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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. GOVINDARAJAN
Raju Naidu
Versus
M. Kolandaisamy and another
C.R.P.No. 1501 of 1994
Decided On : 28-10-1998
SPECIFIC RELIEF ACT - SECTION 28 - RESCISSION OF CONTRACT - REASONABLE TIME - INTERPRETATION - APPLICATION TO DECREE WITHOUT TIME LIMIT - COURT'S DISCRETION - EQUITY - PROMPTNESS AND DILIGENCE - DELAY IN DEPOSIT OF BALANCE SALE CONSIDERATION - APPLICABILITY OF SECTION 46 OF THE CONTRACT ACT - MAINTAINABILITY OF APPLICATION UNDER SECTION 28 - WAIVER OF RIGHT - ESTOPPEL - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
The petitioner and respondents entered into an agreement for the sale of property, with a balance of Rs. 50,000 to be paid on or before a specific date. The respondents filed a suit for specific performance, resulting in a decree directing the petitioner to execute the sale deed. The petitioner's wife and sons filed a partition suit, which was dismissed. The respondents deposited the balance amount in 1982 but withdrew it due to a stay order obtained by the petitioner's family. The petitioner challenged the decree in appeals, which were dismissed in 1989. In 1992, the respondents again deposited the balance amount and filed an execution petition. The petitioner filed an application under Section 28 of the Specific Relief Act to rescind the contract due to the respondents' default in depositing the amount within a reasonable time.
Finding of the Court:
The court held that Section 28 of the Specific Relief Act applies even to decrees that do not specify a time limit for payment, as the principles of the section extend to cases where the decree lacks a time limit. The court found that the respondents failed to deposit the balance sale consideration within a reasonable time, as they did not act promptly after the proceedings between the parties concluded in 1990. The court also held that the petitioner's failure to object to the deposit of the amount and the filing of the draft sale deed did not constitute a waiver of his right under Section 28, as he had not positively accepted the amount.
Issues: 1. Whether Section 28 of the Specific Relief Act applies to decrees without a time limit for payment. 2. Whether the respondents deposited the balance sale consideration within a reasonable time. 3. Whether the petitioner's failure to object to the deposit of the amount and the filing of the draft sale deed constituted a waiver of his right under Section 28.
Ratio Decidendi: 1. Section 28 of the Specific Relief Act applies to decrees without a time limit for payment, as the principles of the section extend to cases where the decree lacks a time limit. 2. The respondents failed to deposit the balance sale consideration within a reasonable time, as they did not act promptly after the proceedings between the parties concluded in 1990. 3. The petitioner's failure to object to the deposit of the amount and the filing of the draft sale deed did not constitute a waiver of his right under Section 28, as he had not positively accepted the amount.
Final Decision: The court allowed the revision petition, set aside the lower court's order, and allowed the petitioner's application under Section 28 of the Specific Relief Act, rescinding the contract for sale.
1. The above revision is filed against the order passed by the Sub-Court, Karur in E.A.No. 161 of 1993, in E.P.No. 48 1992 in O.S.No. 483 of 1980, dated 20.4.1994.
2. Thepetitioner/defendantentered into an agreement with the respondents/plaintiff BE sell the suit property for a sum of Rs.74,000 and he paid a sum of Rs. 24,000 as advance. The balance was agreed to paid on or before 110. 1980. The said agreement was executed on 7. 1979. Since the sale deed was not executed as agreed, the respondents filed the suit in O.S.No. 483 of 1980, on the file of the Sub-Court, Karur and the same was decreed on 20.3.1982 directingthe petitioner to execute the sale deed on or before 20.5.1982 failing which the plaintiffs were at liberty to have the sale deed executed through court. It is relevant to mention here that no time limit was fixed for depositing the amount. Meanwhile the wife and sons of the petitioner have filed the suit in O.S.No. 531 of 1980 on the samecourt for partition which was dismissed on 20.3.1982 itself. Against that judgment and decree they filed appeal in A.S.NO. 249 of 1982and the petitioner filed appeal in A.S.No. 495 of 1985 before this Court. On 16. 1982 the respondents filed Execution Petition in E.P.No.38 of 1982 in O.S.No. 483 of 1980 on 16. 1982 and they had deposited the balance of consideration of Rs. 50,000 only on 16. 1982. The said E.P. was dismissed on 9. 1982, in view of the stay granted by this Court in A.S.No. 249 of 1982 filed by the wife and sons of the petitioner. After dismissal of the said Execution Petition, the petitioner withdraw the amount deposited by filing an application. This Court dismissed both the abovesaid appeals on 211. 1989. The Review Applicationsfiled also were dismissed on 112. 1990. Thereafter on 23. 1992 the respondents filed E.P. 48 of 1992 and deposited the said sum of Rs. 50,000 on 24. 1992.
3. Now the petitioner has filed the above Application in E.A.No. 161 of 1993 in E.P.No. 48 of 1992 under Section 28 of the Specific Relief Act, to have the contract rescinded on account of the default on the part of the respondents herein in not depositing the balance sale consideration within the reasonable period. The same was resisted by the respondents. The court below by the order dated 20.4.1994 rejected the same. Aggrieved against the same, the petitioner has filed the above revision.
.4. The learned Senior Counsel appearing for the petitioner has submitted that the court below is not correct in holding that no objection was taken before filing the draft sale deed and so it has to be taken that the respondents/plaintiff had waived their right of defence regarding the deposit of the balance sale consideration. According to him, the court below is not correct in taking into consideration of the earlier proceedings to come to the conclusion that the said deposit of the amount is within the reasonable time. per contra, the learned Senior Counsel appearing for the respondents/plaintiffs has submitted that the application under Section 28 of the said Act cannot be maintained as the said section will apply only if the decree has prescribed any time limit to deposit the said amount. She has further submitted that even Section 46 of the Contract Act cannot be made applicable to the present case, as it will apply only before passing the decree, to see that the purchaser has complied with his part of the contract. While explaining the delay in payment of the amount, the learned Senior Counsel has relied on the proceedings taken by the petitioner and his wife and sons. She has also relied on the fact that the said amount was deposited on 16. 1982, and only because of the stay order obtained by the wife and the sons of the petitioner, the said Execution Petition was dismissed, and so the respondents withdrew the said amount. With respect to the maintainability of the application, the learned Senior Counsel has submitted that such an application has to be filed in the suit. Sh
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