Madras High Court
Kannan vs Nallusamy ... 1St on 4 September, 2023
C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 04.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
and
C.M.P.(MD)No.11714 of 2016
C.R.P.(MD)No.2488 of 2016
Kannan ... Petitioner/ II Respondent/II Defendant
Vs.
1.Nallusamy ... 1st Respondent / Petitioner/ Plaintiff
2.Nallan (Deceased)
3.Thangamany ... 3rd Respondent / III Respondent/III Defendant
(Memo dated 02.02.2017 in USR.No.593 is
recorded as R2 died, and the petitioner and R3,
who are already on record are recorded as LRs
of the deceased R2, vide Court order, dated
17.04.2023.)
Prayer: Civil Revision Petition filed under Article 115 of the Constitution
of India, against the order and decree dated 19.10.2016 made in E.P.No.61
of 2009 in O.S.No.79 of 1997, on the file of the District Munsif cum
Judicial Magistrate, Vedasandur.
For Petitioner : Mr.G.Gomathi Sankar
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
For Respondents : Mr.P.Rajagopalan for R1
: No appearance for R3
: R2 died
C.R.P.(MD)No.566 of 2018
Nallan (Deceased)
1.Kannan
2. Thangamany ... Petitioners/ Petitioners/ Defendants
Vs.
Nallusamy ... Respondent / Respondent/ Plaintiff
Prayer: Civil Revision Petition filed under Article 115 of the Constitution
of India, against the order and decree dated 19.07.2017 made in
unnumbered E.P.No. of 2017, on the file of the District Munsif cum
Judicial Magistrate, Vedasandur.
For Petitioners : Mr.G.Gomathi Sankar
For Respondents : Mr.P.Rajagopalan for R1
: No appearance for R3
: R2 died
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
COMMON ORDER
C.R.P.(MD)No.2488 of 2016 has been filed against the order,
dated 19.10.2016 made in E.P.No.61 of 2009 in O.S.No.79 of 1997, on the
file of the District Munsif cum Judicial Magistrate, Vedasandur.
2. C.R.P.(MD)No.566 of 2018 has been filed against the order,
dated 19.07.2017 made in unnumbered E.P.No. of 2017, on the file of the
District Munsif cum Judicial Magistrate, Vedasandur.
3. In C.R.P.(MD)No.2488 of 2016, the revision petitioner is the
second defendant, before the trial Court. The first respondent is the
plaintiff, and the third respondent is the third defendant before the trial
Court.
4. In C.R.P.(MD)No.566 of 2018, the revision petitioners are the
defendants, and the respondent is the plaintiff before the trial Court.
5. For the sake of convenience, the parties will be referred as per
the litigative status before the trial Court.
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
6. It appears that there was a decree against the defendant in
O.S.No.79 of 1997 for the relief of specific performance. Since the said
decree was not complied with, the plaintiff/decree holder has filed an
execution petition in E.P.No.72 of 2004. In which he ultimately got the
decree executed by getting the sale deed in his name.
7. However, though the sale deed was obtained through Court,
the decree holder did not deliver the vacant possession of the property. The
same necessitated the plaintiff to file an another execution petition in
E.P.No.152 of 2004 for delivery of possession. More interestingly, at the
stage of delivery of possession, the matter was referred to the Lok Adalat
and culminated into an award dated 08.07.2008. For ready reference, the
terms of the Lok Adalat award is extracted hereunder:
Terms of compromise
“Nkw;gb epiwNtw;Wjy; kDtpy; jPh;g;Gf;fldhspfs;
ey;yhd;> fz;zd; nrYj;j cs;s njhif &.50>000/-j;ij
(Ik;gjhapuk;) %d;W khj fhynfLTf;Fs; kDjhh; / thjp
ey;Yr;rhkp ngw;Wf;nfhs;tnjd xg;Gf;nfhs;sg;gl;lJ Nkw;gb
njhif KOtijAk; kDjhh;/thjp ngw;Wf; nfhz;lgpwF
kDjhh;/thjp ngw;w fpiuaj;ij uj;J nfhLj;JtplNtz;baJ.
ePjpkd;w itg;gPl;by; cs;s &.2>000/- (,uz;lhapuj;ij)
kDjhu;/thjp ngw;Wf;nfhs;s Ntz;baJ.
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
Nkw;gb O.S.No.239/2006 tof;if mjd; thjp
ma;ahf;fz;Z thg]; ngw;Wf;nfhs;tnjd KbT
nra;ag;gl;lJ.
Nkw;fz;l tpgug;gb tof;if Kbj;Jf;nfhs;s cga
jug;gpdh; xg;Gf;nfhz;lgbahy; Nkw;gb epiwNtw;Wjy; kDTk;
tof;Fk; js;Sgb nra;ag;gLfpwJ. nryT njhif ,y;iy.”
8. According to the Lok Adalat award, three months time was
granted to the defendant/judgment debtor to pay a sum of Rs.50,000/-. In
the event of payment of the said amount, then the plaintiff/decree holder
agreed to cancel the sale deed and to withdraw the suit in O.S.No.79 of
1997. But fortunately or unfortunately, the defendant was not in a position
to pay the amount until 19.01.2011, though he was directed to pay the
amount within three months from the date of the Lok Adalat award qua
from 08.07.2008.
9. It appears from the record that, since no payment was
forthcoming in terms of the Lok Adalat award dated 08.07.2008, the
plaintiff again on 27.07.2009, has filed yet another execution petition in
E.P.No.61 of 2009 for the relief of delivery of possession, since, the earlier
E.P.No.152 of 2004 for the relief of delivery of possession resulted in the
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
Lok Adalat award.
10. When the second execution petition in E.P.No.61 of 2009 was
taken up before the Court below, it was argued by the defendant that the
conditions laid down in the Lok Adalat award has been complied on
19.01.2011. Therefore, the plaintiff is not entitled for delivery of possession
and that he should execute the deed of re-sale in favour of the defendants.
However, the Court below has not accepted the contention of the
defendants herein and has ordered for the delivery of possession vide order
dated 19.11.2016.
11. It is also relevant to mention here that, based upon the Lok
Adalat award, dated 08.07.2008, the defendants has filed a separate
execution petition for directing the decree holder to comply the Lok Adalat
award. However, the said execution petition has been returned without
numbering. The same is also under challenge in C.R.P.(MD)No.566 of
2018.
12. Now, the short point to be considered is, whether the Lok
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
Adalat award, dated 08.07.2008, will prevail over the decree passed in
O.S.No.79 of 1997, dated 21.01.1997. It is well settled principles of law
that, in a suit for specific performance, until the decree is fully executed,
the same is like a preliminary decree. Therefore, the Court will have
control over the decree till the decree is fully satisfied.
13. Here in O.S.No.79 of 1997, by virtue of the Lok Adalat award
a new decree came into existence, on 08.07.2008. However, the
enforceability of this Lok Adalat award is subject to the compliance of the
terms of the said award otherwise the original decree, dated 25.09.2003,
will be intacts.
14. As extracted herein above, as per the terms of the Lok Adalat
award, Rs.50,000/- has to be paid to the plaintiff within a period of three
months from 08.07.2008. Admittedly, the said amount has not been paid to
the plaintiff. However, the same has been deposited before the Court,
during January – 2011, almost after a period of 2 ½ years. But, the said
deposit was made without any order for extension of time.
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
15. It is pertinent to mention here that, in the meanwhile the
plaintiff -decree holder has filed another Execution Petition in E.P.No.61 of
2009, which is impugned in this Civil Revision Petition, on 27.07.2009. In
which, the respondent has filed a counter on 15.06.2010. Wherein, he did
not think fit to say anything about the compliance of the Lok Adalat award,
dated 08.07.2008. But, curiously, took a defence that the Execution can be
made only as per the Lok Adalat award.
16. At this juncture, it is relevant to refer Section 28 of the
Specific Relief Act. The same is extracted herein :
“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 contract rescinded and on such
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
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) Where a contract is rescinded under sub-
section (1), the court
(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
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 lessee as earnest
money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase
money or other sum which he is ordered to pay under the
decree within the period referred to in sub-section (1), the
court 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:—
(a) the execution of a proper conveyance or lease
by the vendor or lessor;
(b) the delivery of possession, or partition and
separate possession, of the property on the execution of such
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conveyance or lease.
(4) No separate suit in respect of any relief which
may be 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 be in the discretion of the court.”
17. According to Section 28 (1) of the Specific Relief Act, if the
party does not comply the terms of the agreement, is entitled to apply to
rescind of contract. Admittedly, no application for rescission of the Lok
Adalat award was filed by the plaintiff. At this juncture, it assume
importance to mention that, though the judgment debtor has deposited
amount as per Lok Adalat award, during January – 2011, for such a delayed
payment no permission was sought for from the Court. As such, the said
payment is bad in law, under the following two grounds:
(i) the amount has been paid after long delay of 2 ½ years.
(ii) For such delayed payment, no permission qua no extension of
time was sought for by the respondent. Be that as it may.
18. With the above background, if we look at the facts of the
case, in the prism of Section 28(1) of the Specific Relief Act, we would
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
explicitly found grounds to rescind the terms of the Lok Adalat award, as
the respondent did not comply the same to its letter and spirit, and has not
filed any application for extension of time.
19. The learned counsel for the petitioner would rely upon the
judgment of the Hon'ble Supreme Court reported in 2005-6-SCC-478
(P.T.Thomas V. Thomas Job) and would contend that if any time limit
specified in Lok Adalat award, the Court is competent to extend the time in
appropriate cases. The above reported judgment has also further held that
the award of Lok Adalat is final and permanent, which is equivalent to
decree executable. This Court absolutely has no grievance in respect of the
legal proposition relied by the respondent and enunciated in the above
judgment.
20. The learned counsel for the respondent has also relied upon
the judgment reported in 2009-2-ILR (Kerala)-620 (Ambika Rajan V.
Basheera Beevi), 2017(174)AIC-566 (Smti.Twes Nongseij V.State of
Meghalaya) and would submit that the Lok Adalat award is binding. The
binding nature of the Lok Adalat award is well settled, and this Court also
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has no semblance of doubt over the said legal position. However, the issue
surfaces before this Court is, when there was the direction to the respondent
to pay the amount within a particular period of time, and when the same has
not been complied, what is the effect of the original decree dated
25.09.2003 passed in the suit.
21. In this regard, this Court would like to refer the judgment of
the Hon'ble Supreme Court reported in 2009-8-MLJ-417(SC) (Bhupinder
Kumar V. Angrej Singh). In the above judgment, the Hon'ble Supreme
Court after following the decision in K.Kalpana Saraswathi V.
P.S.S.Somasundaram Chettiar reported in (1980)-1-SCC-630 and also
after following the decision in Kumar Dhirendra Mullick and Ors. V.
Tivoli Park Apartments (P)Ltd., reported in (2005)-9-SCC-262, held that
the decree in the suit for specific performance is like a preliminary decree
and the suit would continue and under the control of the Court till either
party moves for passing final decree. The Hon'ble Supreme Court has also
held that though the Court has power to extend time, the same has to be
exercised by applying the principles of equity to both parties.
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
22. Here, in this case, though a decree was originally passed on
25.09.2003 and subsequently, a sale deed was also obtained by filing
Execution Petition through Court, vide order, dated 24.11.2004. After that,
an application for delivery of possession was also filed. Only at that
circumstances, a compromise was reached vide Lok Adalat award, dated
08.07.2008. Even, the said award is conditional in nature. However, there
is no default clause to the award.
23. In our case, since the respondent did not comply the award,
immediately, the petitioner has filed an application for delivery of
possession. Admittedly, on the date of filing of the Execution Petition, the
respondent did not pay any amount as per the Lok Adalat award. In a case
reported in 1999-1-SCR-349 (V.S.Palanichamy Chettiar Firm V.
C.Alagappan and Anr.), the Hon'ble Supreme Court has held that in order
to decide the issue of rescission of contract, the conduct of the parties and
the attending circumstances should also be taken into consideration. Here,
the conduct of the petitioner in filing the second execution petition during
2009, assumes importance.
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
24. Thus, this Court is of the view that from the filing of the
Execution Petition in E.P.No.61 of 2009, for the deliver of possession on
second time would emphatically and explicitly manifest the rescission of
the contract stipulated in the Lok Adalat award, dated 08.07.2008. The
rescission of contract has been further fortified by the act of omission by
the respondent in not paying the amount as stipulated in the Lok Adalat
award, within the stipulated time. Though the amount has been deposited
later on after a period of 2 12/ years, admittedly, for such delayed payment,
no permission was sought for by the respondent. Therefore, this Court is
not in a position to accept such a belated deposit of the amount as a legal
deposit.
25. From the above detailed discussion, what cumulatively
emerges is that, though there was a subsequent decree by way of Lok
Adalat award, dated 08.07.2008, since the conditions stipulated in the
award was not duly complied with, the same has been rescinded by the
petitioner by his conduct. As a result of which, the decree dated 25.09.2003
will prevail over the Lok Adalat award and liable to be enforced. Here, as
already discussed herein above, a sale deed was registered in the name of
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the plaintiff. Therefore, naturally, he is entitled to have the delivery of
possession, being the owner of the property. Thus, this Court could not find
any infirmity in the order passed by the Court below.
26. In the result, CRP(MD)No.2488 of 2016 is dismissed.
CRP(MD)No.566 of 2018.
27. In view of the dismissal of the C.R.P(MD)No.2488 of 2016,
the C.R.P(MD) No.566 of 2018 is also liable to be dismissed.
28. Hence, C.R.P(MD) No.566 of 2018 is dismissed.
Consequently, connected Miscellaneous Petition is closed.
04.09.2023
NCC : Yes/No
Index :Yes/No
Ls
To
1.The District Munsif cum Judicial Magistrate,
Vedasandur.
2.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
C.KUMARAPPAN.,J.
Ls
order made in
C.R.P.(MD)Nos.2488 of 2016 and 566 of 2018
04.09.2023
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