Back
2020 Supreme(Bom) 491
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
Ravindra V. Ghuge, J.
Ruprao - Appellant
Versus
M/s Shewalkars Herbals Pvt. Ltd. - Respondent
Writ Petition No. 4216 of 2016
Decided On : 23-01-2020
A.M. Jaltare, Advocate, Shyam Dewani, Advocate
The main legal point established in the judgment is the application and interpretation of Section 28(3) of the Specific Relief Act, 1963, in the context of extending the time for depositing the balance amount in specific performance cases.
Headnote:
Specific Performance - Extension of Time - Specific Relief Act - [Section 28(3) of the Specific Relief Act, 1963] - [AIR SC 918, 2019 SCCOnLineSC 900] - The court discussed the application of Section 28(3) of the Specific Relief Act and the interpretation of the provision in light of the judgments in AIR SC 918 and 2019 SCCOnLineSC 900. The court considered the fairness of the decree holder in offering additional compensation and the implications of the doctrine of merger in reaching its decision.
Fact of the Case:
The petitioner, a judgment debtor, entered into an agreement to sell agricultural land to the respondents. The sale deed was not executed, and the decree holder sought specific performance of the contract. The trial court decreed the suit and directed the decree holder to deposit the balance amount within 30 days. The judgment debtor filed appeals and sought a stay. The decree holder faced challenges in depositing the amount due to various legal proceedings and jurisdictional changes.
Finding of the Court:
The court found that the impugned order passed by the Executing Court was not erroneous and dismissed the petition. The fairness of the decree holder in offering additional compensation was appreciated, and the decree holder was directed to deposit the remainder amount within 15 days.
Issues: The issues involved the extension of time for depositing the balance amount, the fairness of the decree holder's offer, and the implications of the doctrine of merger.
Ratio Decidendi: The court considered the application of Section 28(3) of the Specific Relief Act and the interpretation of the provision in light of relevant judgments. It also evaluated the fairness of the decree holder's offer and the implications of the doctrine of merger.
Final Decision: The petition was dismissed, and the decree holder was directed to deposit the remainder amount within 15 days.
JUDGMENT
Ravindra V Ghuge, J. - Rule. Rule returnable forthwith and heard finally by the consent of the parties.
2. The petitioner judgment debtor is aggrieved by the order dated 11.7.2016 by which, the Executing Court has allowed application Exh.3 in Special Darkhast No.36/2015 and the decree holder was granted permission to deposit the balance consideration amount of Rs.5,01,000/- in the Court and since the amount was already deposited by D.D. No.072429, on 13.3.2015, the application was disposed off.
3. The factual matrix of this case is that the petitioner judgment debtor had entered into an agreement to sell an agricultural land bearing Kh. No.52, admeasuring 3.64 Hectors, on 2.5.2000, to the respondents for a consideration of Rs.7,51,000/-. As the sale deed was not executed, the decree holder preferred S.C.S. No.386/2005 seeking specific performance of the contract, possession of the suit land and an injunction against the defendant. By judgment dated 12.11.2008, the suit was decreed and the decree holder was directed to deposit the balance amount of Rs.5,01,000/- within 30 days from the date of the order and the judgment debtor was directed to execute the sale deed.
4. On 15.12.2008, the decree holder filed an application for grant of permission to deposit the said amount. By order dated 19.1.2009 the application was allowed and the decree holder deposited the amount. However, on 21.1.2009, the judgment debtor filed a first appeal before this Court bearing No.335/2009 and sought a stay to the judgment and decree. On 5.2.2009, the decree holder realized that one of its staff members had issued cheque from a nonoperative account and, therefore, a demand draft was prepared and an application was moved on 6.2.2009 seeking permission to deposit the demand draft.
5. On 5.3.2009, the judgment debtor moved an application under Section 28(3) of the Specific Relief Act seeking a rescission of contract. On 23.4.2009, the judgment of the trial Court was stayed in the first appeal. The decree holder tendered a reply to the application of the judgment debtor on 6.5.2009. Considering these developments, the demand draft deposited by the decree holder before the trial Court, was returned by the office of the trial Court on 20.5.2009 since the demand draft was not to be deposited in view of the judgment being stayed by this Court.
6. On account of the change in the pecuniary jurisdiction / enhancement of the pecuniary jurisdiction of the District Court, the first appeal preferred by the judgment debtor in this Court was transferred to the District Court on 8.2.2012. After it was received, it was renumbered as R.C.A. No.206/2012. By the judgment dated 28.8.2013, the R.C.A. No.206/2012 was dismissed.
7. The judgment debtor moved Second Appeal No.500/2013 which was dismissed by this Court on 23.12.2013. The Special Leave Petition filed by the judgment debtor was dismissed on 5.5.2014 by the Hon''ble Apex Court and the Review Petition filed by the judgment debtor was rejected on 24.9.2014.
8. The decree holder, after getting the knowledge of the dismissal of the proceedings before the Hon''ble Apex Court, moved an application accompanied with a fresh demand draft for Rs.5,01,000/- along with an application seeking condonation of delay. The trial Court permitted the presentation of the demand draft on 13.3.2015. By order dated 11.7.2016, impugned in this petition, the application for condonation of delay was granted by the Executing Court. The decree holder had initiated the execution proceedings.
9. The learned Advocate for the judgment debtor, though does not dispute the sequence of events narrated above, relies upon the judgment delivered by the Hon''ble Apex Court in the matter of V.S. Palanichamy Chetttiar Firm V/s. C. Alagappan and another, (1999) AIR SC 918 , to support his contention that extension of time, fixed by the trial Court to deposit the balance amount, sought after 5 years, could not be permitted. The learned Advocate theref
