Vinni Jacob Nediyathuthara v. Saju John Kunnathu House

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY ,THE 30TH DAY OF AUGUST 2018 / 8TH BHADRA, 1940** ## **OP(C).No. 3184 of 2016** **AGAINST THE ORDERS DATED 6/10/2010, 1/3/2013 AND 18/10/2016 IN IA NO.2931/2008 AND ORDER DATED 24/1/2014 IN IA NO.978/2013 AND ORDER DATED 18/10/2016 IN OS 797/2002 of PRL.MUNSIFF COURT, CHERTHALA** ## **PETITIONER/DEFENDANT:** **VINNI JACOB NEDIYATHUTHARA, ERAMALLOOR MURI, EZHUPUNNA, CHERTHALA.** **BY ADV. SRI. T.R. RAJAN** ## **RESPONDENT/PLAINTIFF:** **SAJU JOHN KUNNATHU HOUSE, THURAVOOR,CHERTHALA-688524.** **BY ADV. SRI. JOHN JOSEPH VETTIKAD** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.08.2018, THE COURT ON 30.08.2018 DELIVERED THE FOLLOWING:** ## **JUDGEMENT** This OP is filed challenging Exts.P4, P5, P8, P10 and P11 orders of Munsiff Court, Cherthala. Petitioner was the defendant in OS No.797/2002 of the Munsiff's Court, Cherthala. The respondent herein was the plaintiff. The suit was decreed on 19/2/2004 directing the defendant/petitioner to execute a sale deed in respect of the plaint schedule property after receipt of the balance sale consideration of OP(C) No.3184/2016 2 `15,000/- within two months from the date of decree and on failure to do so, the plaintiff was allowed to get the sale deed executed through Court by depositing the balance sale consideration before Court within three months from the date of decree. Plaintiff was also allowed to get cost of the proceedings. The decree became final. In the meantime, respondent filed IA No.2931/2008 (Ext.P2) u/s 28 of the Specific Relief Act for a direction to the Court to execute the sale deed. In the affidavit filed in support of Ext.P2, it was stated that the plaintiff had filed an application to correct the decree appended to the schedule of property and it was allowed as per order dated 27/3/2008 in IA 904/2008. It is further stated that the balance sale consideration could be deposited only on 28/5/2008 and the same is allowed. Since the defendant had not cared to execute the sale deed after receiving balance sale consideration and to deliver the property, the application is filed. By order dated 6/10/2010, the Munsiff Court disposed of Ext.P2 application stating that the defendant is entitled to get the sale deed executed, and accordingly issued the following order; _“1. The balance sale consideration deposited by petitioner/plaintiff on 28/5/2008 is accepted and he is entitled to get the execution of sale deed in respect of plaint schedule property as per the decree._ _2. Petitioner shall take steps for the execution of sale deed as expeditiously as possible._ _3. Considering the present stage of application, costs need not be imposed. Hence both parties are directed to suffer their_ OP(C) No.3184/2016 3 _respective costs at this stage.”_ 2. Pursuant to the aforesaid order, the aforesaid application was again heard on 1/3/2013 and when the counsel for defendant reported that he has no instruction, direction was issued to produce draft sale deed. At this stage, petitioner filed IA No. 978/2013 to set aside the _ex parte_ order dated 1/3/2013. The respondent herein filed an objection which resulted in order dated 24/1/2014 in IA No.978/2013. It was held that though it was reported that the matter is likely to be settled, the counsel on 1/3/2013 reported that he has no instruction and accordingly, the petitioner was set _ex parte_ . Since no medical certificate is produced, the application was dismissed with cost of `2,000/-. IA No.827/14 was filed by the petitioner to review the said order dated 24/1/2014 producing the medical certificate. The said application was dismissed by order dated 18/10/2016. In IA No.2931/2008, the Court below by Ext.P11 order dated 18/10/2016 directed the plaintiff to take steps to execute the deed. Learned counsel for the petitioner submits that no opportunity was given to him to contest the matter when attempts were made for preparing the sale deed. It is contended that the whole procedure adopted by the Court below was erroneous in so far as an application u/s 28 of the Specific Relief Act itself was not maintainable. Though there was a direction to deposit `15,000/- within three months, the amount is deposited only after four years from the date of Ext.P1 decree and no steps were taken to extend the time for payment. As such, the right to get specific OP(C) No.3184/2016 4 performance has been lost perpetually and therefore the impugned orders are liable to be set aside. 3. On the other hand, by filing a counter affidavit respondent/plaintiff had contended that pursuant to the direction issued by the Munsiff Court, sale deed was executed on 6/3/2014 in stamp paper and registered as sale deed no.567/2014. Therefore, according to the counsel, nothing further survives in the matter. It is also submitted that there is considerable delay in filing the Original Petition in so far as the impugned orders have been passed several years back. Ext.P4 order was passed as early as on 6/10/2010 and the challenge is made after 6 years. 4. Though there is considerable delay on the part of the petitioner in challenging the impugned orders, while exercising jurisdiction under Art.227 of the Constitution of India, I find that a glaring mistake had been committed by the Court below in issuing directions pursuant to an application filed u/s 28 of the Specific Relief Act. 5. It is clear from the materials placed on record that though a decree was passed as early as on 19/2/2004, and the plaintiff was directed to deposit the balance sale consideration before Court within 3 months i.e., on or before 19/5/2004, the amount is deposited only on 28/5/2008. Though it is stated in Ext.P2 affidavit that the same had been allowed by Court, in fact, the Court has not allowed the same. However, OP(C) No.3184/2016 5 the amount is seen deposited and the Court below in its order dated 6/10/2010 observed that the sale consideration deposited by the petitioner/plaintiff on 28/5/2008 is accepted and the plaintiff is entitled to get the sale deed executed. In fact, against IA No.2931/2008, petitioner had filed an objection stating that the application is barred by limitation and no notice was given regarding the extension of time to deposit the balance sale consideration. The Court below also observes that proceedings would show that the petitioner had notice regarding the deposit. However the Court below observes that though the application was filed in the trial side, Art.136 of the Schedule of Limitation Act 1963 applies and it has to be considered as an application during execution and accordingly found that the application is well within time. Such being the facts, what is to be considered is whether the application u/s 28 was maintainable or not. ## 6. S.28 of the Specific Relief Act reads as under:- _“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 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._ OP(C) No.3184/2016 6 _(2) Where a contract is rescinded under sub-section (1), the court—_ _(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor; and_ _(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the contract._ _(3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:—_ _(a) the execution of a proper conveyance or lease by the vendor or lessor;_ _(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease._ _(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be._ _(5) The costs of any proceedings under this section shall be in the discretion of the court.”_ 7. Sub section (1) of S.28 gives an opportunity to the defendant to have the contract rescinded on default being committed by the purchaser to pay the amount within the period allowed by the decree. When a contract is rescinded under sub-section (1), the Court can direct the purchaser, if he has obtained possession of the property, to restore such possession and consequential orders can be passed. Sub section (3) comes into operation only when the purchase money or the other sum 7 OP(C) No.3184/2016 which is ordered to be paid under the decree is paid within the period referred to in sub section (1), in which event, the Court may direct execution of a proper conveyance and delivery of possession. Sub section (4) indicates that no separate suit shall be filed at the instance of either the vendor or purchaser. 8. In the case on hand, apparently S.28(3) has no application since the plaintiff/decree holder had not deposited the balance sale consideration within the time allowed by Court. Though it is mentioned in the impugned order that the Court had allowed extension of time after verifying the details, both sides agree that there was no such order extending the time for payment other than Ext.P4 order which is now impugned. 9. There is no doubt about the proposition that the Court has the power to enlarge the period for specific performance. However, such an application has to be made within a reasonable time and it should be based on a specific request to be made in that regard. It is settled law and as held by the Apex Court in _**Mahanth Ram Das v. Ganga Das**_ (AIR 1961 SC 882) that Section 148 of the Code of Civil Procedure allows extension of time even after the original period fixed has expired and Section 149 is equally liberal. The expression “such further period as the Court may allow” under section 28 would mean the Court which had passed the decree or where the application u/s 28 is filed. It is also held OP(C) No.3184/2016 8 that Court has power u/s 148 of the Code of Civil Procedure to extend the time even after its expiry. But, in this case, it is pertinent to note that even in the application filed as Ext.P2, no request has been made for extension of time whereas the plaintiff himself had deposited the amount, without any order being passed extending the time. In Ext.P4 order dated 6/10/2010, the Court below did not extend the time for depositing the balance sale consideration but observes that the same is accepted without extending the time for depositing the amount. It was not open for the Court to permit deposit of the said amount as a valid deposit in terms of S.28(3). Further, it could be seen from the counter affidavit filed in IA No.2931/2008, the contention is that since the amount has not been deposited in time, he is not entitled for specific performance. When the right to seek specific performance is objected, it amounts to rescission of the contract. When the payment is due within three months from the date of decree and it is paid only after four years, it is for the Court to consider whether on the facts of the case, the time for payment is to be extended or not. In _**Hungerford Investment Trust Ltd v. Haridas Mundhra**_ (AIR 1972 SC 1826), it was held that the court which passes a decree for specific performance retains control over the decree even after the decree has been passed. It was also held that contract between the parties is not extinguished by passing of the decree for specific performance and the contract subsists notwithstanding the passing of the decree. In other words, an order for specific performance OP(C) No.3184/2016 9 of a contract is in the nature of a preliminary decree and the Court retains the power to make any stipulation it thinks fit with reference to the performance including the power to extend time. 10. Learned counsel for the respondent contended that there was a mistake in the schedule to the decree which required correction and it was done only in the year 2008. Therefore, there was delay in depositing the amount. But, it is relevant to note that the amendment sought for was only to the advantage of the plaintiff. It did not affect the right of the defendant to receive the money in time. Therefore this is an instance where the amount directed to be deposited towards balance consideration was remitted only after four years and no orders had been passed by the Court enlarging time. Under such circumstances, the entire procedure has become illegal and irregular. Court below had committed serious error in accepting the deposit without extending the time. In fact, necessary application ought to have been filed by the respondent u/s 28(3) for enlarging the time which would have given an opportunity to the petitioner to rescind the contract. In the light of the aforesaid factual circumstances, I am of the view that the original petition is liable to be allowed. 11. The sale deed had been executed in the year 2014 and this original petition is filed only in the year 2016. But in view of the glaring illegality committed by the Court below, which had virtually affected the OP(C) No.3184/2016 10 substantive right of the petitioner, it would be appropriate to keep the sale deed executed in abeyance without conferring any right on the plaintiff and the matter be heard afresh. Hence Exts.P4 and P10 orders are set aside. The respondent is permitted to file an application seeking enlargement of time to deposit the amount and the petitioner will be at liberty to file necessary objection to the same, which shall be considered afresh and in accordance with the procedure prescribed. The validity of the sale deed will be subject to any such decision to be taken by the Court below. The parties shall appear before the Court below on 17/9/2018. **Sd/-** ## **A.M.SHAFFIQUE** **Judge** OP(C) No.3184/2016 11 ## **APPENDIX** ## **PETITIONER'S/ EXHIBITS:** |**P1**|**TRUE COPY OF THE DECREE DATED 19.2.2004 OF**| |---|---| ||**THE PRINCIPAL MUNSIFF, CHERTHALA IN OS NO.**| ||**797/2002.**| |**P2**|**TRUE COPY OF IA NO. 2931/2008 IN OS NO.**| ||**797/2002 FILED BY THE RESPONDENT ON THE**| ||**FILES OF THE PRINCIPAL MUNSIFF, CHERTHALA.**| |**P3**|**TRUE COPY OF OBJECTION FILED BY THE**| ||**PETITIONER TO EXHIBIT P2 APPLICATION.**| |**P4**|**TRUE COPY OF THE ORDER DATED 06.10.2010 OF**| ||**THE PRINCIPAL MUNSIFF, CHERTHALA IN IA**| ||**NO.2931/2008 IN OS NO. 797/2002.**| |**P5**|**TRUE COPY OF ORDER DATED 01.3.2013 IN OF THE**| ||**PRINCIPAL MUNSIFF, CHERTHALA IA NO.**| ||**2931/2008 IN OS NO. 797/2002.**| |**P6**|**TRUE COPY OF IA NO. 978/2013 IN OS NO.**| ||**797/2002 ON THE FILES OF THE PRINCIPAL**| ||**MUNSIFF, CHERTHALA.**| |**P7**|**TRUE COPY OF OBJECTIONS TO EXHIBIT P6**| ||**INTERLOCUTORY APPLICATION FILED BY THE**| ||**RESPONDENT.**| |**P8**|**TRUE COPY OF ORDER DATED 20.1.2014 OF THE**| ||**PRINCIPAL MUNSIFF, CHERTHALA IN IA NO.**| ||**978/2013 IN OS NO. 797/2002.**| |**P9**|**TRUE COPY OF THE IA NO. 827/2014 IN OS NO.**| ||**797/2002 FILED BY THE PETITIONER ON THE**| ||**FILES OF THE PRINCIPAL MUNSIFF, CHERTHALA.**| |**P10**|**TRUE COPY OF ORDER DATED 18.10.2016 OF THE**| ||**PRINCIPAL MUNSIFF, CHERTHALA IN IA NO.**| ||**827/2014 IN OS NO. 797/2002.**| |**P11**|**TRUE COPY OF ORDER DATED 18.10.2016 OF THE**| ||**PRINCIPAL MUNSIFF, CHERTHALA IN IA NO.**| ||**2931/2008 IN OS NO. 797/2002.**| |**RESPONDENT'S EXHIBITS**|| **EXT.R1(A) : TRUE COPY OF THE SALE DEED NO.567/2014 OF SRO, KUTHIYATHODU. Rp //True Copy//** **PS to Judge**