Jacob v. Shuhara and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 AGAINST THE ORDER DATED 28/11/2006 ON IA.NO.1561/05 IN OS.423/1997 of MUNSIFF COURT,ALUVA ## REVN. PETITIONER/1ST RESPONDENT/PLAINTIFF: JACOB, AGED 41 YEARS, S/O. JOSEPH THETTALIKKAL VEETTIL, MARADU VILLAGE, KANAYANNOOR TALUK, BY ADV. SRI.SHIJU VARGHEESE SRI.DILEEP VARGHESE SRI.P.F.THOMAS (SR.) ## RESPONDENTS/PETITIONERS/DEFENDANTS: 1. SHUHARA, AGED 60 YEARS, - W/O.LATE KHALID, PALLIPATTU PUTHENPURA HOUSE, EDATHALA KARA, ALUVA EAST VILALGE,ALUVA TALUK. 2. RASIYA, AGED 38 YEARS,D/O.LATE KHALID, DO. DO. 3. NADEERA, AGED 36 YEARS,D/O.LATE KHALID, DO. DO. 4. SAJILA, AGED 34 YEARS,D/O.LATE KHALID, DO. DO. 5. IQBAL, AGED 32 YEARS, D/O.LATE KHALID, DO. DO. 6. MAJITHA, AGED 30 YEARS, D/O.LATE KHALID, DO. DO. 7. JAMIYA, AGED 27 YEARS,D/O.LATE KHALID, DO. DO. 8. ISAHAK, AGED 29 YEARS,S/O.LATE KHALID, DO. DO. - BY ADV. SRI.SIRAJ KAROLY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON THE SAME DAY PASSED THE ORDER ON I.A.No.3635/06 IN C.R.P.1030/06 //DISMISSED// 04.01.2008 SD/=(M.N.KRISHNAN, JUDGE) ## M.N.KRISHNAN,J. -------------------------------------------------------C.R.P.No.1030 OF 2006-B -------------------------------------DATED THIS THE 4TH DAY OF JANUARY, 2008 ## **O R D E R** This revision is preferred against the order of the Munsiff, Aluva in I.A.No.1561/05 in O.S.No.423/97. It is an application filed by the legal representatives of the second defendant for rescission of the contract under section 28(1) of the Specific Relief Act. The decree for specific performance was passed on 26[th] July, 1997 whereby the court directed the defendants to measure the plaint schedule property and demarcate the boundaries and to execute the sale deed in favour of the plaintiffs after receipt of the balance sale consideration and to put the plaintiff in possession of the plaint schedule property within a period of two months from the date of the decree, failing which the plaintiff is entitled to deposit balance sale consideration of Rs.20,000/= before the court and get the plaint schedule property measured and boundaries fixed and the sale deed executed by court and to obtain possession of the plaint schedule property or in other words the decree directs the defendants to execute the document on receipt of the balance sale 2 C.R.P.No.1030/06-B consideration of Rs.20,000/= and on failure of the defendants to do the same , the plaintiff can deposit the balance sale consideration and request the court to execute the document. This decree is passed as early as on 26.7.1997. There is no dispute to the fact that the amount was deposited before the treasury by the plaintiff only on 21.12.2004. Though he moved an application for condoning the delay in making the deposit, for reasons best known to him, the petition was not-pressed. As per section 28(1) of the Specific Relief Act, when the person bound to deposit the amount is not depositing it within the time fixed or the extended time as the court may grant, then the defendant in the suit is entitled to apply for rescission of contract. Now the question is whether the defendants are entitled to have a rescission of the contract on non-deposit of the amount by the plaintiff of the balance consideration and the case laws are sufficient to hold that the ingredients to be proved are: (1) default and (2) it must be wilful. If these ingredients are proved and there is no explanation forthcoming, then certainly the defendants in the suit are entitled to have a rescission of the contract. As stated by me earlier, on the factual matrix, the amount has been deposited before the court almost after 7 years and 5 3 C.R.P.No.1030/06-B months from the date of decree. It is true that the decree does not provide a fixed time to the plaintiff to deposit the amount. But it has to be borne in mind that the court has worded the decree in such a way that the time given for the defendants to perform the contract is two months and on failure to do so, the plaintiff can deposit the consideration and apply to the court for execution of the document. So, one cannot hold or one cannot interpret that there is no time limit at all for making the deposit. 2. The learned counsel for the revision petitioner argues before me that mere non-deposit is not a ground to rescind the contract unless it is proved to be wilful and as there is no express time prescribed in the decree for deposit of the amount, it has to be held that there is no wilful default in depositing the amount as ordered by the court. The learned counsel has also cited before me various decisions of the Apex Court and of this court for consideration. The learned counsel referred to the decision of the Apex Court reported in **Kumar Dhirendra Mullick and others v. Tivoli Park Apartments (P) Ltd. 2005 (9) SCC 262** . A reference to para.24 of the said decision would reveal that the trial court decreed the suit whereby 90 days' time was granted to the C.R.P.No.1030/06-B 4 defendants to execute, register and deliver the lease. In para.25 the facts referred to would reveal that it was only a time fixed for non-approaching the court for execution before the period of 90 days. So far as the present case is concerned, here two months' time is granted and there is a further specific recital in the decree itself that on failure to pay the amount, the plaintiff can approach the court for executing the decree by depositing the balance sale consideration. Then the learned counsel also referred to para.32 of the said judgment of the Apex Court wherein a decision of this court rendered in **Ouseph v.Devassy (2001(1) KLJ 59)** has been referred to. It was a case where the plaintiff, namely, the purchaser was put in possession of the property and he continued to be in possession for 18 years and a decree for specific performance was passed and a petition to rescind the contract was filed after 15 years of the passing of the decree. In such a situation, this court held that wilful default or positive refusal to complete the contract is not proved. 3. The other decision cited is reported in **Anandavally v. Natesan (1992 (2) KLT 833).** It was held in that decision that the court has the power to rescind the contract and it can be done 5 C.R.P.No.1030/06-B when there is wilful default on the part of the decree holder. The learned counsel also referred to a decision of the Division Bench of this court reported in **Joseph George v. Chacko Thomas (1992 (1) KLT 6)** . In that case the court held that failure to deposit the amount need not result in rescission of the contract. So, an analysis of the decision rendered by the courts would reveal that what is to be considered while passing an order under section 28(1) is whether there has been wilful default on the part of the decree holder. A wilful default is not a thing which can be directly perceived or proved. It depends upon bundle of facts and circumstances. So, it is the analysis of those bundle of facts and circumstances that will have the baring in arriving at a decision. Before entering into a finding on that, it is only profitable to refer to a decision of the Apex Court reported in **V.S.Palanichamy Chettiar Firm v. C.Alagappan and another (AIR 1999 SC 918)** . It was a case where a prayer was made to extend the time for deposit after five years after the decree. But the Apex Court held: “ Held under Art.54 of the Limitation Act, 3 years period is prescribed for filing the suit for specific performance of contract of sale from the date of the agreement or when the cause of action arises. Merely because a suit is filed within the prescribed period of C.R.P.No.1030/06-B 6 limitation does not absolve the vendeeplaintiff from showing as to whether he was ready and willing to perform his part of agreement and if the non-performance was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific performance of an agreement are quite stringent. Equitable consideration come into play. Court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. It is not the case of the respondentdecree holder that on account of any fault on the part of the vendor -judgment-debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is nevertheless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the decreeholder-respondents as to why they did not pay the balance amount of consideration as per the decree. Equity demands that discretion be not exercised in favour of the decree holder-respondents and no extension of time be granted to them to comply with the decree.” 4. On an earlier occasion the decree holder in the revision petition came up before this court and this court while disposing of W.P.(C)No.7892/06 held that there must be an adjudication on the matter after giving opportunity to both sides to adduce evidence, if 7 C.R.P.No.1030/06-B any. The court also directed that the rescission petition will be decided first, before passing orders on the execution of the decree. A perusal of the order passed by the learned Munsiff would reveal that the decree holder did not mount box at all to give any explanation. There is no valid grounds in the pleading, even for explaining the delay caused. The stand taken is that there is no time limit fixed for making the payment and therefore the decree holder can do it at any time. I feel such an explanation cannot be accepted and the decree is to be read as a whole and not in isolation and there is indication in the decree itself how it could be done. Therefore the said explanation is totally unsatisfactory. Even if it is taken for granted that there is no time limit fixed in the decree in a specific performance suit, the plaintiff who always must be ready and willing to perform his part of the contract should not delay making the payment which is due to the other side and as stated in the 1999 Apex Court decision it has to be interpreted in a stringent manner. The learned counsel for the revision petitioner submits before me that the stand taken by the judgment debtors in the execution petition is regarding the non-executability of the decree and so one has to hold that the present petition filed by them is 8 C.R.P.No.1030/06-B without any bona fides. When admitted facts reveal that for a period of seven years and five months the decree holder has kept mum and he has not tendered any reasonable explanation to show that he was prevented from depositing the amount, then certainly the sum total of the same would certainly amount to wilful default which is a sine qua non for granting rescission under section 28(1) of the Specific Relief Act. Therefore, from the foregoing discussions and the materials available, I concur with the findings of the court below and I also hold that there are materials available to hold that there has been non-payment of the amount on account of the wilful default which permits rescission of the contract under section 28(1) of the Specific Relief Act. Therefore the C.R.P. lacks merits and it is dismissed without costs. The Munsiff is directed to pass orders as stipulated in section 28(2) of the Specific Relief Act with respect to the money paid by the decree holder as advance. M.N.KRISHNAN, JUDGE. dsn