Habeeb Rahiman and others v. Prakasan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH DAY OF JUNE 2012/24TH JYAISHTA 1934 CRP.No. 233 of 2012 () ---------------------I.A.NO.669/2009 IN OS.617/1996 of PRINCIPAL SUB COURT, PALAKKAD REVISION PETITIONER(S)/PETITIONERS/PETITIONERS: ---------------------------------------------- 1. HABEEB RAHIMAN - S/O. LATE ABDUL KAREEM ROWTHER, ENNAKOTTIL THERUVU KOPPAM AMSOM, PALAKKAD TALUK. 2. MUHAMMED ISMAIL - S/O. LATE ABDUL KAREEM ROWTHER, ENNAKOTTIL THERUVU KOPPAM AMSOM, PALAKKAD TALUK. 3. MUMTHAS BEEGUM - W/O. SHAHUL HAMEED, ENNAKOTTIL THERUVU, KOPPAM AMSOM PALAKKAD TALUK. 4. FIROZ @ KAJA HUSSAIN S/O. SHAHUL HAMEED, ENNAKOTTIL THERUVU, KOPPAM AMSOM PALAKKAD TALUK. 5. THASNI - D/O. SHAHUL HAMEED, ENNAKOTTIL THERUVU, KOPPAM AMSOM PALAKKAD TALUK. 6. RAHANA - D/O. SHAHUL HAMEED, ENNAKOTTIL THERUVU, KOPPAM AMSOM PALAKKAD TALUK. 7. DILSHAD - ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK. 8. NAFAR @ NERFAN ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK. 9. NISHA - ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK. 10. RAZIANA BEEGUM ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK. BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SMT.P.A.SHEEJA SMT.MEENA.A. SRI.K.C.KIRAN CRP NO.233/2012 2 RESPONDENT(S)/RESPONDENTS: -------------------------------------- ## 1. PRAKASAN S/O. SANKUNNY MANNADIAR, MOOTHANTHARA, KOPPAM AMSOM PALAKKAD TALUK, PALAKKAD, PIN-678001. ## 2. JAFFER SADIK ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK PALAKKAD, PIN-678001. 3. AKBAR PASHA ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK PALAKKAD, PIN-678001. 4. ABDUL NAZAR ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK PALAKKAD, PIN-678001. 5. SULTHAN SEYD IBRAHIM ENNAKOTTIL THERUVU, KOPPAM AMSOM, PALAKKAD TALUK PALAKKAD, PIN-678001. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------C.R.P. No.233 of 2012 -------------------------------------Dated this the 14[th] day of June, 2012.** ## **ORDER** This civil revision arises from the order dated 11.04.2012 on I.A.No.669 of 2009 in O.S.No.617 of 1996 of the Sub Court, Palakkad. Petitioners/defendants requested to rescind the contract for sale of the suit property under Sec.28 of the Specific Relief Act, 1963 (for short, “the Act”) for alleged failure of the 1[st] respondent/plaintiff to deposit the balance sale consideration within the time specified in the judgment and decree. Learned Sub Judge rejected that request by the impugned order. 2. It is contended by the learned Senior Advocate for petitioners that the order is bad in law for the following reasons - (i). that, there was no deposit of the balance sale consideration within the time specified by the judgment and decree dated 17.03.2003, (ii). that, without an order of the court 1[st] respondent was not entitled to adjust the cost in the balance sale consideration, and; (iii). that, 1[st] respondent is not entitled to get possession of the property as the prayer for possession was not allowed by the trial court while passing the decree for specific performance. 2 CRP No.233/2012 3. To answer the above contentions, it is necessary to refer to the facts. As per the contract, the sale consideration payable was `6,00,000/-. `4,50,000/- was paid by way of advance. The balance sale consideration payable was `1,50,000/-. An exparte decree was passed against petitioners and others on 24.06.1998 directing the 1[st] respondent to deposit balance sale consideration ( `1,50,000/-) after adjusting the cost payable to him (`53,814/-). The exparte decree was later set aside. Court below, after a contest of the suit again granted a decree for specific performance on 17.03.2003. 1[st] respondent was directed to deposit the balance sale consideration within three months. He was also allowed to realise the costs from the petitioners. Petitioners challenged that judgment and decree in this Court in R.F.A.No.281 of 2003. On 30.07.2003 1[st] respondent deposited `97,116/- in the court below after adjusting the sum of `53,814/- which the 1[st] respondent entitled to get by way of cost. R.F.A. No.281 of 2003 was dismissed on 02.04.2008. Petitioners preferred a Special Leave Petition which the Supreme Court dismissed. 4. On 30.07.2003, 1[st] respondent filed I.A.No.2548 of 2003 in the trial court stating that the amount is deposited (as aforesaid) and claiming that under law he is entitled to adjust the cost which was awarded to him. It is pointed out that I.A.No.2548 of 2003 was filed 43 days after the time prescribed by the decree dated 17.03.2003 to deposit the balance sale consideration. Petitioners filed I.A.No.669 of 2009 under Sec.28 of the Act to rescind the contract on grounds which I have first stated. 3 CRP No.233/2012 5. The court below on a consideration of the facts and circumstances held that the prayer for rescinding the contract vide I.A.No.669 of 2009 cannot be allowed and consequently dismissed that application. That order is under challenge in this Civil Revision. 6. Learned Senior Advocate has contended that deposit of the balance sale consideration (on 30.07.2003) was not within three months from the decree dated 17.03.2003 and at any rate, was not of the entire balance sale consideration since no adjustment of cost was allowed as per decree dated 17.03.2003. It is argued that Rule 18 of Order XXI of the Code of Civil Procedure (for short, “the Code”) has no application since the said provision relates to cross decrees for payment of money, while the decree on hand is not one for payment of money but for specific performance of the contract for sale where, cost was allowed in favour of the 1[st] respondent. It is further contended that in the absence of any authorisation to that effect in the decree dated 17.03.2003, 1[st] respondent could not have unilaterally adjusted the cost in the balance sale consideration and deposited only `97,116/-. The third argument of the learned Senior Advocate is that at any rate, since there was a prayer in the plaint for delivery of possession of the property and that relief was not granted as per the decree dated 17.03.2003, question of 1[st] respondent being put in possession of the property through court pursuant to the execution of the sale deed does not arise. Learned Senior Advocate has brought to my notice the decision in **Shankar Popat Gaidhani v. Hiraman Umaji More (dead) by Lrs. and others (AIR 2003 SC 1682)** . 4 CRP No.233/2012 7. As I understand from the submission of learned Senior Advocate, I.A.No.2548 of 2003 filed by the 1[st] respondent intimating the court about the deposit of the amount already made and his right to adjust the cost in the balance sale consideration is pending consideration of the court below. The question for consideration in this Civil Revision is whether the court below was right in dismissing I.A.No.669 of 2009 where the prayer was to rescind the contract under Sec.28 of the Act. 8. The position is by now settled that a mere failure to deposit the sale consideration within the time specified by itself, is no ground to rescind the contract under Sec.28 of the Act. This Court in **Joseph George v. Chacko Thomas (1992 (1) KLT 6), Anandavally v. Natesan (1992 (2) KLT 833), Jayaprakash v. John & Others (1999 (2) KLJ 533)** and **Chithambaran v. Viswambaran & another (2000 (1) KLJ 591)** has taken the consistent view that to rescind a contract under Sec.28 of the Act after passing the decree for specific performance, there must be evidence of positive default or wilful failure to deposit the sale consideration. In this case, apart from the fact that according to the petitioners, the balance sale consideration was not deposited on time, nothing is brought out to show that there was a positive refusal or wilful failure to deposit the balance sale consideration so that petitioners could request for rescission of the contract under Sec.28 of the Act. 5 CRP No.233/2012 9. The exparte decree having been set aside, the court below after a contest of the suit again granted a decree in favour of the 1[st] respondent on 17.03.2003. It is admitted by the petitioners that the exparte decree was passed on 24.06.1998 allowing the 1[st] respondent to adjust the cost of `53,814/- and deposit the balance sale consideration (which came to `97,116/-). It is also not disputed that when the appeal from the judgment and decree dated 17.03.2003 was pending in this Court, with the permission of and as directed by this Court (as per order on I.A.No.931 of 2004), 1[st] respondent deposited the sum of `97,116/- in the trial court on 30.07.2003. The same day, 1[st] respondent filed I.A.No.2548 of 2003 in the court below intimating that court of the deposit and claiming that he is entitled to adjust the cost in the balance sale consideration payable. 10. Of course, the question will arise whether 1[st] respondent was entitled to adjust the cost awarded to him in the balance sale consideration he was made liable to deposit. True that Rule 18 of Order XXI of the Code speaks of execution of cross decrees for money while the decree on hand is one for specific performance of the contract. Assuming that Rule 18 of Order XXI of the Code did not apply, Rule 19(b) of that Order could come to the rescue of the 1[st] respondent. Rule 19 provides for set-off in the case of cross-claims contained in the same decree. In **Subramanian Chettiar v. Krishnaveni Ammal (1964 KLT 622)** it is held that where a decree directed the plaintiff to deposit certain amount in court and allows him to realise the cost from the defendant, plaintiff is entitled to set off the cost and deposit the balance amount. That was a case of 6 CRP No.233/2012 decree for specific performance. The court could even allow equitable set-off provided that the cross demands have arisen out of the same transaction. The Supreme Court in **Balchand v. State of A.P. (1987 (1) KLT SN.No.18)** has held that the court has the power to allow a set-off even if it does not fall under Rule 18 of Order XXI of the Code. In **Vasudevan Namboothiri v. Karappan and others (ILR 1955 Travancore-Cochin Series 1259)** it is held that even apart from Rules 18 and 19 of Order XXI of the Code, it is open to the court in the exercise of its inherent jurisdiction to allow set-off. 11. It is true that it is without getting permission of the court pursuant to the decree dated 17.03.2003 that the 1[st] respondent has deposited the amount on 30.07.2003, after 45 days of the prescribed time. I.A.No.2548 of 2003 filed by the 1[st] respondent is pending decision (I am told) of the court below. That court has to take appropriate decision in the matter having regard to the fact situation and the position of law (if that application is not already disposed of). 12. I must also notice that neither Sec.28 of the Act nor, Sec.148 of the Code specifically requires a written application for enlargment of time. This Court in **Chithambaran v. Viswambaran & another (2000 (1) KLJ 591)** expressed the view that a written application is not required. Profitable reference can be made to the decision of the Supreme Court in **K.Kalpana Saraswathi v. P.S.S.Somasundaram Chettiar (AIR 1980 SC 512)** where an oral request made before the Supreme Court for permission to deposit the amount was allowed. That decision has been referred to with approval in **Ramankutty** 7 CRP No.233/2012 **Guptan v. Avara ((1994) 2 SCC 642)** also. I must also notice that an application under Sec.28 of the Act and/or read with Sec.148 of the Code for enlargement of time to deposit the amount is not amenable to the period of limitation prescribed under the Limitation Act so that one should say that a written application is a must. Let the court below take appropriate decision on I.A.No.2548 of 2003 (if it is not already taken). 13. A further fact I must notice from **Ramankutty Guptan v. Avara** (supra) is that in that case the suit for specific performance was dismissed and the appeal against that was allowed granting specific performance. The decree holder deposited the sale consideration when the Second Appeal was pending. It was held that that was a valid deposit of the amount. Here also, the deposit was made when the appeal preferred by petitioners was pending. 14. The last argument is as to the power of the court to deliver the property to the 1[st] respondent, decree dated 17.03.2003 not specifically providing so notwithstanding that in the plaint there was a prayer for delivery of possession of the property. It is pointed out by the learned Senior Advocate that when a relief which was specifically prayed is not mentioned in the decree, it must be taken that the relief was refused. 15. In fairness it is submitted by the learned Senior Advocate that in the judgment dated 17.03.2003, nothing is mentioned about the prayer for delivery of possession made in the plaint. This Court, in **Narayana Pillai v. Ponnuswami (1978 KLT 512)** adverted to the nature of a decree for specific 8 CRP No.233/2012 performance and observed that it is almost in the nature of a preliminary decree . It is also held that a plaintiff may claim a decree for possession in the suit for specific performance even though, strictly speaking the right to possession arises only when specific performance is decreed. In otherwords, strictly speaking right of the 1[st] respondent to claim possession of the property arose only after the decree dated 17.03.2003. I must also notice that it is not a case of the court below for whatever reason it be refusing to grant possession of the property to the 1[st] respondent while disposing of the suit. May be, by inadvertence there was an omission on the part of the trial court in granting relief of possession claimed by the 1[st] respondent. 16. I must also notice the decision in **Gopalakrishnan v. Sarojini (1985 KLT 1167)** . There, it is held that the preponderance of judicial opinion is that even the executing court is competent to grant delivery of property, in a case where no such relief was granted by a decree for specific performance of the contract of sale. That was because even though possession was not claimed in the plaint, it could be asked for in execution of the decree for specific performance as relief of possession is merely incidental to the execution of a deed of conveyance or is implicit in it. Reference was made to the decision in **Narayana Pillai v. Ponnuswami** (supra) It was also held that the relief of specific performance of the contract for sale takes within its ambit the power to put the plaintiff in possession of the property conveyed under the sale deed. The relief of possession is inherent in the relief of specific performance of the contract for sale. 9 CRP No.233/2012 17. I stated that it is not as if the trial court had for any reason whatsoever negatived the claim of 1[st] respondent for possession of the property while granting the decree for specific performance. It is within the power of the court to grant possession of the property to the 1[st] respondent pursuant to the execution of the sale deed in his favour. That right of the 1[st] respondent, strictly speaking arose only after the decree for specific performance was passed. To say that because there was a prayer for possession in the plaint but it is not (by omission) provided in the decree and hence the court should not grant possession of the property even after execution of the sale deed will only create awkward situation as the 1[st] respondent will get a deed of conveyance but not possession of the property. I am inclined to think that the attempt of the court should be to avoid such awkward situation. 1[st] respondent has obtained a decree for specific performance. On execution of the deed of conveyance he should get possession of the property. So far as that is not specifically refused, the court has and should have the power to grant possession of the property as well. 10 CRP No.233/2012 18. In **Shankar Popat Gaidhani v. Hiraman Umaji More (Dead) by Lrs. and others (AIR 2003 SC 1682),** as the facts of the case revealed, it involved possession of a third party to the contract for sale of property. In that situation the Supreme Court held that the High Court was not correct in ordering delivery of possession without there being a decree to that effect. That is because the decree for specific performance need not bind the third party who was in possession. That decision has no application to the facts of this case. 19. In the light of what I have stated above, I do not find merit in the contentions raised by the petitioners. It follows that the Civil Revision has to fail. Civil Revision is dismissed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**