P. SHYAMALA versus GUNDLUR MASTHAN

Citation: [2023] 3 S.C.R. 35 · Decided: 24-02-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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   [2023] 3 S.C.R. 35
35
P. SHYAMALA
v.
GUNDLUR MASTHAN
(Civil Appeal Nos.1363-1364 of 2023)
FEBRUARY 24, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Specific Relief Act, 1963 : s. 28 – Rescission of agreement to
sell, the specific performance of which is decreed – On facts,
agreement to sell the suit property between the late mother of the
appellant and the respondent – Suit for specific performance by
the respondent – Trial court passed an ex parte decree and directed
the respondent to deposit balance sale consideration, however, the
respondent failed to pay the same – After 853 days the respondent
filed an application u/s. 148 CPC and s. 28 of the Specific Relief
Act for extension of time to deposit the balance amount – Trial court
allowed the application of the respondent while dismissed the
appellant’s application u/s. 28 – High Court dismissed the revision
filed by the appellant – Held : Nothing is on record that any steps
were taken by the respondent either to deposit/pay the balance sale
consideration or even calling upon the appellant to execute the
sale deed as per the judgment and decree passed by the trial court
till the application u/s. 148 CPC and s. 28 of the Specific Relief Act
was filed – If the respondent was ready with the money payable
towards the balance sale consideration, he could have got the sale
deed executed through power of attorney after effecting deposit/
payment – In absence of any sufficient explanation, such a huge
delay of 853 days ought not to have been condoned by the trial
Court – Moreover, s. 28 of the Specific Relief Act seeks to provide
complete relief to both the parties in terms of a decree of specific
performance – Therefore, the trial court failed to exercise the
discretion judiciously in favour of the appellant and erred in
exercising the discretionary power in favour of the respondent, that
too with a delay of 853 days – High Court erred in upholding the
same – Code of Civil Procedure, 1908 – s. 148
Allowing the appeals, the Court
HELD: 1.1 At the outset, it is required to be noted that by
an ex-parte judgment and decree dated 12.10.2013, the trial Court
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SUPREME COURT REPORTS
[2023] 3 S.C.R.
passed a decree for specific performance of the agreement to
sell dated 9.5.2012. In the agreement to sell dated 9.5.2012, the
total sale consideration was Rs. 23,00,000/-, against which Rs.
8,00,000/- was paid as advance. The balance sale consideration
of Rs. 15,00,000/- was directed to be deposited/paid by the plaintiff
under the ex-parte judgment and decree dated 12.10.2013, within
two weeks from the said date, which expired on 21.10.2013.
Nothing is on record that any steps were taken by the plaintiff
either to deposit/pay the balance sale consideration of Rs.
15,00,000/- or even calling upon the defendant to execute the
sale deed as per the judgment and decree passed by the trial
Court dated 12.10.2013 till the present application under Section
148 CPC and Section 28 of the Specific Relief Act was filed on
7.6.2017/19.06.2017 with a huge delay of 853 days, seeking
extension of time to deposit the balance sale consideration. The
reasons for delay are set out hereinabove. The explanation which
was given by the plaintiff, narrated hereinabove, can hardly be
said to be a sufficient explanation as to why the plaintiff did not
pay the balance sale consideration as per the judgment and decree
or even did not make an application within a reasonable time
under Section 148 CPC and Section 28 of the Specific Relief Act
seeking extension of time for making payment. If the plaintiff 9
was ready with the money payable towards the balance sale
consideration, he could have got the sale deed executed through
power of attorney after effecting deposit/payment. In absence of
any sufficient explanation, such a huge delay of 853 days ought
not to have been condoned by the trial Court. [Para 5][42-E-H;
43-A-B]
1.2. The Court is of the opinion that the trial Court erred in
exercising the discretion in favour of the plaintiff and erred in
extending the time in favour of the plaintiff to deposit the balance
sale consideration of Rs. 15,00,000/- by condoning the huge delay
of 853 days, which as observed hereinabove has not been
explained sufficiently at all. After the plaintiff was directed to
deposit the balance sale consideration of Rs. 15,00,000/- within a
period of two weeks from the date of ex-parte judgment and decree
dated 12.10.2013, which the plaintiff failed t

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