Punjab-Haryana High Court
Hemant Kumar vs Jai Chand And Another on 13 December, 2023
2023:PHHC:159241
C. R. No.7282 of 2019 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No.7282 of 2019
Pronounced On : December 13, 2023
Hemant Kumar .... Petitioner
vs.
Jai Chand and another .... Respondents
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. Sachin Mittal, Advocate
for the petitioner.
Mr. Paramveer Singh, Advocate
for Mr. Samir Rathore, Advocate
for respondent no.1.
* * *
GURBIR SINGH, J. :
1. Challenge in this revision petition is to order dated 17.08.2019,
passed by learned Additional Civil Judge (Senior Division), Hathin
(Annexure P-4), whereby the application filed by respondent no.1 for
recession of judgment and decree dated 01.07.2017 has been allowed.
2. The brief facts, relating to the passing of the impugned order,
are that respondent no.1 herein - Jai Chand son of Munshi entered into an
agreement to sell dated 02.11.2011 with the petitioner. The petitioner filed a
suit for specific performance. Vide judgment and decree dated 01.07.2017,
the said suit was decreed. It was held therein that the petitioner was entitled
for specific performance of the agreement dated 02.11.2011, for payment of
balance sale consideration and respondent no.1 was restrained from
interfering in possession over the suit property. Respondent no.1 was also
2023:PHHC:159241
directed to get the sale deed executed in respect of the suit property in favour
of the petitioner and proforma respondent no.2, within one month of passing
of judgment. Otherwise, the petitioner would be at liberty to get the sale
deed executed in his favour as per agreement.
3. Respondent no.1 moved an application that he approached the
petitioner many times for payment of balance sale consideration and
execution of sale deed in his favour but he neither paid the balance sale
consideration nor asked respondent no.1 for execution and registration of the
sale deed, whereas the petitioner was required to pay the balance sale
consideration within 45 days. So, the petitioner was not willing to perform
his part of the agreement. Under Section 28 of the Specific Relief Act, if
any decree-holder fails to pay the balance sale consideration and to get the
sale deed registered, then in that case, judgment and decree passed in his
favour is liable to be set aside.
4. In reply to the above-said application, the petitioner denied the
allegations and stated that he approached respondent no.1 to come present
before the office of Sub-Registrar, Hathin and receive the balance sale
consideration to execute the sale deed and get the same registered but
respondent no.1 avoided the matter on one pretext or the other.
5. After hearing both the parties, learned Trial Court allowed the
application filed by respondent no.1 and agreement to sell dated 02.11.2011
was rescinded, subject to the condition that respondent no.1 would repay the
money received by him as sale consideration to the petitioner, upon
restoration of possession by the petitioner.
6. Learned counsel for the petitioner has argued that after passing
2023:PHHC:159241
decree for specific performance, the Court does not become functus officio.
The Court has power to enlarge the time for execution of decree or to extend
time for compliance of the conditional decree, as mentioned in the decree for
specific performance. There was no time fixed in the decree for deposit of
the payment of the balance sale consideration and no notice was given by the
judgment-debtor to pay the said amount. So, the learned Trial Court could
not rescind the agreement to sell in question. The petitioner was always
ready and willing to perform his part of the contract. The balance amount
has already been deposited, in pursuance of the order dated 18.11.2019,
passed in the present revision petition. Learned counsel has relied upon a
judgment of Hon'ble Supreme Court in Sardar Mohar Singh vs. Mangilal
@ Mangtya - 1997 (9) SCC 217, decided on 15.01.1997.
7. Learned counsel for respondent no.1 has argued that the decree
in question was passed on 01.07.2017 and the sale deed was to be got
executed in respect of the suit property within one month. The petitioner did
not pay the balance amount within stipulated period nor moved any
application for extension of time to pay the said amount. So, learned Trial
Court has rightly passed the impugned order, thereby allowing application
moved by respondent no.1, rescinding the agreement to sell dated
02.11.2011. He has relied upon two judgments of Hon'ble Supreme Court,
passed in the cases of V.S.Palanichamy Chettiar Firm vs. C. Alagappan -
1999(1) RCR (Civil) 634 and P. Shyamala vs. Gundlur Masthan -
2023(2) RCR (Civil) 135.
8. I have heard the submissions made by learned counsel for both
the parties.
2023:PHHC:159241
9. The relevant concluding portion of the ex-parte decree dated
01.07.2017, which has been passed in the case in hand, reads as under :-
"It is ordered that, the suit of the plaintiff
succeed and decreed with costs to the effect that
plaintiff is entitled of specific performance
agreement dated 02.11.2011 on payment balance
sale consideration and defendants are restrained
from interfering in possession over the suit
property. Defendants are directed to get the sale
deed executed in respect of the suit property in
favour of the plaintiff and proforma defendant
within one month from today, otherwise the
plaintiff is at liberty to get the sale deed executed
in his favour as per agreement."
10. In case P. Shyamala (supra), relied upon by learned counsel
for respondent no.1, it is held that if a decree-holder, under Section 28 of the
Specific Relief Act, does not make application for extension of time for
making payment, equity demands that discretion be not exercised in favour
of the decree-holders and no extension of time be granted to them to comply
with the decree, while relying on the case V.S.Palanichamy Chettiar Firm
(supra).
11. In the case in hand, the decree was passed on 01.07.2017.
Although no time was fixed for depositing the amount of balance sale
consideration but specific directions were given to the defendants to get the
sale deed executed within one month from the date of passing the decree.
Otherwise, the plaintiff was given liberty to get the sale deed executed in his
favour as per the agreement. The plaintiff-petitioner did not take any step
for depositing the sale consideration amount and there is nothing on the file
2023:PHHC:159241
to show that the plaintiff-petitioner ever gave notice to the defendants-
respondents for execution of the decree. There is only oral version that the
plaintiff-petitioner approached the defendants-respondents to come before
the office of Sub-Registrar and to receive the balance sale consideration and
to execute and get the sale deed registered. During pendency of the
application, defendants-respondents made statement that they were ready to
get the sale deed registered but the plaintiff-petitioner was not ready. On
23.01.2019, the respondent made a statement that he had paid Rs.45,000/- to
respondent Jai Chand and he will pay the balance consideration amount to
get the sale deed registered. The case was adjourned. The plaintiff-
petitioner failed to pay the balance sale consideration amount and the matter
was dragged and ultimately, counsel for the plaintiff-petitioner made
statement that plaintiff-petitioner was ready to dispose of the property and
would make payment in December. The relevant extract of the impugned
order reads as under :-
"Now the present application has
been moved on 17.07.2018. Furthermore, perusal
of case file shows that on filing of the application
dated 02.01.2019 the applicant had made a
statement that he is ready to get the sale deed
registered but the plaintiff is not ready for registry.
On 23.01.2019 the respondent has made a
statement that he has paid Rs.45,000/- as per
payment to respondent Jai Chand and by 20th May
he will pay balance sale consideration and will get
the sale deed registered. The matter was adjourned
for 05.02.2019. However, no payment was made
by the respondent on 05.02.2019, 12.02.2019,
2023:PHHC:159241
26.02.2019, 27.02.2019, 07.03.2019, 20.05.2019,
30.05.2019, 31.05.2019, 17.07.2019 and even on
17.08.2019 including last opportunity. The counsel
for the respondent had stated that respondent-
plaintiff is ready for disposing of their property
and they shall make payment in December.
However, Ld. Counsel for the applicant
vehemently submitted that no further time be given
to the respondent as they are not in a position to
pay balance sale consideration and are only
lingering on the matter."
12. Since the plaintiff-petitioner failed to pay the balance
consideration amount within a reasonable time even after making the
statement in the Court and further time was sought till December, in such
circumstances, it can be safely concluded that plaintiff-petitioner was not
ready to pay the balance sale consideration amount and to get the sale deed
executed and registered. In case Sardar Mohar Singh (supra), relied upon
by learned counsel for the plaintiff-petitioner, it is held that the Court can
grant extension of time to the judgment-debtor to pay the amount or to
perform the conditions mentioned in the decree. In this case, the Trial Court
has directed the respondent to refund the earnest money and also to pay the
quantified damages, as agreed in the contract, within a period of three
months and in default, to execute the sale deed. No doubt, the Court can
grant extension of time after passing decree for specific performance of
agreement and the Trial Court has its power and jurisdiction to deal with
such matters till the decree is fully satisfied. In the case in hand, the
petitioner did not give notice to the judgment-debtor to receive the balance
2023:PHHC:159241
sale consideration. He did not move any application for permission to
deposit the balance sale consideration. The petitioner failed to pay the
balance sale consideration despite getting so many adjournments, as is clear
from the impugned order. Although order of rescinding the contract for sale
of immovable property, the specific performance of which has been decreed,
is a harsh order but decree-holder intentionally failed to pay the balance
amount of consideration. So, this Court is of the view that the learned Court
below is justified to rescind the agreement dated 02.11.2011.
13. Accordingly, I do not find any illegality, perversity or infirmity
in the impugned order dated 17.08.2019 passed by the Court below. The
present revision petition is without any merit and is accordingly dismissed.
14. Pending applications, if any, shall stand disposed of along with
this judgment.
December 13, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
