contract, even in such case, it would be necessary for the defendant to move the Court for effective order under Section 28 of the said Act. Considering the scope of Section 28 of the Specific Relief Act, therefore the observation regarding the dismissal of the suit in case of non payment of balance amount within specified period in decree for specific performance it could not result in such a decree partaking of the nature of a final decree and, therefore, it cannot be said that Court becomes functus officio once such a decree is passed. The time granted to the decree holder/petitioner to deposit the balance amount was of one month from the date of the decree. The application filed for extension of the time apparently discloses that the petitioner was ill for about 15 days prior to the filing of the application and therefore, she prayed for extension of one month s time to pay the balance amount. The time was apparently granted under the decree to facilitate the petitioner to make payment of the balance amount, and in terms of Order XX, Rule 12-A it is necessary for the Court to grant the time to pay the balance amount while decreeing the suit for specific performance. It should be always remembered that the final end of law is justice, and so that means to it too should be informed by equity as has even ruled by the Apex Court in K. Kalpana s case AIR 1980 SC 512. Being so, merely because there was failure to pay the said amount within one month and the extension was asked for only for one month, it was not a case of the petitioner being a persistent defaulter. Besides the time having been granted for the benefit of petitioner to enable her to deposit the balance amount, she could not have been denied the fruits of the decree in her favour merely on account of few days delay in making payment of balance amount.

JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Heard the learned Advocates for the petitioner and the respondent No. 1. None present for the respondent No. 2, though served. The notice was specifically issued to the respondents for final disposal of the matter and accordingly when the matter was taken up for final hearing on Monday last, by consent the same was adjourned for final hearing today, and accordingly the Advocates for the petitioner and the respondent No. 1 were heard. Perused the records.

2. The petitioners challenge the order dated 8th August, 2001, passed in Special Civil Suit No. 200 of 2000 under Exhibit 35-A by the trial Court. By the impugned order, the trial Court has dismissed the application filed by the petitioner for extension of time to deposit the amount which the petitioner was required to deposit under the decree dated 6th July, 2001 in the said suit consequent to the suit for specific performance of the agreement between the parties having been decreed in favour of the petitioner.

3. The facts, in brief, relevant for the decision in the matter are that the petitioner herein filed the said suit for specific performance of the agreement between the parties in relation to plot No. 13-B situated in C.T.S. No. 601/B at Solapur. The same was contested by the respondent No. 1. The trial Court after considering the evidence led by the parties decreed the suit by decree dated 6th July, 2001. Accordingly, the respondent No. 1 was directed to execute the sale-deed of the suit property in favour of the petitioner on or before 8th August, 2001 on the petitioner's depositing in the trial Court a sum of Rs. 1,35,000/- minus costs of the suit and the earnest amount of Rs. 35,000/- within a month. It was also observed that in case of failure on the part of the petitioner to deposit the said amount as directed, the suit shall stand dismissed. It was further directed that if the respondents fail to execute the sale-deed on deposit of the amount as directed, the petitioner may apply to the Court for execution of the sale-deed and the petitioner would be entitled for possession of the property after the execution of the sale-deed. The petitioner did not deposit the amount within a period of one month from the date of the said decree but on 8th August, 2001, filed an application before the trial Court being Exhibit 35-A, contending that the petitioner was ill for about 15 days prior to the filing of the said application and, therefore, prayed for extension of one month's time for deposit of the amount. The same was dismissed by the trial Court by observing that, "Rejected since not tenable". Thereafter the petitioner filed another application on 11th September, 2001 seeking permission to deposit the balance amount. The same was also rejected by the trial Court observing that the Court was functus officio, in view of the judgment and decree dated 6th July, 2001 in the said suit.

4. The impugned order is sought to be challenged mainly on the ground that the Court below erred in dismissing the application dated 8th August, 2001, holding the same to be not tenable when, in fact, the decree passed in the said suit being for the specific performance of the agreement in favour of the petitioner and the same was a preliminary decree and the Court had ample jurisdiction and power to extend the time fixed under the said decree till passing of the final decree. Reliance is placed in the decision of the Nagpur High Court in the matter of (Gokul Prasad v. Fattelal)1, reported in A.I.R. 1946(33) Nagpur 29; of the Madras High Court in (Metta Rama Bhatlu v. Metta Annayya Bhatlu)2, reported in A.I.R. 1926 Madras 144; of the Division Bench of the Allahabad High Court in (Someshwar Dayal v. Widow of Lalman Shah and others)3, reported in A.I.R. 1958 Allahabad 488; of the Apex Court in the matter of (Smt. Periyakkal v. Smt. Dakshyani)4, reported in A.I.R. 1983 S.C. 428; as well as of learned Single Judge of this Court in the matter of (Daxa N. Gandh

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2002 Supreme(Bom) 481

Cases Referred (2)