Bombay High Court

Prakash Vitthal Kale vs Maharashtra Pulse Mills, Jalgaon ... on 23 February, 2021

Bench: R. G. Avachat

                                                              WP.2531.2014.odt


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                      WRIT PETITION NO.2531 OF 2014

Prakash s/o. Vitthal Kale (died),
Age : 37 years,
Occ. Agri., r/o. 244,
Bhavani Peth, Near Petrol Pump,
Jalgaon,
through legal representatives-
1-A. Sau. Ashalata w/o. Prakash
Kale, Age : 69, Occ. Household,
r/o. 244, Bhawani Peth,
Jalgaon - 425 001
and others                                    ..Petitioners

      Vs.

Maharashtra Pulse Mills,
Jalgaon, a registered
Partnership Firm,
through its Partner
Laxmichand Hirji Gala (died),
Age : 72 years, Occ. Business,
r/o. Sangeeta Apartment,
Opp. Mahesh Pragati Hall,
Ring Road, Jalgaon
through Legal Representatives -
1-A. Mrs. Raksha Anil Kenya,
Age : 47 years, Occ. Household,
r/o. 2nd Floor, Methilda Building,
Ash Lane, Ranade Road,
Shivaji Park,
Dadar (W), Mumbai
and others                                    ..Respondents




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Mr.R.N.Dhorde, Senior Advocate i/b. Mr.V.R.Dhorde, Advocate
for petitioners
Mr.K.C.Sant, Advocate for respondent nos.1-A, 1-B, 1-C-1,
1-C-2 and 1-d
Respondent Nos.2 to 5 - served
                             ----
                         CORAM : R.G. AVACHAT, J.

RESERVED ON : FEBRUARY 18, 2021 PRONOUNCED ON : FEBRUARY 23, 2021

ORDER :-

The challenge in this Writ Petition is to the order

dated 25.02.2014 passed by 6th Joint Civil Judge, Junior

Division, Jalgaon, below application, Exhibit-179 in Regular

Darkhast No.152 of 2012 (Special Darkhast No.2 of 1978). By

the impugned order, the respondent herein (decree holder) has

been allowed to deposit Rs.42,000/-, petitioner no.1

(deceased) - original Judgment Debtor has been directed to

execute sale deed and in the event of his failing to do so, the

respondent - decree holder were given liberty to get executed

the sale deed through Court.

                                             3                                 WP.2531.2014



BRIEF RESUME OF FACTS :

2. The respondent, partnership firm, filed a suit being

Special Civil Suit No.4 of 1975 for specific performance of

agreement for sale against petitioner no.1. On 30.07.1977,

the suit was decreed. The respondent/firm filed proceedings

(Regular Darkhast No.2 of 1978) for execution of the decree on

06.02.1978. The petitioner/judgment debtor preferred First

Appeal (295 of 1978). The same came to be dismissed on

23.06.1982. Under the decree, the petitioner/judgment debtor

was directed to obtain Non-Agriculture (N.A.) permission from

the concerned authority within a period of two months and

then, execute sale deed in favour of the respondent/decree

holder on receipt of Rs.42,000/-.

3. Since the petitioner/judgment debtor did not obey

the decree, the executing Court passed order dated 06.09.1980

appointing a Court Commissioner for moving competent

authority for seeking N.A. Permission. On 14.01.1983, the

Collector rejected N.A. Permission. On 18.06.1991, however,

the Collector, Jalgaon, granted N.A. permission for residential

4 WP.2531.2014

purpose. The order granting N.A. permission was challenged

by the petitioner/judgment debtor before the Commissioner. In

January 1992, the Commissioner set aside the Collector's order

granting N.A. Permission. He remanded the case back to the

Collector with a direction to give the petitioner/judgment

debtor an opportunity of hearing. The respondent/decree

holder challenged the said order before the State Government

unsuccessfully.

4. The respondent/decree holder challenged the

Government's order before this Court in Writ Petition No.627 of

1994, which came to be allowed. In the meanwhile, the

execution proceedings were dismissed on 30.04.1994 on the

ground that name of the respondent/decree holder - firm and

it's partners were changed. Soon after dismissal of the

execution proceedings, petitioner/judgment debtor sold the

land to respondent nos.2 to 5. The respondent/decree holder

challenged the order of dismissal of the execution proceedings

in Civil Revision Application No.389 of 1994. This Court

allowed said Revision Application on 19.06.2003.

5 WP.2531.2014

5. It is only thereafter, on 13.01.2014, the respondent/

decree holder filed application below Exhibit-179 seeking

permission to deposit the amount of Rs.42,000/-. On hearing

the petitioner/judgment debtor and the respondent/decree

holder, the executing Court allowed the application below

Exhibit-179 in term of the order stated herein above. Said

order is under challenge in this Writ Petition.

6. Mr.Dhorde, learned senior counsel appearing for the

petitioner/judgment debtor, would submit that the application

below Exhibit-179 was moved thirty six years after the suit was

decreed and ten years after Writ Petition No.627 of 1994 was

allowed setting aside the order of dismissal of the execution

proceedings. The application is conspicuously silent to state

reasons, as to why the application was filed so belatedly.

According to learned senior counsel, the relief of specific

performance is discretionary. A decree granting specific

performance is a preliminary decree until the same is executed.

The respondent/decree holder has all along to be ready and

willing to perform his part of the contract. The

6 WP.2531.2014

respondent/decree holder was to deposit the amount of

balance consideration within a time frame of two months after

passing of the decree. In support of his submissions, learned

senior counsel placed reliance on the following authorities :-

(i) V.S.Palanichamy Chettiar Firm Vs. C.

Alagappan and anr., (1999)4 SCC 702;

               (ii)     Bhupinder Kumar             Vs.      Angrej        Singh,
                        (2009)8 SCC 766;
               (iii)    Prem Jeevan Vs. K.S.Venkata Raman and
                        anr., (2017)11 SCC 57;

(iv) Ravi Setia Vs. Madan Lal and ors., (2019)9 SCC 381;

(v) Azhar Sultana Vs. B. Rajamani and ors., (2009)17 SCC 27

According to learned senior counsel, the respondent/decree

holder did not offer any explanation for not depositing the

amount within a reasonable time. Same indicates the

respondent/decree holder to have not been ready and willing to

perform his part of the contract. The executing Court,

therefore, ought not to have allowed the application Exhibit-

179.

7 WP.2531.2014

7. Mr.Sant, learned counsel for the respondent/decree

holder, would, on the other hand, submit that it was the

petitioner/judgment debtor, who is responsible for such a long

delay in execution of the decree. He has not come with clean

hands. Equitable consideration would, therefore, not be in his

favour. Under the decree, no time limit was given for

depositing the amount. Section 28 of the Specific Relief Act,

1963 ("the Act", for short) would, therefore, have no

application. The executing Court, on balancing the equities,

exercised its discretion in granting the application below

Exhibit-179. No interference with the impugned order is,

therefore, warranted. Learned counsel places reliance on the

following decisions:-

(i) Kumar Dhirendra Mullick and ors. Vs. Tivoli Park Apartments (P) Ltd., (2005)0 SCC 262;

(ii) Hari s/o. Ramji Vs. Mahadu s/o. Kerba Tekale died through L.Rs. Shivaji Mahadu Tekale and ors., 2006(6) Mh.L.J.110;

(iii) Kisan s/o. Shripat Patil and anr. Vs. Ragho s/o. Vedu Patil, 2007(4)Mh.L.J. 313;

(iv) Surinder Pal Soni Vs. Sohan Lal (D), Through L.R. and ors., 2019(9)SCALE 564;

                                               8                              WP.2531.2014



                  (v) Surya Dev Rai Vs. Ram Chander Rai and
                  ors., AIR 2003 SC 3044



8.                It was a suit filed in the year 1975.            The suit was

decreed in July, 1977. The proceedings for execution of the

decree were initiated in the year 1978. The appeal preferred

against the decree was dismissed in June. 1982. Thus, the

decree granting specific performance of agreement for sale

attained finality. Since then, the petitioner/judgment debtor,

instead of obeying the decree, could successfully stall the

execution of the decree. Learned counsel for the

respondent/decree holder was justified in submitting that even

the proceedings for execution of the decree could be managed

to be dismissed in default. Within days of dismissal of the

execution proceedings, petitioner/judgment debtor transferred

the suit land in favour of respondent nos.2 to 5.

9. It is true that the respondent/decree holder has not

offered any explanation in application Exhibit-179, for not

depositing the amount soon after initiation of the execution

9 WP.2531.2014

proceedings. The application Exhibit-179 is also silent to

explain the delay of little over ten years in preferring the said

application after Writ Petition No.627 of 1994 was allowed in

December, 2004 setting aside the order of dismissal of the

execution proceedings.

10. I have carefully perused the authorities relied on by

the learned senior counsel for the petitioner/judgment debtor. I

find all those authorities to be distinguishable on facts. There

could be no two views over what has been submitted by

learned senior counsel for the petitioner/judgment debtor

relying on the observations made in those authorities. A case

has to be decided on its facts and circumstances. A little

change of a fact here and there makes a precedent

inapplicable. The gist of the observations made in the

authorities relied on, is that a relief of specific performance of

contract is discretionary. A decree passed in the suit for specific

performance is a primary decree until the same is executed by

execution of registered document/conveyance. The respondent/

decree holder must prove to have always been ready and

10 WP.2531.2014

willing to perform his part of contract. Contract between parties

is not extinguished when Court passes decree for specific

performance. The Court granting decree does not become

functus officio. It remains vested with power to declare

rescission of contract. Failure to deposit amount within time

fixed by the Court is indicative of incapacity of the respondent/

decree holder to perform his obligations. For seeking extension

of time to deposit the amount of balance consideration,

sufficient, substantial and cogent grounds must be pleaded.

11. It would be apposite to refer to Section 28 of the

Act:-

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

11 WP.2531.2014

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.

                       (2)       .....
                       (3)       .....   "

12. Section 28 of the Act empowers the Court either to

extend the time for compliance of the decree or grant order of

rescission of agreement. The order of rescission of agreement

could only be passed on an application moved in that regard.

No such application has been preferred by the

petitioner/judgment debtor, although reference to such relief

has been averred in reply to the application Exhibit-179. Power

to grant of relief of extension of time under Section 28 of the

Act is discretionary. Section 28 has application only in a case,

where, under the decree, a time limit has been prescribed for

performance of a particular condition. It is, therefore,

necessary to peruse the terms of the decree.

12 WP.2531.2014

13. The decree passed in the suit reads as under:-

" It is hereby ordered that the defendant Prakash Vithal Kale do obtain N.A. permission from the concerned authority within a period of two months and execute the sale deed of the suit land in favour of the plaintiff on receipt of Rs.42,000/- from the plaintiff. If the defendant failed to do so such N.A.

permission will be obtained through Court and the sale deed executed on behalf of the defendant through Court in favour of the plaintiff on his depositing Rs.42,000/- in the Court. On execution of the sale deed the plaintiff shall be entitled to possession of the suit land. The expenses for getting N.A. permission and registration of the sale deed are to be borne by the plaintiff. The costs of this suit shall be borne by the defendant with his own.

Decree be drawn up accordingly.

14. Aforesaid terms of decree, undoubtedly, indicate

that the petitioner/judgment debtor was directed to obtain N.A.

permission from the concerned authority within a period of two

months and then execute sale deed of the suit land in favour of

the respondent/decree holder on receipt of Rs.42,000/- from

the respondent/decree holder. In the event of failure of the

petitioner/judgment debtor to do so, N.A. permission was to be

13 WP.2531.2014

obtained through Court and sale deed was to be executed in

favour of the respondent/decree holder through the Court, on

his deposit of Rs.42,000/- in the Court. The aforesaid terms

are crystal clear to indicate that the respondent/decree holder

was not directed to deposit the amount of balance

consideration within a time frame. It was the petitioner/

judgment debtor, who did not obey the decree and prolonged

the execution till date. True, the respondent/decree holder

ought to have deposited the amount within a reasonable period

when there was no time stipulation. The executing Court has

observed in the impugned order that as soon as all the

objections are decided, the respondent/decree holder filed this

application to deposit the remaining balance amount. The

factual observations in the judgment and orders are presumed

to be correct. Nothing has been brought to the notice of this

Court that these observations are not consistent with the facts

and circumstances of the case or the events in the execution

proceedings.

                                              14                                 WP.2531.2014



15.            Since       under       the   decree,   there       was       no      time

stipulation for the respondent/decree holder to deposit the

amount of balance consideration, Section 28 of the Act has no

application. Even if it is assumed that Section 28 applies, the

petitioner/judgment debtor has not filed an application for

rescission of the contract. The power under Section 28 of the

Act extend the time is discretionary. The executing Court has

rightly exercised its discretion in permitting the

respondent/decree holder to deposit the amount of balance

consideration.

16. I do not find any jurisdictional error in granting the

application below Exhibit-179. No interference is, therefore,

called for with the impugned order.