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GAUHATI HIGH COURT
N. Chaudhury, J.
Sudarshan Paul - Petitioner
Versus
Pradip Kumar Roy - Opposite Party
C.R.P. No. 22 of 2015
Decided On : 28-03-2016
Constitution of India,1950 - Article 227 - Specific Relief Act, 1963 - Sections 28, 30 - Specific Relief Act, 1877 - Section 38 - Entitled to compensation - Sale opposite party - Agreement - Case cannot be any dispute that PW2 i.e. sister, would have been entitled to compensation and as she also is a beneficiary under impugned judgment, a liberal view has to be taken on issue of non-joinder because of she being not a party to proceeding as well as on issue of she being not the claimant - Brothers and sister were living together and two brothers were mutually dependent on each other in supporting family which also comprised their unmarried sister, PW2, and when eldest brother, who admittedly had much more income than claimant, had died in a vehicular accident due to rash and negligent driving of vehicle, there cannot be any justification to deny surviving brother and sister compensation - Application under Article 227 of Constitution of India petitioner has challenged correctness of order passed by learned Civil Judge No.1, in Title Suit No. - Agreement for sale opposite party herein agreed to sell a plot of land measuring 1 Katha 10 Chatack standing with houses standing thereon at a consideration - On of agreement opposite party accepted a sum of from plaintiff as earnest money and it was agreed between parties that within a period of one year from date of execution of agreement defendant would execute sale deed on receipt of agreement it was also agreed that in case plaintiff failed to make payment of balance sum, in that event, defendant would be entitled to retain 15% of earnest money and to refund balance sum of earnest money to plaintiff - Notice was served defendant side admitted claim of plaintiff and accordingly a judgment was passed on admission and a decree was ordered to be prepared -– Held, Court are referred to Section 38 of same Specific Relief Act it is provided that on adjudging rescission of a contract court may require party to whom such relief is granted to make any compensation to other if justice so requires - We have heard on this aspect of matter, but, he could not assign any reason why this money should be withheld or should not be refunded to appellant - Specific performance of contract is essentially a matter of equitable relief and either in granting or refusing any relief or rescinding either contract or decree for specific performance, it is open to court to grant such relief to either party as justice may require - In our view, in facts and circumstances of present case, for ends of justice, it would be only fair and proper to direct the respondent to refund entire amount of Rs.1,000/- to plaintiff appellant within six months from today - It appears that a part of Section 38 of the Specific Relief Act, 1877 has found place as Section 30 of present Act - Exercise made under Section 28, therefore, includes exercise made under Section 30 of present Act and so it is incumbent upon Court while passing an order under Section 28 to consider provision of Section 29 and 30 of same Act as well - Here, in present case, while passing order learned Court did not consider provision of Sections 29 and 30 of Specific Relief Act, 1963 - Plaintiff wrongly mentioned Section 28 in his application - But it is established law quoting wrong section would not disentitle a party from getting relief since it was duty of the court to see as to whether decree holder was entitled to an order under Section 30 while passing order under Section 28 of Specific Relief Act, 1963 - Apparent error of jurisdiction and so interference by Court under Article 227 of Constitution of India has become necessary - Petition stands allowed
N. Chaudhury, J.
Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. B. Sarma, learned counsel appearing for the petitioner and Mr. P.K. Deka, learned counsel for the opposite party.
2. In this application under Article 227 of the Constitution of India the petitioner has challenged the correctness of the order dated 28.08.2014 passed by learned Civil Judge No.1, Cachar at Silchar, in Title Suit No.51/2011. The aforesaid order was passed under an unusual circumstance. The present petitioner as plaintiff instituted Title Suit No.51/2011 in the Court of learned Civil Judge No.1 at Silchar praying for a decree for specific performance of contract. It was stated that by executing a written agreement for sale on 31.08.2010 the opposite party herein agreed to sell a plot of land measuring 1 Katha 10 Chatack 4 Gonda and 2 Koras standing on 2nd R.S. Patta No.933 Dags No.8083, 8081 and 8080 along with houses standing thereon at a consideration of Rs.39,50,000/-. On the date of agreement the opposite party accepted a sum of Rs.5,00,000/- from the plaintiff as earnest money and it was agreed between the parties that within a period of one year from the date of execution of the agreement the defendant would execute the sale deed on receipt of Rs.34,50,000/-. However, in paragraph 4 of the agreement it was also agreed that in case the plaintiff failed to make payment of the balance sum, in that event, the defendant would be entitled to retain 15% of the earnest money and to refund the balance sum of the earnest money to the plaintiff.
3. After the notice was served the defendant side admitted the claim of the plaintiff and accordingly a judgment was passed on admission on 23.02.2012 and a decree was ordered to be prepared. The plaintiff in the meantime came to know that a suit had already been instituted by a third party against the defendant and the plaintiff of the erstwhile suit challenging the very title of the defendant over the decretal land and right of the defendant to purchase the same. Situated under such circumstances the decree holder filed an application before the learned trial Court praying for keeping the decree in abeyance in view of the fact that the title of the judgment debtor of the erstwhile decree came under cloud. The learned trial Court by an order passed on 05.04.2012 rejected the prayer of the decree holder. By the same order the learned trial Court also passed an order under Section 28 of the Specific Relief Act inasmuch as the judgment debtor had filed an application for rescission of contract under Section 28 of the Specific Relief Act as the decree holder did not deposit the money within the stipulated period. By a one line order the learned trial Court allowed the application under Section 28 of the Specific Relief Act and thereby cancelled the decree. Since the application under Section 28 is stated to have been allowed it amounts to rescission of the contract thereby. The learned Court, however, did not pass any order under Section 30 of the Specific Relief Act. Since it is an admitted fact that the judgment debtor had accepted a sum of Rs.5 Lacs from the decree holder as on the date of execution of the rescinded contract agreeing to sell the decretal land, the decree holder, therefore, subsequently filed an application praying for necessary orders to recover the proportionate part of the earnest money in terms of the agreement. This application has also been rejected by the learned trial Court by impugned order passed on 28.08.2014. This order is under challenge in the present proceedings.
4. Having heard the learned counsel for the parties it appears that there is no dispute in regard to execution of the contract between the parties on 31.08.2010. There is also no dispute between the parties regarding payment of Rs.5 Lacs by the present petitioner to the opposite party herein as earnest money. Mr. P.K. Deka, learned counsel for the opposite party, in his usual fairness, submit
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