Raveendran v. Gopi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 25TH DAY OF AUGUST 2014/3RD BHADRA, 1936** ## **RSA.No. 1276 of 2008 ( )** **------------------------AGAINST THE ORDER/JUDGMENT IN AS 205/2004 of ADL.D.C. THODUPUZHA DATED 28-02-2007** **AGAINST THE ORDER/JUDGMENT IN OS 5/2002 of SUB COURT,THODUPUZHA DATED 25-05-2004** ## **APPELLANT(S)/APPELLANT/DEFENDANT:** **----------------------------------------------------------** **RAVEENDRAN,S/O.PADMANABHAN, THALAPPOLIMATTATHIL HOUSE, PURAPUZHA KARA PURAPUZHA VILLAGE, THODUPUZHA TALUK.** **BY ADVS.SRI.C.K.VIDYASAGAR SRI.T.I.ABDUL SALAM** **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **--------------------------------------------------------------** **GOPI, S/O.KUTTAPPAN, PUTHENPURACKAL HOUSE, MELPURAPUZHA KARA PURAPUZHA VILLAGE, THODUPUZHA TALUK.** **R1 BY ADV. SRI.T.J.MICHAEL R1 BY ADV. SRI.JOSE MATHEW (KAVALAKALAM)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2014, ALONG WITH OPC. 4457/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[CR]** ## **B.KEMAL PASHA, J.** ................................................................ R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 ............................................................... Dated this the 25[th] day of August, 2014 ## **J U D G M E N T** Can a decree for specific performance of a contract for sale of an immovable property be rescinded under Section 28 of the Specific Relief Act? 2. The defendant in O.S.No.5 of 2002 on the file of the Subordinate Judge's Court, Thodupuzha against whom a decree for specific performance of a contract for sale of the scheduled immovable property was passed, unsuccessfully challenged the said judgment and decree in appeal as A.S.No.205/04 before the District Court, Thodupuzha. The Additional District Judge dismissed the appeal through the impugned judgment and decree dated 28.02.2007. The respondent/defendant has come up in second appeal. R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 2 :- 3. During the pendency of this RSA, the appellant had approached the trial court with I.A.No.975/12 in O.S.No.5/02, purportedly one under Section 28 of the Specific Relief Act, seeking rescission of the decree dated 25.05.2004 in O.S.No.5/02 on the ground that the plaintiff had failed to pay or deposit the balance sale consideration within time. The trial court dismissed the said IA, on which the present O.P.(C) No.4457/12 has been filed. 4. The factual matrix reveals the following: The plaintiff has alleged that on 19.10.2001 the defendant had entered into Ext.A1 agreement for sale with him thereby agreeing to sell 43 cents of property for a total consideration of ₹1,50,000/-. At the time of execution of Ext.A1, an amount of ₹10,000/- was obtained by the defendant from the plaintiff as part of consideration. The date of execution of the sale deed was fixed to be on or before 19.01.2002. As the plaintiff felt that the defendant was avoiding the execution of the sale deed, he caused to issue a lawyer's notice dated R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 3 :- 03.01.2002 to the defendant thereby calling upon him to be present at the Sub-registrar's office on 13.01.2002 for the execution of the sale deed. The defendant has not turned up, and hence the suit. 5. The defendant contended that Ext.A1 was not executed as an agreement for sale, whereas, it was executed by way of a loan agreement as the defendant was in dire necessity to borrow an amount of ₹10,000/- from the plaintiff for meeting the expenses for the marriage of his daughter. As Ext.A1 was not executed for the sale of the only immovable property belonging to the defendant, the plaintiff is not entitled to get a decree for specific performance of the contract. It was also contended that the defendant is ready and willing to return the amount borrowed with interest at the rate of 18% per annum. 6. The trial court decreed the suit on 25.05.2004 against which A.S.No.205/04 was filed. The appeal was also dismissed on 28.02.2007. Therefore, the plaintiff filed an R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 4 :- application on 12.09.2007 for permitting him to deposit the sale consideration and to get the sale deed executed through court. The said application was allowed on 28.05.2008. Another application was filed by the plaintiff on 17.07.2008 for the approval of the draft sale deed. The said application was dismissed for default on 20.12.2010. An application for restoration was filed; the same was allowed and consequently the earlier application was restored. On 12.12.2011 the plaintiff filed an application seeking leave to deposit the balance consideration before the trial court. Thereafter, the said application was not pressed through memo dated 03.10.2012. After that, the defendant filed I.A.No.975/12 purportedly one under Section 28 of the Specific Relief Act before the trial court to get the decree rescinded. The same was dismissed. Ultimately, the plaintiff deposited the balance sale consideration before the trial court on 06.10.2012. 7. Heard the learned counsel Sri.Philip T. Varghese R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 5 :- for the appellant in R.S.A.1276/08 who is the petitioner in OP(C)4457/12 and Sri.T.J. Michael for the respondent in RSA 1276/08 and the respondent in OP(C) 4457/12. The learned counsel for the appellant has argued that the plaintiff ought to have deposited the balance sale consideration within one month from the date of decree, as per the decree of the trial court. It is also argued that even after the dismissal of the appeal, the plaintiff has not cared to deposit the balance sale consideration within a reasonable time to get the sale deed executed. In such a case, according to the learned counsel for the appellant, the appellant is entitled to get the decree passed by the trial court which was upheld by the lower appellate court, rescinded under Section 28 of the Specific Relief Act. It is also argued that there is huge escalation of market value of the property in question and therefore, the trial court and the lower appellate court ought not to have granted the discretionary relief of specific performance of the contract, in R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 6 :- favour of the plaintiff. The argument in short, is that it is highly inequitable to grant such a discretionary relief in favour of the plaintiff. 8. _Per contra_ , the learned counsel for the respondent has argued that the delay in the payment of balance consideration in order to get the sale deed executed was deliberately caused by the defendant himself and there was no latches at all on the part of the plaintiff in making the payment. It was argued that all along, the plaintiff was ready and willing to part with the balance consideration to get the sale deed executed in his favour. 9. Regarding I.A.No.975/12 in O.S.No.5/02 of the Subordinate Judge's Court, Thodupuzha and the order passed by the said court on it on which OP(C)4457/12 has been filed, much discussion is not required to conclude that the claim forwarded by the defendant through the said IA is not legally sustainable. In this particular case, after denying the execution of the contract of sale, the defendant cannot R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 7 :- be heard to say that he is entitled to get the contract for sale rescinded within the meaning of Section 28 of the Specific Relief Act. Apart from that, it seems that the relief sought for by the defendant through the said IA is not one for the rescission the contract; whereas, it was one for the rescission of the decree passed by the trial court. What is contemplated under Section 28 of the Specific Relief Act is the rescission of a contract for sale of immovable property and not for the rescission of a decree. When a decree was passed against the defendant, it is for the defendant to challenge the judgment and decree in appeal or further proceedings as the case may be, in case he is aggrieved. When the judgment and decree are not challenged or the challenge fails, Section 28 of the Specific Relief Act never comes to the rescue of the defendant to have recourse to Section 28 for getting the decree rescinded. Matters being so, IA 975/12 and the consequent OP(C)4457/12 preferred on this order, are not maintainable, and OP(C)4457/12 is R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 8 :- only to be dismissed. 10. The learned counsel for the appellant has invited the attention of this Court to the decisions in _**Bhupinder Kumar v. Angresj Singh** [(2009) 8 SCC 766]_ and _**V.S. Palanichamy Chettiar Firm v. C. Alagappan** [AIR 1999 SC 918]_ regarding Section 28 of the Specific Relief Act. Those decisions are not applicable to the facts relating to I.A.No.975/12 filed by the defendant before the trial court. 11. Regarding the discretionary relief of specific performance, it seems that there is no specific plea from the part of the defendant that it is inequitable to grant the relief of specific performance in respect of Ext.A1 contract. It has not been contended that there is huge escalation in the market value of the property and therefore, it will be inequitable to grant such a relief to the plaintiff. In the absence of such a specific plea and any data regarding the escalation of the market value, this Court in the second appellate stage cannot interfere with the concurrent findings R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 9 :- entered by the trial court as well as the lower appellate court by which specific performance has been granted to the plaintiff. Unless and until such a plea has been taken, this Court, at this stage, cannot order payment of any higher amount as consideration than what was agreed to between the parties in Ext.A1. In a way, the execution of Ext.A1 is admitted. At the same time, the plea that was taken up was that it was executed just as an agreement for sale. In view of the concurrent findings entered by both the courts below, the said findings on facts are not liable to be interfered with. In fact, there is no question of law involved in this second appeal and therefore, the impugned judgment and decree cannot be interfered with. 12. On hearing either side and on a perusal of the judgments and other records, this Court is satisfied that there is absolutely nothing to interfere with the impugned judgment and decree. This second appeal and OP(C) 4457/12 are devoid of merits, and are only to be dismissed, R.S.A. No. 1276 of 2008 & O.P.(C) No. 4457 of 2012 -: 10 :- and I do so. 13. In the result, R.S.A.1276/2008 as well as OP(C) 4457/12 are dismissed. In the nature of these proceedings, there is no order as to costs. All the interlocutory applications in the appeal as well as the O.P. are closed. Sd/- B. KEMAL PASHA, JUDGE ul/- [True copy] P.S. to Judge