Back
2020 Supreme(P&H) 659
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Rekha Mittal, J.
Salim Khan - Petitioner
Versus
Kulbhushan Kumar and another - Respondents
CR No.169, 204 of 2020(O&M)
Decided On : 06-02-2020
For the Petitioner:Mr. Santosh Sharma and Mr. Sham Lal Bhalla, Advocates
A purchaser pendente lite does not have the right to seek rescission of the agreement to sell under Section 28 of the Specific Relief Act.
Headnote:
Specific Relief Act - Rescission of Contract - The court dismissed the application to rescind the agreement to sell, as the petitioner, a purchaser pendente lite, was not the vendor and therefore did not have the right to seek rescission under Section 28 of the Specific Relief Act.
Fact of the Case:
The petitioner filed an application to rescind the agreement to sell, which was dismissed by the trial court. The petitioner argued that the respondent did not deposit the balance sale consideration within the stipulated period and therefore the application should not have been dismissed.
Finding of the Court:
The court found that the petitioner, as a purchaser pendente lite, did not have the right to seek rescission under Section 28 of the Specific Relief Act, as he was not the vendor. The court also noted that the vendor did not file an application for rescinding the agreement.
Issues: The main issue was whether the petitioner, as a purchaser pendente lite, had the right to seek rescission of the agreement to sell under Section 28 of the Specific Relief Act.
Ratio Decidendi: The court held that the petitioner, not being the vendor, did not have the right to seek rescission under Section 28 of the Specific Relief Act.
Final Decision: The court dismissed the petitioner's application to rescind the agreement to sell.
JUDGMENT :
Rekha Mittal, J.
CM No.2705-CII of 2020
In CR No.169 of 2020
1. Heard.
2. Allowed as prayed for.
3. Documents Annexure P-6 to P-8 are taken on record subject to just exceptions.
4. Disposed of accordingly.
CR Nos.169 and 204 of 2020
5. This order will dispose of CR Nos.169 and 204 of 2020 as identical questions of law and fact are involved for adjudication. For facility of reference, facts are taken from CR No.169 of 2020.
6. Challenge in the present petition has been directed against order dated 12.12.2019 passed by the Additional Civil Judge (Senior Division), Ludhiana whereby application filed by the petitioner/defendant No.2 under Section 28 of the Specific Relief Act, 1963 to rescind the agreement to sell dated 23.02.2004 has been dismissed.
7. A brief backdrop of the case is that respondent No.1/plaintiff filed suit for possession by way of specific performance of agreement to sell dated 23.02.2004 executed by Sakhir Chand (since deceased) – respondent No.2 with further prayer for grant of permanent injunction restraining defendants from alienating the suit property except to the plaintiff. In the said suit, the plaintiff also sought declaration that sale deed bearing vasika No.7007 dated 21.07.2004 executed by defendant No.1 in favour of the petitioner is illegal, null and void and has no value in the eye of law. The suit was decreed by the trial Court vide judgment and decree dated 15.03.2014 and copy of the decree sheet is Annexure P-1. The petitioner filed appeal against the decree passed by the trial Court but the same was dismissed on 26.09.2015. The petitioner has filed Regular Second Appeal before this Court and the same is pending decision. After dismissal of first appeal on 26.09.2015, respondent No.1/decree holder filed application for execution of the decree on 03.10.2015 wherein it was averred that decree holder is ready to deposit the sale consideration, earlier it was not deposited as the appeals were pending.
8. The petitioner filed application to rescind the agreement to sell dated 23.02.2004 by invoking Section 28 of the Act and the same was dismissed by the trial Court vide order impugned.
9. Counsel for the petitioner would argue that the decree holder did not deposit balance sale consideration within the period stipulated in the decree dated 15.03.2014. In appeal filed by the petitioner, there was no stay against execution of the decree passed by the trial Court. He would inform that in the regular second appeal pending before the High Court, notice of motion has been issued but again there is no stay granted by the Court. It is argued with vehemence that as the respondent/decree holder neither deposited the balance sale consideration within the period stipulated in the decree nor at the time of filing application for execution in October 2015 and he filed application seeking permission to deposit the balance sale consideration and extension of time in 2018, the Court has committed a gross error and infirmity by dismissing application of the petitioner and allowing prayer of the respondent/decree holder regarding deposit of balance sale consideration by relying upon judgments of this Court Asha Rani Vs. Jasbir Singh, 2002(2) RCR (Civil) 530 and Gurdit Vs. Jagjit Singh, 1988(1) RRR 519, decided in view of peculiar facts and circumstances of the given cases. It is further argued that though the petitioner is a purchaser pendente lite but balance sale consideration is directed to be paid to the petitioner who was defendant No.2 in the suit.
10. Before adverting to the submissions made by counsel for the petitioner, it is appropriate to note relevant extract from Section 28 of the Act that deals with rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed, reads thus:-
“(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or less
