The court reiterated that non-compliance with specific performance decrees justifies rescission of the contract, but also mandates refund of advance payments, reflecting equitable principles.

J U D G M E N T

A.Muhamed Mustaque, J.

These appeal and revision are between the same parties. The dispute relating to these matters arise out of the sale agreement entered into between them. The appellant succeeded in the suit for specific performance before the Principal Sub Judge, Kollam. He obtained a relief of performance of agreement of sale. The decretal portion however was onerous and looked as inequitable for the plaintiff, as he was burdened with payment of 9% quarterly compound interest from the date fixed for performance of the agreement till he makes deposit of the balance consideration before the court. Accordingly, the plaintiff filed R.F.A.No.412/2016.

2. This Court, while admitting the appeal on

10/10/2017 directed the appellant-plaintiff to deposit the balance sale consideration in terms of the agreement of sale within one month. On 13/11/2017, the appellant-plaintiff deposited Rs.25 lakhs out of Rs.70 lakhs payable towards balance sale consideration. It is to be noted that while decreeing the suit, the Principal Sub Judge had not fixed time to deposit the balance sale consideration. Thereafter, the defendant filed an application as I.A.No.1279/2016 in O.S.No.542/2012 to fix the time. That application was allowed on 6/4/2017 with a direction to deposit the balance sale consideration within three months from the date of the order. That ran out on 6/7/2017. This forced the defendant to file another application as I.A.No.978/2017 under Section 28 (1) of the Specific Relief Act, 1963 to rescind the contract. That was allowed on 19/12/2017 noting that the plaintiff had not complied with the direction in the judgment of the Principal Sub Judge as well as the order of this Court in R.F.A.No.412/2016 dated 10/10/2017. In R.F.A.No.412/2016, the plaintiff filed an application for enlargement of the time to deposit the balance sale consideration. This Court on 21/12/2017, noting that the Sub Court by order dated 19/12/2017 had already rescinded the contract, dismissed the application for enlargement with liberty to challenge the order of the Sub Court in other appropriate proceedings. The appellant, instead of challenging the order before this Court, filed an application as I.A.No.81/2018 in I.A.No.978/2017 in O.S.No.542/2012 to review the order dated 19/12/2017 before the Sub Court. I.A.No.81/2018 was dismissed on 17/3/2020. As of now, contract stands rescinded. The appellant, thereafter, filed C.R.P.No.238/2022 before this Court on 3/8/2022 challenging the order under (1) of the Specific Relief Act, passed as early as on 19/12/2017. The fate of the appeal would depend upon the outcome of the revision filed challenging the order under (1).

3. Section 28 (1) of the Specific Releif Act reads thus:

28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. -- (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 lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

The above provision clearly shows that the nature of the decree passed for specific performance is in the nature of a preliminary decree as the Court passed the decree retains the power to change the very substratum of the preliminary decree by ordering rescission of the contract. The Apex Court inBhupinder Kumar v. Angrej Singh [(2009)8 SCC 766] holds this view. It is to be noted that more than five years lapsed after the order of rescinding the contract was passed by the court