BHUPINDER KUMAR v. ANGREJ SINGH

Citation: [2009] 13 S.C.R. 978

Court: Supreme Court of India

Bench: P. SATHASIVAM, DEEPAK VERMA

Case summary

BHUPINDER KUMAR v. ANGREJ SINGH.pdf

Judgment text

[2009] 13 (ADDL. ) S. C. R. 978 -. >-. BHUPINDER KUMAR V. ANGREJ SINGH {Civil Appeal No. 5846 of 2009) AUGUST 28, 2009 [P. SATHASIVAM AND DEEPAK VERMA, JJ. ] }... -I Specific Relief Act, 1963: s. 28- Failure of period as the court may allow, pay the purchase money )tor 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ordered him to pay, the ~ vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on ,l such application the court may, by order, rescind the contract either so far as regards the party in default or A --l -altogether, as the justice of the case may require.

(2) Where a contract is rescinded under sub-section (1), i the Court- B (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to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 c 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 ,,; D connection with the contract. -· (3) If the purchaser or lesse"-· pays the purchase money or other sum which he is ordL1ad to pay under the .

decree within the period referred to in sub-section (1), the court E 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:- J- (a) the execution of a proper conveyance or lease by the F vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. G / (4) No separate suit in respect of any relief which may be -. I.. .. ( 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 H \·. be in the discretion of the court" -.. rft' 10. These provisions have been interpreted by this Court . in various decisions. In K. Kalpana Saraswathi v. P. S. S.

Somasundaram Chettiar, (1980) 1 SCC 630, this Court has held that the court has power under Section 28 of the Act to 8 extend time for making deposit. The following conclusion in para 4 is relevant:- "lt is perfectly open to the court in control of a suit for~if specific performance to extend the time for deposit, and · this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour. The disentitling circumstances relied upon by the defendant-respondent are offset by the false pleas raised in the course of the suit by him and rightly negatived. Nor are we convinced that the application for consideration and t! ~ extension of time cannot be read, as in substance it is, a1,. \~ petition for more time to deposit. Even so, specific ·performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief.

The final end of law is justice, and so the means to it too should be informed by equity. That is why he who seeks equity shall do equity. Here, the assignment of the mortgage is ·~ not a guileless discharge of the vendor's debt as implied · I in the. agreement to sell but a disingenuous disguise to arm ~herself with a mortgage decree to swallow up the property in case the specific performance litigation misfires. To sterilise this decree is necessary. equity to which the appellant must submit herself before she can enjoy the fruits of specific performance. n It is clear that the decree is in the nature of preliminary decre. e "l)μl and the suit would continue and be under the control of t~e :. ," ~ Court till either party moves for passing final decree. It is. als~ clear that though the court has power to extend time and it is [P. SATHASIVAM, J. J ""Yne duty of the court to apply the principle of equity to both A . parties. 11. In Kumar Dhirendra Mullick and Others v.

Tivoli Park Apartments (P) Ltd. (2005) 9 SCC 262, this Court, after analyzing earlier decisions, has concluded that when the court 8 passes the decree for specific performance, the contract ~etween the parties is not extinguished. The court does not lose 1~s jurisdiction after the grant of the decree for specific performance nor does it become functus officio. The decree for specific performance is in the nature of a preliminary decree, C and the suit is deemed to be pending even after the grant of such decree. Hence, the Court retains control over the entire matter even after the decree. Section 28 gives power to grant order of rescission of the agreement which itself indicates that Ull the sale deed is executed, the Trial Court retains its power ~d jurisdiction to deal with the decree of specific performance.

D Therefore, the court has the power to enlarge the time in favour 1 of the decree-holder to pay the amount or to perform the conditions mentioned in the decree for specific performance. It is clear that Section 28 gives power to the court either to extend the time for compliance of the decree or grant order of Ii rescission of the agreement. These powers are available to the l(rial Court which passes decree of specific performance. In other words, when the court passes the decree for specific ~erformance, the contract between the parties is not extinguished. To put it clear that the decree for specific F performance is in the nature of preliminary decree and the suit is deemed to be pending even after the decree. Sub-Section 1 of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 G g~es power to the Court to grant order of rescission of the ..

agteement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the • agreement/decree. In deciding application under Section 28 (1) H "' A· of the Act, the Court has to see all attending circumstances+ · including the conduct of the parties. - 12. If we apply the above principles to the facts of the present case, the order of the Executing Court and the High Court cannot be faulted with. The suit for specific performance 8 is in the nature of discretionary remedy and on equity, the appellant was not entitled to get the decree executed since he failed to place relevant materials about his inability to tende~).. or deposit the decreed amount. It is relevant to mention that the sale agreement was executed on 20. 11. 1990, the suit for C specific performance was filed on 13. 12. 1991 and suit was decreed on 13. 10.

1998 stipulating that the balance sale consideration was to be paid by 13. 01. 1999. In fact, only after the judgment debtor filed an application for rescission of agreement on 28. 05. 2001, the application for extension of time). P was moved on 13. 08. 2001. As discussed earlier, though th~_ Court has power and discretion to extend the time for fulfillment of the contract, in the case on hand, there is neither any material to show that the appellant was having the required money nor had he tendered or deposited the same as per the terms of E the decree. Both the Executing Court and the High Court found that there was no just and reasonable cause to extend the time for depositing the balance consideration. ):. 13. In the circumstances and the materials placed, wear~ f satisfied that due to bereft of any acGeptable material for extension of time, the Executing Court rightly declined to extend the time, consequently rescinded the contract as requested by the respondent judgment-debtor.

The High Court, after analyzing all these aspects and finding that the decision arrived at by the Executing Court is just and equitable, dismissed the revision. G We are in entire agreement with the said conclusion. Consequently, the appeal fails and the same is dismissed. ( D. G. Appeal dismis. sed.