29 Jan 2121

The equity demands that substantial justice should be done - Gauhati High Court

Case : Mrs. Ranjana Bezbaruah and Anr. v. Smt. Banti Bharali CRP/262/2017

Court : Gauhati High Court

Bench : Justice Kalyan Rai Surana

Decided on : 29 Jan 2121

The Relevant Statutes

Section 28 of the Specific Relief Act, 1963

Section 47 and Order XX, Rule 12A of the Code of Civil Procedure, 1908

Brief Facts & Procedural History

1. The petitioner had filed this application under Article 227 of the Constitution of India for the legality and validity of the order dated 21.07.2017, passed by the learned Civil Judge, Sonitpur, Tezpur in T.S. No. 22/2005.

2. The respondent is the plaintiff in T.S. No. 22/2015, which was filed for specific performance of a contract for the sale of the suit property. The said suit was partly decreed vide judgment and decree dated 30.06.2008, thereby allowing refund of the consideration money of Rs.1,75,000/- (Rupees one lakh seventy-five thousand only), but was denied specific performance of a contract to obtain sale deed of the suit land. The aggrieved petitioners had preferred an appeal, which was registered as T.A. No. 2/2008.

3. The said appeal was allowed vide judgment and decree dated 30.09.2011, passed by the learned District Judge, Tezpur, thereby setting aside the decree passed by the learned trial Court. The learned trial Court had granted a further thirty days’ time to the petitioners to deposit the balance sale consideration of Rs.50,000/- and get the sale deed executed as per the decree. It is seen that the learned first appellate Court had passed its judgment and decree on 30.09.2011. The respondent had thereafter filed an execution petition on 17.09.2012.

4. The petitioners had filed a petition under section 47 of the Code of Civil Procedure, 1908 on 22.04.2016, by which it was brought to the notice of the learned executing Court that balance consideration of Rs.50,000/- was not paid as per the appellate judgment. The petitioners had contested the said application by filing the objection.

5. The learned trial Court had taken up the said objection, registered as Misc. (J) Case No. 28/2016 in the original side and passed the impugned order dated 21.07.2017.

The Issue of the Case

Whether the learned trial Court had committed jurisdictional error in granting an extension of time of further thirty days to the respondent to get the sale deed executed, but also rejecting the petition under section 28(1) of Specific Relief Act, 1963 by virtue of the impugned order?

The Observations of the Court

1. The Honourable Gauhati High Court observed that the learned trial Court only considered the case of the respondent that she had made her claim in a suit filed in the year 2005, which was decreed on 30.09.2011, but failed to consider that despite the “directory” nature of judgment dated 30.09.2011 to make payment of balance sale consideration within thirty days, the respondent did not comply with the said direction even after thirty days of passing the impugned order.

2. The Honourable Gauhati High Court referred to the case of Rina Bora Vs. Sangeeta Chowdhury & Ors., (2019) 5 GLR 607, this Court had examined the provisions of section 28(1) of the Specific Relief Act, 1963 in light of the provisions of Order XX Rule, 12A of the Code of Civil Procedure, 1908 and it was held that the provisions of Order XX, Rule 12A mandates that in the decree for specific performance of sale ordering payment of purchase money by the purchaser, a specific period for payment must be made. It was further held that non-mentioning of a specific time period to complete the part of the plaintiff-purchaser for specific performance of the contract shall hit the provision stipulated under section 28 of the Specific Relief Act, 1963.

3. In the present case in hand, the learned first appellate Court had granted thirty days’ time to the respondent to make payment of balance sale consideration, which was not complied with. Therefore, it is seen that although the learned trial Court had held that such direction to deposit balance sale consideration was a directory, it failed to appreciate the provisions of Order XX Rule 12A of the Code of Civil Procedure, 1908 which leaves no scope for any doubt that mandates that in the decree for specific performance of sale ordering payment of purchase money by the purchaser, a specific period for payment must be made.

4. The Honourable Gauhati High Court considered the ratio laid down in the case of Rina Bora Vs. Sangeeta Chowdhury & Ors., (2019) 5 GLR 607 and Chanda Vs. Rattni (2007) 14 SCC 26, the Court is constrained to hold that the non-deposit of balance consideration money within thirty days from 30.09.2011, the date of judgment passed by the learned trial Court is hit by the provisions of section 28(1) of the Specific Relief Act, 1963. The typed copy of the order dated 17.08.2017 leaves no room for doubt that the respondent had deposited a sum of Rs.50,000/- on 17.06.2018, long after the time allowed by the first appellate judgment had expired and also long after extended time as granted by the impugned order dated 21.07.2017 had expired. Thus, the learned trial Court is found to have committed jurisdictional error in passing the order dated 21.07.2017, impugned herein.

5. The Honourable Gauhati High Court noticed that the present litigation is continuing for about 16 years from the year 2005. Hence, it seemed appropriate that the Honourable Gauhati High Court Court passes orders as envisaged under section 28 of the Specific Relief Act, 1963. It revoked the unilateral sale agreement dated 11.10.2002 executed by petitioner no.1 in favour of the respondent.

The Decision Held by the Court

1. The Honourable Gauhati High Court allowed the application.

2. It directed the petitioner to deposit the part of sale consideration amount of Rs.1,75,000/- received by petitioner no.1 with interest thereon @ 6% (six per cent) on and from the date of filing of the suit till the date of actual deposit before the learned trial Court.

3. The deposit should be made within one month from this order passed. In the event there is any delay in making such deposit, the petitioners-defendants shall be liable to pay interest @ 9% on the defaulted amount on and from the date of this order till such sum is deposited in full.

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