G. Soman; Gopalakrishnan Pillai; Ambujakshi Amma v. Gopalakrishnan Pillai and Ambujakshi Amma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944** **RFA NO. 412 OF 2016** **AGAINST THE JUDGMENT IN OS 542/2012 OF PRINCIPAL SUB COURT,** ## **KOLLAM** ## **APPELLANT/S:** G.SOMAN AGED 64 YEARS S/O. GOPAN, ROHINI HOUSE, NO. 06/415, PALLICKAL CHERRY, MYLOM VILLAGE, KOTTARAKKARA TALUK. BY ADVS. DR.K.P.SATHEESAN (SR.) SRI. ADHITHYAN S.K SRI.P.MOHANDAS ERNAKULAM SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN 1 GOPALAKRISHNA PILLAI AGED 77 YEARS S/O. JANARDHANA PILLAI, KRISHNA NIKETH (SREE KRISHNA BHAVAN), ASRAMAM CHERRY, KOLLAM EAST VILLAGE, KOLLAM TALUK, PIN-691002. 2 AMBUJAKSHI AMMA AGED 68 YEARS W/O. GOPALAKRISHNA PILLAI, KRISHNA NIKETH (SREE KRISHNA BHAVAN),ASRAMAM CHERRY, KOLLAM EAST VILLAGE,KOLLAM TALUK, PIN-691002. BY ADVS. SMT.K.G.BINDU SMT.T.S.MAYA THIYADIL ## **RESPONDENT/S:** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON** **21.11.2022, ALONG WITH CRP.238/2022, THE COURT ON 25/11/2022 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 25[TH] DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944** **CRP NO. 238 OF 2022** **AGAINST THE ORDER IN IA 978/2017 IN OS 542/2012 OF** **PRINCIPAL SUB COURT KOLLAM** ## **REVISION PETITIONER/S:** G. SOMAN AGED 64 YEARS, S/O.GOPALAN ROHINI HOUSE, PALLICKAL CHERRY, MYLAM VILLAGE, KOTTARAKARA TALUK, KOLLAM, PIN – 691 506 BY ADVS. P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN ## **RESPONDENT/S:** 1 GOPALAKRISHNA PILLAI, S/O.JANARDHANAN PILLAI, KRISHNANIKETHAN (SREE KRISHNA BHAVAN), ASHRAMAM CHERRY, KOLLAM VILLAGE, KOLLAM TALUK, KOLLAM, PIN - 691002 2 AMBUJAKSHY AMMA W/O. GOPALAKRISHNA PILLAI, KRISHNA NIKETHAN (SREE KRISHNA BHAVAN), ASHRAMAM CHERRY, KOLLAM VILLAGE, KOLLAM TALUK, KOLLAM, PIN - 691002 BY ADV K.G.BINDU THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/11/2022, ALONG WITH RFA.412/2016, THIS COURT ON 25/11/2022 DELIVERED THE FOLLOWING: **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ----------------------------------------R.F.A.No.412/2016** **& C.R.P. No.238 of 2022** **-----------------------------------------** **Dated this the 25[th] day of November, 2022** ## **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 **& C.R.P. No.238 of 2022** ## **R.F.A.No.412/2016** -:2:- 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 **R.F.A.No.412/2016 & C.R.P. No.238 of 2022** -:3:- 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 **R.F.A.No.412/2016 & C.R.P. No.238 of 2022** -:4:- 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 Section 28(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 Section 28(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 **R.F.A.No.412/2016 & C.R.P. No.238 of 2022** ## -:5:- 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 in **Bhupinder 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 below. It is thereafter, this revision was filed. It is true that a review petition was filed, **R.F.A.No.412/2016 & C.R.P. No.238 of 2022** ## -:6:- however, that too was dismissed two years ago. If this court cannot now enlarge the time to deposit the balance sale consideration, the inevitable consequence is, rescission of the contract. It is not a case where the court had not granted time after the passing of the decree, to deposit the balance sale consideration. The decree was passed as early as on 22/9/2015. This Court directed the plaintiff to pay the balance sale consideration within one month on 10/10/2017. That means, even after the lapse of two years of the decree, the plaintiff could not comply with the direction. The plaintiff, in fact, chosen to file revision after the lapse of many years challenging the order passed under Section 28(1). No amount of equity or discretion can come to his aid. As a result, we have no option but to dismiss the appeal and to affirm the order passed under **R.F.A.No.412/2016** ## **& C.R.P. No.238 of 2022** -:7:- Section 28(1). However, we note that the court below while ordering rescission of the contract, did not order refund of the advance amount paid. It is a requirement under Section 30 of the Specific Relief Act to order refund of any advance amount. We are of the view that the plaintiff is entitled for return of the advance amount of Rs.10 lakhs together with 6% interest from the date of agreement of sale. The court below has also to be ordered to refund the Rs.25 lakhs deposited by the plaintiff. In conclusion, the following orders are passed: ## I. **R.F.A.No.412/2016:** R.F.A.No.412/2016 is dismissed. The parties are directed to suffer their respective costs. ## II. **C.R.P.No.238/2022:** i. C.R.P.No.238/2022 is partly allowed. ## **R.F.A.No.412/2016** ## **& C.R.P. No.238 of 2022** ## -:8:- ii. The plaintiff is allowed to realise Rs.10 lakhs together with 6% interest from the date of agreement till realisation. iii. The plaintiff is also permitted to withdraw Rs.25 lakhs deposited before the court below with accrued interest if any. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** Sd/- ## **SHOBA ANNAMMA EAPEN, JUDGE** ## **ms** **==> picture [428 x 35] intentionally omitted <==** By the order of this Court in RFA No.412/2016 and CRP No.238/2022, dated 23/12/2022, the following clarifications have been made: i. That “ **6% interest”** appearing in the above judgment has to be read as **“6% interest per** **R.F.A.No.412/2016 & C.R.P. No.238 of 2022** -:9:- ## **annum”;** ii. That the 50% of the court fee ordered to be refunded by the court below has not been interfered by this Court. Sd/- Joint Registrar 23/12/2022