Madras High Court
R.Shankar vs S.Manogari on 18 July, 2023
C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
and C.M.P.Nos.1993 of 2018, 1522 & 1523 of 2020
R.Shankar ... Petitioner in all the
four CRPs.
Vs.
S.Manogari ... Respondent in all the
four CRPs.
Common Prayer in C.R.P.Nos.3211 to 3213 of 2017: Civil Revision Petitions are
filed under Section 115 of the Civil Procedure Code, against the fair and decretal
order dated 11.04.2017 made in I.A.Nos.818 to 820 of 2017 in O.S.No.2788 of 2009
on the file of the learned XII Assistant City Civil Court, Chennai.
Prayer in C.R.P.No.300 of 2020: Civil Revision Petition is filed under Article 227 of
the Constitution of India, against the fair and decretal order dated 06.09.2019 made in
E.P.No.3470 of 2017 in O.S.No.2788 of 2009 on the file of the learned X Assistant
City Civil Court, Chennai.
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
In all the CRPs.
For Petitioners : Mr.M.Rajaraman
For Respondents : Mr.J.Kamaraj
COMMON ORDER
C.R.P.(NPD)No.300 of 2020 has been filed against an order of the Executing
Court directing the execution of the sale deed by the judgment debtor in favour of the
judgment creditor.
C.R.P.(NPD)Nos.3211 to 3213 of 2017 arise against an order passed in
I.A.Nos.818 to 820 of 2017.
2. The issues involved in all the Civil Revision Petitions are one and the same
and hence, they are disposed of by this common order.
3. The primary application is I.A.No.818 of 2017, which was filed under
Section 28(2)(b) of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act').
If that application is allowed, consequently, all the other applications will stand
allowed. On the contrary, if that application is dismissed, other applications will also
stand dismissed. The learned XII Assistant Judge, City Civil Court, Chennai,
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
dismissed I.A.No.818 of 2017 and consequently, the other applications. Aggrieved by
the same, C.R.P.(NPD)Nos.3211 to 3213 of 2017 have been preferred by the civil
revision petitioner/defendant/judgment debtor.
4. The undisputed facts are, a suit O.S.No.2788 of 2009 for specific
performance of an agreement of sale with respect to the superstructure of the property
was filed by the respondent/plaintiff/judgment creditor on 03.04.2009. The said suit
was decreed after contest on 22.12.2009. This decree was appealed against in
A.S.No.239 of 2010 before the City Civil Court, Madras. The said Appeal Suit was
also dismissed on 06.07.2012. Aggrieved by the concurrent findings, a Second Appeal
was presented by the civil revision petitioner before this Court in S.A.No.972 of 2012.
The Second Appeal was also dismissed on 17.10.2012.
5. Thereafter, an application was filed by the civil revision petitioner/judgment
debtor in I.A.No.15947 of 2015 seeking to withdraw the amount deposited by the
judgment creditor into Court i.e., to the credit of O.S.No.2788 of 2009. The said
application was dismissed by the trial Court on 08.06.2016 holding that if the
judgment debtor wants the purchase money deposited by the judgment creditor into
Court, then he shall first execute the sale deed and thereafter, receive the amount.
There is no dispute that as per the decree, the sale consideration was deposited into
Court before the time fixed by the Court. The suit was decreed on 22.12.2009 and one
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
month's time was granted to deposit the amount. The said amount was deposited
before one month's time i.e., 22.01.2010.
6. Mr.M.Rajaraman, the learned counsel appearing for the civil revision
petitioner/judgment debtor would submit that he took out an application under
Section 28 of the Act, since the judgment creditor did not call upon the judgment
debtor to come and execute the sale deed. According to him, Section 28 of the Act
will cover instances not only as specifically stated under Section 28(1) of the Act, but
would also include other circumstances as seen from the marginal notes in the statute.
He would want me to extend Section 28 of the Act to cover instances where, even
after the decree and after the deposit, the judgment creditor should have called upon
the judgment debtor to execute the sale deed and in case, he does not do so, it shows
that the judgment creditor is the defaulting party and therefore, Section 28 of the Act
will apply. In support of his propositions, the learned counsel would refer to the
following judgments:
(i) Sunity Chandra Bose vs. Nil Ratan Sinha AIR 1985 Calcutta 282
Division Bench;
(ii) S.P.Gupta and others vs. President of India and others AIR 1982 SC 149;
(iii) Delhi Judicial Service Association, Tis Hazari Court, Delhi, vs. State of
Gujarat and others AIR 1991 SC 2176;
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
7. The purport of the decree for a specific performance is not only a direction as
against the judgment creditor to deposit the amount within the time, but also calls
upon the judgment debtor to execute the sale deed. Unlike a pre-suit notice in a suit
for specific performance where, the proposed plaintiff calls upon the proposed
defendant to execute the sale deed, no such procedure is contemplated under the Code
of Civil Procedure or under the Specific Relief Act, in situations post decree. It is
expected that the judgment debtor will comply with the decree once the judgment
creditor performs her part of the contract.
8. Reading the decree in this case, the duty on the judgment creditor was to
deposit a sum of Rs.1,00,000/- on or before 22.01.2010. There is no dispute that the
said amount was also deposited within the time granted by the trial Court. Therefore,
the judgment creditor had performed her part of the contract. It was up to the
judgment debtor to perform his part of the contract namely, execution of the sale deed.
Without executing the sale deed, the judgment debtor wanted to withdraw the amount.
On that ground, it was opposed by the judgment creditor stating that unless and until
the sale deed is executed, he is not entitled to the amount. The learned trial Judge in
I.A.No.15947 of 2015 dated 08.06.2016 passed an order and it reads as follows:
“Unless and until the petitioner/defendant executes the sale deed in
favour of the respondent/plaintiff he is not entitled to withdraw the
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
amount of Rs.1,00,000/-. After executing the sale deed in favour of the
respondent/plaintiff, the petitioner shall withdraw the balance sale
consideration of Rs.1,00,000/- which is lying on the account of this Court.”
9. This makes it clear that the Court had cast upon a duty on the judgment
debtor to execute the sale deed, but till date, unfortunately, he has not done so. Being
left with no other option, the judgment creditor has moved the Court and has shown
her intention to put the decree into execution by filing E.P.No.3470 of 2017.
10. Mr.M.Rajaraman, would argue taking reliance upon the judgment of the
Division Bench of the Calcutta High Court in the case of Sunity Chandra Bose vs.
Nil Ratan Sinha AIR 1985 Calcutta 282, that since the judgment creditor prevented
the judgment debtor from withdrawing the amount, Section 28 of the Act would
apply.
11. A careful reading of the judgment of the Division Bench of the Calcutta
High Court cited supra shows that the defendant in that case was hard pressed for
money to perform his daughter's marriage and therefore, took out an application for
withdrawal of the amount. That was prevented by the plaintiff in the suit and
therefore, the Court came to a conclusion that though the defendant was willing to
receive the amount and proceed with the agreement of sale, it was the plaintiff, who
prevented the performance of the contract. I should also note, it was not a situation
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
post the decree, but it was the situation, which arose pending the Appeal Suit. That
fact makes a lot of difference between both the situations. As held by the Calcutta
High Court, if the plaintiff had wanted the agreement of sale to be converted into a
sale deed and when the defendant was ready to receive the amount, the plaintiff
should have readily permitted the defendant to withdraw the amount and ensure that a
sale deed is executed.
12. On the contrary, in this particular case, the judgment creditor had performed
all that she had to do namely, filed a suit to convert the agreement of sale into a decree
and thereafter, in compliance with the decree, also deposited the amount into Court.
The judgment debtor need not have waited till filing of execution for the purpose of
receipt of the amount. If the sale deed had been executed by the judgment debtor in
favour of the judgment creditor and still the judgment creditor had opposed the
withdrawal of the application, that would have certainly made her a party at default
within the meaning of Section 28 of the Act. However, in this particular case, it is the
judgment debtor, who is at fault by not executing the sale deed and receiving the
amount, but wanted to put a cart before the horse by withdrawing the amount without
execution of the sale deed.
13. A further aspect to be noted that it is not as if the judgment debtor did not
challenge the decree of the trial Court. He tried out all the measures available to him.
He is rightly entitled to take all the reliefs that are available to him. Thereafter, it is
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
not open to him to turn around and say that it is the judgment creditor who should
comply with the decree, he would not comply with the same.
14. The second submission of Mr.M.Rajaraman is that the marginal note of
Section 28 of the Act says that the Court has the power to receive the contract “under
certain circumstances”. Section 28(1) only specifies one such circumstance and
therefore, it should be expanded to the circumstances, which are not contemplated
under Section 28(1). The power to direct a party to execute the sale deed is one based
on equity. It is traceable to the equitable jurisdiction of the English Courts. The Court
always retains control over the decree and if the circumstances present, whereby
injustice will be caused to one party, if the decree for specific performance is enforced
as it stands, then, the Court can always rescind the decree. I am not inclined to
exercise that power to the petitioner in the present case, because as already premised,
it is the judgment debtor who has been at fault, he did not comply with the decree, but
pushed the judgment creditor to file an execution petition. Had he executed the sale
deed as directed by the decree or atleast after the disposal of the Second Appeal and
still the judgment debtor was insisting on to proceed with the proceedings, perhaps it
might be a circumstance to look against the judgment creditor. But that is not the
situation here. The judgment creditor did all that she can do, but the judgment debtor
has been dragging on the matter from the date of disposal of the Second Appeal till
date.
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
15. In so far as the two authorities that the marginal note must be read to
include the circumstances, one cannot quarrel with the said proposition for the simple
reason as I have already pointed out, sitting as a Court of equity, this Court or the City
Civil Court exercising the power of specific performance always retain the power to
rescind a contract, when it is shown that the application of the decree as it stands is
going to result in injustice to one party. If I were to rescind the contract in the present
case, injustice will result only to the judgment creditor not to the judgment debtor.
Apart from that, if I were to agree with Mr.M.Rajaraman, I will be rewriting the
statute, which I am not willing to do so.
16. The learned counsel would submit that there is no stay of the Execution
Petition, despite the same, the Executing Court has not proceeded further with the
execution.
17. The failure to execute the sale deed is not a mistake of the judgment
creditor, but lies elsewhere. I will not blame the judgment creditor for not getting the
sale deed executed through the Court, for there is a lot of process involved and it does
not solely lie on the doors of the judgment creditor. The delay in the Court
proceedings cannot enure in favour of the judgment debtor. The Executing Court is
requested to proceed with E.P.No.3470 of 2017 and complete the same within a period
of four months from the date of receipt of a copy of this order.
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
18. With the above observation, all the Civil Revision Petitions stand
dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
18.07.2023
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
kj
To
1.XII Assistant Judge
City Civil Court, Chennai.
2.X Assistant Judge
City Civil Court, Chennai.
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C.R.P.(NPD)Nos.3211 to 3213 of 2017 & 300 of 2020
V.LAKSHMINARAYANAN,J.
Kj
C.R.P.(NPD)Nos.3211 to 3213 of 2017
& 300 of 2020 and C.M.P.Nos.1993 of 2018,
1522 & 1523 of 2020
18.07.2023
https://www.mhc.tn.gov.in/judis
