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PUNJAB & HARYANA HIGH COURT
Rajesh Bindal, J.
Sucha Singh - Appellant
Versus
Nand Lal - Respondent
Civil Revision No. 2920 of 2015 (O&M)
Decided On : 30-04-2015
Specific Relief Act - Agreement to Sell - Section 28 - Summary of Acts and Sections: Specific Relief Act, 1963 - Section 28 - Court discussed the provisions of Section 28 of the Act, which provides for rescinding of the contract in case of failure to comply with the time granted for payment of balance sale consideration in a decree for specific performance. The court also referred to Section 148 of the CPC, which allows the court to enlarge the time required for doing an act prescribed or allowed by the Code of Civil Procedure. The court highlighted the discretionary power of the court to extend the time originally fixed or granted, even beyond 30 days, to meet the ends of justice. The court emphasized that the power to fix time for doing an act carries with it the power to extend such period, depending upon whether the party in default makes out a case to the satisfaction of the court. The court also noted that the power of the court to extend the time fixed for doing any act is not regulated by any statutory limits, such as the Limitation Act.
Fact of the Case:
The petitioner entered into an agreement to sell land with the respondent. After receiving part payments, the petitioner failed to get the sale deed registered, leading to a suit for possession by way of specific performance of the agreement. The trial court decreed the suit, directing the petitioner to execute the sale deed and deliver possession to the respondent within a specified time period.
Finding of the Court:
The court found that the petitioner's application under Section 28 of the Specific Relief Act for rescinding the contract was not meritorious. The court observed that the petitioner's conduct, including attempts to stall execution of the decree, did not support the plea for rescission of the contract.
Issues: The issues involved the petitioner's plea for rescinding the contract under Section 28 of the Specific Relief Act due to the respondent's delay in depositing the balance sale consideration, and the discretionary power of the court to extend the time for doing an act prescribed or allowed by the Code of Civil Procedure.
Ratio Decidendi: The court's decision was based on the interpretation of Section 28 of the Specific Relief Act and Section 148 of the CPC, emphasizing the discretionary power of the court to enlarge the time required for doing an act and the absence of statutory limits on the court's power to extend the time originally fixed or granted.
Final Decision: The court dismissed the petitioner's application, upholding the order passed by the court below.
1. The petitioner-judgment debtor has filed the present petition impugning the order dated 27.3.2015, passed by the learned executing court, dismissing the application filed by the petitioner under Section 28of the Specific Relief Act, 1963 (for short, 'the Act').
2. Briefly, the facts are that the petitioner entered into an agreement to sell with the respondent on 28.12.2006 for sale of the land, measuring 14 kanals 4 marlas, @ ` 8,00,000/- per killa. The last date for execution of the sale deed was fixed as 8.5.2007. After execution of the agreement to sell, on different occasions, the petitioner received part payments from the respondent and total amount received before the registration of the sale deed was ` 4,20,000/-. The petitioner having failed to get the sale deed registered, the respondent filed a suit for possession by way of specific performance of agreement to sell on 15.6.2007. The same was decreed by the trial court vide judgment dated 22.7.2011. It was directed that the petitioner will execute the sale deed and deliver possession to him within a period of 2 months after receiving the balance sale consideration, failing which the respondent-plaintiff could get the sale deed executed and take possession of the suit land by filing execution. The petitioner, being aggrieved against the judgment and decree of the trial court, filed appeal, which was dismissed by the learned lower appellate court vide judgment and decree dated 14.1.2012. The judgment and decree of the learned lower appellate court was challenged by the petitioner by filing RSA No. 2364 of 2012, which was dismissed by this court vide order dated 27.10.2014. On 16.4.2012, the respondent filed application seeking permission to deposit the balance sale consideration, which was permitted and the amount was deposited on the same date. Thereafter, he filed application under Order 21 Rule 32 CPC for implementing the judgment and decree. In the aforesaid application, the petitioner filed application under Section 28(1) of the Act for rescinding the contract because the decree-holder failed to deposit the balance sale consideration within the period granted and further failed to seek extension thereof. The same was dismissed by the court below vide impugned order.
3. Learned counsel for the petitioner submitted that in the judgment and decree passed by the trial court on 22.7.2011, two months' time was granted for deposit of the balance sale consideration, however, the same was deposited by the respondent-decree holder on 16.4.2012 without there being any application seeking extension of time. In the absence thereof, in terms of the provisions of Section 28(1) of the Act, the contract was liable to be rescinded and the decree had become unexecutable. The court below was wrong in observing that there was no time fixed by the court for deposit of the amount. However, he did not dispute the fact that during the pendency of appeal before the first appellate court, there was interim stay.
4. After hearing learned counsel for the petitioner, I do not find any merit in the submissions made. The basic fact, namely, that the petitioner entered into an agreement to sell for sale of the property on 28.12.2006 is not in dispute. The last date for registration of the sale deed was 8.5.2007. The petitioner having failed to get the sale deed registered, suit for possession by way of specific performance of agreement to sell was filed by the respondent-decree holder on 15.6.2007. The same was decreed by the trial court. The operative part of the judgment is extracted below:
"Keeping in view of my findings on the above issues, the suit of the plaintiff is decreed with costs for possession by way of specific performance of the agreement dated 28.12.2006 with a direction to the defendant to execute a sale deed in favour of the plaintiff of suit land and further to deliver its possession to him, within a period of two months after receiving the balance sale conside
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