The court affirmed that failure to deposit the balance sale consideration does not automatically rescind a decree for specific performance, especially when the amount was withdrawn prior to judgment.

ORDER:

This Civil Revision Petition is filed aggrieved by the order dated 14.06.2023 passed in E.A.No.4 of 2022 in E.P.No.1403 of 2022 (Old E.P.No.65 of 2006) by the learned X Additional District Judge, R.R. District at L.B.Nagar.

2. The suit vide O.S.No.13 of 2003 was filed by respondent/plaintiff/decree holder against petitioners herein for specific performance of contract. The trial Court decreed the suit on 02.09.2006. Petitioners herein filed A.S.No.657 of 2006 against the judgment and decree dated 02.09.2006 and the first appellate Court dismissed the appeal on 26.06.2009 by confirming the judgment and decree of the trial Court. Respondent herein filed E.P.No.1403 of 2022 (Old E.P.No.65 of 2006).

E.A.No.4 of 2022 was filed by petitioners/defendants/judgment debtors to reject E.P.No.1403 of 2022 by rescinding the agreement of sale dated 27.05.2003. The trial Court dismissed the application on 14.06.2023. Aggrieved by the order dated 14.06.2023, the petitioners herein filed the present civil revision petition.

3. Heard both sides. Perused the record

4. Learned counsel for petitioners contended that respondent/DHr failed to deposit the balance sale consideration of Rs.1 lakh and it was originally deposited by him in the year 2006 and subsequently withdrawn under a full satisfaction memo in the year 2016 vide Cheque Petition No.17/2016. The trial Court erroneously adopted the order passed in CRP No.2051 of 2021 which was preferred against petition filed under Section 47 of CPC by not considering the nature of the said provisions of law and the course to be adopted by the Court while dealing with the petition under Section 28 of the Specific Relief Act. Respondent herein has withdrawn the amount of Rs.1 lakh along with interest by filing E.A.No.17 of 2016 and it was ordered on 14.06.2016.

5. Learned counsel for petitioners further contended that respondent filed a Full Satisfaction Memo on 19.08.2016 stating that he received a sum of Rs.1,38,467/- in E.P.No.65 of 2006 has full satisfaction and the conduct of DHr in not depositing the balance sale consideration for a long period of more than five years which entitles to have EP executed.

Section 28 of the Specific Relief Act is to safeguard the interest of JDr where DHr does not come forward for deposit of the balance sale consideration within a reasonable time and it is not open to DHr to deposit the balance sale consideration. The trial Court did not note the relevant date i.e., 19.08.2016 and his failure to re-deposit the same until E.A.No.4 of 2022 is filed by JDrs seeking rescinding the agreement of sale. There was no direction by the trial Court to deposit the balance sale consideration within a specific period. The order in CRP No.2051 of 2021 will have no bearing on the EA and the scope of CRP is different from the present application. The trial Court failed to refer the documents filed along with the EA and did not mark the documents as exhibits. Therefore, requested the Court to set aside the order of the trial Court.

6. In E.A.No.4 of 2021 in E.P.No.1403 of 2022 (Old E.P.No.65 of 2006) filed by the DHr, he contended that the stamp duty fee is Rs.1,99,500/-, transfer duty is Rs.74,813/-, registration fee is Rs.24,938/- and the total amount is Rs.2,99,251/-. DHr mentioned Rs.1,00,000/- in the draft sale deed at the time of filing the E.P. He filed a memo stating that he has to pay stamp duty, transfer duty and registration fee and he is ready to deposit Rs.2,99,251/-. He filed another E.A. to cancel the F.D.No.365200 dated 23.11.2012 with Andhra bank and to permit him to withdraw Rs.1,00,000/- with interest. On 14.06.2016, the trial Court ordered E.A.No.17 of 2016 filed for refund of Rs.1,00,000/- along with interest. He deposited Rs.2,99,251/- for the same purpose on 04.02.2016, as both the amounts were deposited for the same purpose, in view of deposit of higher amount, earlier deposit amount can be returned to him. Petitioners/JDrs have no objection for the refund sought