LexCHANDA (DEAD) THROUGH LRS. versus RATTNI AND ANR.
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A CHANDA (DEAD) THROUGH LRS. v. RA TTNI AND ANR. MARCH 23, 2007 B [DR.ARIJITPASAYATANDLOKESHWARSINGHPANTA,JJ.] Specific Relief Act, 1963: S.28-Power under-Held, is discretionary-On facts, decree of specific C performance of contract passed-In execution proceedings, plaintiff's failure to deposit the balance sale consideration-No prayer made by plaintiff before trial Court and High Court for deposit or extension of time-Order of rescission of contract rightly passed on application filed by defendant- Specific Relief Act, 1877-s.35(c). D The defendant-respondent enteretJ into an agreement to sell land to ' plaintiff-appellant and received earnest money. The sale deed was to be executed on payment of balance sale consideration. Appellant filed suit for specific performance of agreement to sell on the promise that respondent did not execute the sale deed. Trial Court decreed the suit and directed respondent E to execute sale deep on receipt of balance sale price and also to get it registered within 2 months from the date of decree. Appellant did not deposit the balance sale price within the time allowed by Court. The respondents did not execute the sale deed. F Appellant moved an application for execution of decree pleading that since the respondents had failed to execute sale deed the same was to be executed through Court. Respondents moved an application u/s.28 of the Specific Relief Act, 1963 praying for rescission of the agreement to sell as appellant had failed to deposit the balance sale consideration. The trial Court allowed the application and rescinded the contract Accordingly, the execution G application by appellant was dismissed. High Court dismissed the revision petition. Hence the present appeal. Dismissing the appeal, the Court H 402 ... -+ .,., 4 .. ~ """ j ...... ... CHANDA (DEAD) THROUGH LRS. v. RA TTNI 403 HELD: I. Section 28 of the Specific Relief Act, 1963 corresponds to s. 35 (c) of the Specific Relief Act, 1877 (the 'repealed Act') under which it was open to the Vendor or lessor in the circumstances mentioned in that Section to bring a separate suit for rescission; but this Section goes further and gives to the Vendor or lessor the right to seek rescission in the same suit, when after the suit for specific performance is decreed the plaintiff fails to pay the purchase money within the period fixed. The present section, therefore, seeks to provide complete relief to both the parties in terms of a decree for specific performance in the same suit without requiring one of the parties to initiate separate proceedings. The object is to avoid multiplicity of suits. Likewise under the present provision where the purchaser or lessee has paid the money, he is entitled in the suit for specific performance to the reliefs as indicated in sub-section (3) like, partition, possession etc. A suit for specific performance does not come to an end on passing of a decree and the Court which as passed the decree for specific performance retains·the control over the decree even after the decree has been passed. (Para 9) (407-E-G; 408-A) 2. The decree for specific performance has been described as a preliminary decree. The power under s. 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet s.28 of the Act provides for complete relief to both the parties in terms oftbe decree. The Court does not cease to have the power to extent the time even though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit would stand dismissed. The power exercisable under this Section is discretionary. (Para 10) (408-A-B) 3. The stand now taken by appellant that there was no direction to pay within a particular time was not pleaded before the trial Court and High Court and is clearly unsustainable. [Para 11) [408-D) Kumar Dhirendra Mullick and Ors. v. Tivoli Park Apartments (P) Ltd, [2005) 9 sec 262, distinguished. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5494 of2000. From the Final Judgment Order dated 21.5.1999 of the High Court of Punjab and Haryana at Chandigarh in C.R.No. 4509 of 1998. A B c D E F G Neeraj Kr. Jain, Sanjay Singh, Sandeep Chaturvedi and Ugra Shankar H Prasad for the Appellants. A 404 SUPREME COURT REPORTS [2007] 4 S.C.R. Naresh Kaushik, B.S. Methaila, Arnit
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