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1999 Supreme(Cal) 302
High Court Of Calcutta
VINOD KUMAR GUPTA, P. K. SEN
TIVOLI PARK APARTMENTS PVT LTD - Appellant
Versus
KUMAR DHIRENDRA MULLICK - Respondent
Appeal From Original Decree 37 Of 1997
Decided On : 06/10/1999
Section 28 of the Specific Relief Act is applicable only when a decree for specific performance of a contract for sale or lease of immovable property has been made and the purchaser or lessee fails to pay the purchase money or other sum within the period allowed by the decree.
Headnote:
SPECIFIC RELIEF ACT, 1963 - SECTION 28 - Rescission of Contract for Sale or Lease of Immovable Property - Decree for Specific Performance - Interpretation and Application.
Fact of the Case:
In a suit for specific performance of an agreement for renewal of lease, an ex-parte decree was passed in favor of the appellant. The respondents filed an application under section 28 of the Specific Relief Act, alleging default by the appellant in payment of the amount as directed in the decree. The trial court set aside the decree, rescinded the agreement, and directed the appellant to restore possession of the property to the respondents.
Finding of the Court:
The court held that the order passed by the trial court was patently illegal and suffered from gross irregularities. It found that the appellant's possession of the property was not relatable to the agreement in question and that the trial court had no jurisdiction to set aside the decree or direct the restoration of possession.
Issues: 1. Whether section 28 of the Specific Relief Act was applicable in the case. 2. Whether the trial court had the jurisdiction to set aside the decree and direct the restoration of possession.
Ratio Decidendi: 1. Section 28 of the Specific Relief Act is applicable only when a decree for specific performance of a contract for sale or lease of immovable property has been made and the purchaser or lessee fails to pay the purchase money or other sum within the period allowed by the decree. In the present case, the decree did not fix or allow any period for payment of money, and the agreement did not provide for any such period. Therefore, section 28 was not applicable. 2. The trial court had no jurisdiction to set aside the decree or direct the restoration of possession. Section 28 only empowers the court to rescind the agreement, and it does not contemplate the setting aside of the decree. Furthermore, the appellant's possession of the property was not obtained under the agreement in question, but under a valid lease.
Final Decision: The appeal was allowed, and the order of the trial court was set aside.
( 1 ) -THIS appeal is directed against an Order dated 31st July, 1996 passed by the learned Assistant District Judge, 2nd court, Alipore in proceedings under section 28 of the Specific Relief Act filed by the Respondents in this appeal. The brief facts leading to filing of the appeal may be stated as hereinbelow: the Appealant Tivoli Park Apartments (Pvt) Ltd. , a Company incorporated under the Companies Act filed Title Suit No. 176 of 1981 in the court of learned Assistant District Judge, Alipore on 29th August, 1981 wherein a decree of Specific Performance in respect of an agreement executed on 16th August, 1980 was prayed for by the Appellant (Plaintiff in the suit ). The subject matter of the aforesaid Suit and the dispute in the present appeal both relate to a piece of land in premises No. 225, A. J. C. Bose Road, Calcutta. The Respondents in this appeal are the Trustees and Shebaits of the Trust Estate of Raja Rajendra Mallick Bahadur. On 25. 11. 60 a lease in respect of the property in question was executed in favour of one Md. Ismail for a period of 21 years commencing from 1-05-1960. By a Deed of Assignment executed by the aforesaid Md. Ismail on 20th August, 1970, the leasehold rights in respect of the property in question were transferred by the aforesaid lessee Md. Ismail in favour of the appealant for the residuary period of the lease, i. e. 11 years starting from 1970 and going upto 30th April, 1981. It was the case of the appellant before the Assistant District Judge at Alipore in the aforesaid Title Suit No. 176 of 1981 that on 16th August, 1980 even while the aforesaid lease was subsisting, an agreement was entered into between the appellant/plaintiff and the trustees of the property for extension/renewal of the lease in favour of the appellant for a further period of the lease in favour of the appellant for a further period of 70 years from the date of expiry of the lease executed on 25. 11. 60. It was the case of the appellant/plaintiff that the aforesaid oral agreement entered into between the parties on 16. 08. 80 contained the following terms :- (A) The plaintiff (TPAPL) shall pay a sum of Rs. 30,00,000/- (Rupees Thirty lacs) to the respondents (Trustees) at the time of renewal of the Lease as and by way of premium. (b) The rent for the premises in suit shall be Rs. 30,000/- (Rupees Thirty thousand) per month during the whole of the terms of the renewed lease. (c) The plaintiff shall pay a sum of Rs. 4,00,000/- (Rupees four lacs) as and by way of advance and as earnest pending the execution of the Lease. (d) The other terms and conditions of Lease shall be the same as were contained in the existing lease.
( 2 ) THE disputes, thus having arisen between the parties, the respondents disclaiming the existence, execution, validity, legality or enforceability of the aforesaid alleged agreement the appellant/plaintiff filed Title Suit No. 176 of 1981. Vide Judgment and Decree passed on 25-07-85 the learned Assistant District Judge, 2nd court, Alipore passed an ex-parte Decree in favour of the appellant and against the defendants/respondents for Specific Performance in respect of execution, registration and delivery of a proper Lease Deed in favour of the plaintiff/appellant in terms of the aforesaid agreement stated to have been executed on 16-08-80 in respect of the property in question. The following operative part of the Decree may be re-produced for ready reference :"that the suit be and the same is decreed ex-parte with costs against the defendants. Defendants do execute register and deliver a lease and in favour of the plaintiff in terms of agreement as entered between the parties in respect of the premises No. 225b, Acharya Jagadish Chandra Bose Road, Calcutta within 90 days from the date of decree failing which the plaintiff will be at liberty to get the same through the court by way of execution. "
( 3 ) IT is worthwhile to note here that this ex-parte decree has become final as betwee
