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2008(3) JLJ 433
S.K. Seth, J.
Mohanlal Garg and others v. M/s. Chaudhary Builders Pvt. Ltd. and others
Civil Revision No.49 of 2008 (Indore);
Decided on 12.8.2008.
It was also contended by Shri Chaphekar that the agreement of sale of immovable property was executed on 15.7.1992 which the non-applicant No.1 is trying to enforce in the year 2007, therefore, it could not be said that steps were taken by the non-applicant No.1 within reasonable time. Even otherwise, the Court had accepted the award in 2004 and the non-applicant No.1 came forward for execution of the award only after fifteen months and this delay is also fatal to the non-applicants. [Para 14
Held: Right from the beginning applicants did not accept the nomination of sole arbitrator which compelled the non-applicant No.1 to file an application in the trial Court. When the said application was allowed, the applicants challenged the order of the trial Court in this Court in MA No.173/1999. The said miscellaneous appeal was unilaterally withdrawn by the applicants in the year 2004 without obtaining any decision on merit. Thus, according to Shri Garg, the applicants cannot make capital on account of their own conduct so as to deprive the non-applicant No.1 of the fruits of the agreement relating to immovable property. [Para 15
It is clear that at this stage, the rise in prices, if any, relating to the immovable property agreed to be conveyed to the non-applicant No. 1, would not be a relevant or telling factor to deny the relief of specific performance in terms of the arbitration award. We have already pointed hereinabove that the delay is on the part of the applicants and, therefore, no premium can be put on the said delay so as to relieve the applicants from their contractual obligations under the agreement of sale. (1997)3 SCC 1 distinguished. (2002) 1 SCC 134, (2001)7 SCC 617 and (2004)8 SCC 689 followed.[Para 17
(2) Civil P.C., 1908 -- S.115 -- revisional powers -- are limited -- to keep subordinate Courts within their jurisdiction. [Para 11
¼1½ laifÙk varj.k vf/kfu;e] 1882 && /kkjk 53d && LFkkoj laifÙk ds foØ; dk djkj && fofufnZ"V ikyu ls dherksa esa o`f) ds vk/kkj ij bUdkj ugha fd;k tk ldrk tc foyac Lo;a foØsrk }kjk fd;k x;k gSA Jh pkQsdj }kjk ;g ladFku Hkh fd;k x;k fd LFkkoj laifÙk ds foØ; dk djkj 15-7-1992 dks fu"ikfnr fd;k x;k Fkk ftls vukosnd Ø-1 lu~ 2007 esa izofrZr djkus dk iz;Ru dj jgk gS] vr% ;g ugha dgk tk ldrk fd vukosnd Ø-1 }kjk ;qfDr;qDr le; ds Hkhrj dne mBk, x,A vU;Fkk Hkh] U;k;ky; }kjk vf/kfu.kZ; 2004 esa Lohdkj dj fy;k x;k Fkk vkSj vukosnd Ø-1 vf/kfu.kZ; ds fu"iknu ds fy, ianzg ekl i‘pkr~ vkxs vk;k rFkk ;g foyac Hkh vkosndx.k ds fy, ?kkrd gSA ¿ iSjk 14 vfHkfu/kkZfjr % vkjaHk ls gh vkosndx.k us ,dek= e/;LFk dk ukefunsZ‘ku Lohdkj ugha fd;k Fkk ftlds dkj.k vukosnd Ø-1 dks foo‘k gksdj fopkj.k U;k;ky; esa vkosnu Qkby djuk iM+kA tc mDr vkosnu eatwj dj fy;k x;k] rc vkosndx.k us bl U;k;ky; esa izdh.kZ vihy Ø-173@1999 esa fopkj.k U;k;ky; ds vkns‘k ij vk{ksi fd;kA mDr izdh.kZ vihy lu~ 2004 esa xq.kkxq.k ij dksbZ fofuf‘p; vfHkizkIr fd, fcuk vkosndx.k }kjk ,di{kh; :i ls okil ys yh xbZA vr% Jh xxZ ds vuqlkj] vkosndx.k vukosnd Ø-1 dks LFkkoj laifÙk ls lacaf/kr djkj ds Qy ls oafpr djus ds fy, vius gh vkpj.k ds dkj.k ykHk ugha mBk ldrsA ¿ iSjk 15 Li"V gS fd bl izØe ij] vukosnd Ø-1 dks gLrkarfjr fd,tkus ds fy, djkj dh xbZ LFkkoj laifÙk ds laca/k esa dherksa esa o`f)] ;fn gqbZ gks rks] ek/;LFke~ vf/kfu.kZ; ds vuqlkj fofufnZ"V ikyu ds vuqrks"k ls bUdkj djus ds fy, lqlaxr vFkok izHkkoh dkjd ugha gksxkA geus igys gh ,rfLeu~iwoZ crk;k gS fd foyac vkosndx.k dh vksj ls fd;k x;k gS] blfy, mDr foyac ds fy, c<+ksrjh ugha dh tk ldrh ftlls fd vkosndx.k foØ; ds djkj ds v/khu viuh lafonkRed ck/;rkvksa ls HkkjeqDr gks tk,A ¼1997½3 ,l lh lh 1 izHksfnrA ¼2002½1 ,l lh lh 134] ¼2001½7 ,l lh lh 617 rFkk ¼2004½8 ,l lh lh 689 vuqlfjrA ¿ iSjk 17 ¼2½ flfoy izfØ;k lafgrk] 1908 && /kkjk 115 && iqujh{k.k dh ‘kfDr lhfer gS && v/khuLFk U;k;ky;ksa dks mudh vf/kdkfjrk esa j[kus ds fy, gSA ¿ iSjk 11
Seth, J. --1. This order shall also govern the disposal of Civil Revision No.50/2008 (Mohanlal Garg s/o Prahaladdasji Garg v. M/s. Chaudhary Builders Pvt. Ltd. and two others) as learned counsel appearing for the parties agreed that common facts and law are involved in both the civil revisions and both civil revisions arise out of the common impugned order dated 14.12.2007 passed by Additional District Judge, Indore in Civil Suit No.52-A/2007.
2. By the impugned order, learned Court below has rejected applicants' application u/s 28 of the Specific Relief Act (hereinafter referred to as "the Act" for short), while it allowed the application for extension of time filed by non-applicant No. 1. Hence, these two revisions are against the common impugned order. The facts relating to these two revisions are common and the relevant facts for the disposal of these revisions are as under.
3. It is undisputed that on 15.7.1992, an agreement of sale was executed jointly by late Rajendra Kumar Garg and the above applicants in favour of non-applicant No.1 in respect of the suit property situated in the heart of the city of Indore. As per agreement, they had agreed to sell suit property @ Rs.130/- per sq.ft. to the non-applicant No. 1. Thus, the total sale consideration comes to Rs.40.95 lacs and as against the same, applicants ,had received Rs.22,44,500/- as an advance. Said agreement of sale contained an arbitration clause to resolve mutual disputes by the sole arbitrator Shri Gulabchandji.
4. Dispute arose between the parties and applicants refused to submit to the arbitration; therefore, the non-applicant No.1 filed an application u/s 20 of the Arbitration Act, 1940 in the year 1994 which was subsequently registered as Civil Suit No.12-NI996 in the Court of XVIth Additional District Judge, Indore. The application was allowed and by order dated 27.11.1998 the dispute was referred to sole arbitrator Shri Gulabchandji for arbitration. This order of the Civil Court was challenged in this Court in MA No.173/ 1999 by applicants and without inviting any final decision on merit; the said appeal was withdrawn on 15.1.2004. As a result, the order dated 27.11.1998 passed by XVI Additional District Judge, Indore became final.
5. It seems that after withdrawal of the said appeal, the sole arbitrator issued notices to the parties and invited their respective claims. The applicants in their claim admitted the execution of agreement of sale, but contended that the non-applicant No.1 had failed to pay the balance amount of consideration within the stipulated time, therefore, the agreement of sale had come to an end. In the alternative, the applicants also submitted that apart from the sale consideration, if they were paid damages for the last twelve years, then they were ready and willing to perform their part of the contract.
6. The parties before the sole arbitrator agreed not to adduce any evidence, therefore, the sole arbitrator after discussing the matter with the parties, passed the award dated 24.9.2004, wherein the non-applicant No.1 was directed to pay the balance amount of sale consideration amounting to Rs.18,50,500/- together with damages as mentioned in the award itself. The award was filed in the Court in the presence of the parties by the sole arbitrator. No objections were raised by either of the parties, therefore, on 19.10.2004, the Court below passed order relevant portion whereof is extracted below:
^^mHk; i{k us vokMZ ij dksbZ vkifÙk Hkh izLrqr ugha dh gS vkfcZVªs"ku ,aM dalhys"ku ,DV ds izko/kkuksa ds vuqlkj vc vokMZ dks :y vkWQ dksVZ cukus dh dksbZ vko";drk ugha gS vokMZ dk fu'iknu lh/ks Hkh fd;k tk ldrk gSA**
This order went unchallenged and the award passed by the sole arbitrator attained finality.
7. On 16.12.2005, the non-applicant No.1 filed execution case in the lower Court for the execution of sale-deed in its favour pursuant to the award, alleging that despite order passed by the Court on 19.10.2004, the applicants were
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