In C.A. Nos. 1363-1364 of 2023-SC- Sec.28 of Specific Relief Act seeks to provide complete relief to both parties in terms of decree of specific performance; Such power is discretionary & Court has to pass order as justice may require:SC
Justices M.R. Shah & C.T. Ravikumar [24-02-2023]

Read Judgment: P. SHYAMALA V. GUNDLUR MASTHAN

Mansimran Kaur

New Delhi, February 25, 2023: Section 28 of the Specific Relief Act seeks to provide complete relief to both the parties in terms of a decree of specific performance, the  Supreme Court has observed.

Feeling aggrieved and dissatisfied with the impugned common judgment passed by the High Court for the State of Telangana by which the High Court  dismissed the said revision petitions preferred by the appellant herein, the original revisionist  preferred the present appeals, in view of the same, the Top Court observed,  the  application filed by the plaintiff under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time to deposit the balance sale consideration was hopelessly delayed. 

A  Division bench of Justice MR. Shah and C.T. Ravikumar allowed the present appeals by observing that Section 28 of the Specific Relief Act seeks to provide complete relief to both the parties in terms of a decree of specific performance. Therefore, the trial Court failed to exercise the discretion judiciously in favour of the defendant and erred in exercising the discretionary power in favour of the plaintiff, that too with a delay of 853 days.

The respondent- original plaintiff instituted a Civil Suit of 2013 against the mother of the appellant – original defendant for specific performance of the agreement to sell dated May 9, 2012. In the agreement to sell, the late mother of the appellant agreed to sell the suit property for a total sale consideration of Rs. 23,00,000/-, against which an advance of Rs. 8,00,000/- was paid by the plaintiff.

The Trial Court passed an ex-parte judgment and decree and passed a decree for specific performance of the agreement to sell dated May 9, 2012.  While decreeing the suit, the trial Court directed the respondent – original plaintiff to deposit the balance sale consideration of Rs. 15, 00,000/- within two weeks before the trial Court. 

The trial Court also observed that in case the defendant fails to execute the sale deed on receiving the balance of sale consideration, the plaintiff is at liberty to get it done through process of law. Therefore, under the decree dated October 12, 2013, the plaintiff was required to deposit Rs. 15, 00,000/- within a period of two weeks from the judgment and decree dated October 12, 2013. 

 Thus, as per the above stated judgment and decree, the respondent – original plaintiff was required to pay/deposit the balance sale consideration of Rs. 15, 00,000/- on or before October 21, 2013.  However, the respondent herein – original plaintiff failed to pay/deposit the balance sale consideration as ordered by the trial Court.

The original plaintiff – respondent filed an application before the trial Court under Section 148 of the Code of Civil Procedure and Section 28 of the Specific Relief Act  and prayed for extension of time to deposit the balance sale consideration which the plaintiff was required to deposit on or before October 2, 2013  as per the judgment and decree dated October 12, 2013 . 

At this stage, it was also required to be noted that after the ex-parte judgment and decree, the mother of the appellant – original defendant died and the appellant being legal heir of the original defendant was brought on record. Simultaneously, the appellant, being the legal representative of the original defendant, filed an application under Section 28 of the Specific Relief Act, 1963 to rescind the Agreement to sell dated May 9, 2012. 

Feeling aggrieved and dissatisfied with the common order passed by the trial Court in I.A., the appellant filed the present revision applications before the High Court. By the impugned common judgment and order, the High Court dismissed the said revision applications. Hence, the present appeals.

After considering the submissions from both the sides, the Court at the outset noted that by an ex-parte judgment and decree dated October 12, 2013, the trial Court passed a decree for specific performance of the agreement to sell dated May 9, 2012. 

 In the agreement to sell the total sale consideration was Rs. 23, 00,000/-, against which Rs. 8,00,000/- was paid as advance. The balance sale consideration of Rs. 15,00,000/- was directed to be deposited/paid by the plaintiff under the ex-parte judgment and decree dated October 12, 2013 within two weeks from the said date, which expired on October 21, 2013.. 

Nothing was  on record that any steps were taken by the plaintiff either to deposit/pay the balance sale consideration of Rs. 15,00,000/- or even calling upon the defendant to execute the sale deed as per the judgment and decree passed by the trial Court dated October 12, 2013 till the present application under Section 148 CPC and Section 28 of the Specific Relief Act was filed with a huge delay of 853 days, seeking extension of time to deposit the balance sale consideration. 

The explanation which was given by the plaintiff, narrated hereinabove, can hardly be said to be a sufficient explanation as to why the plaintiff did not pay the balance sale consideration as per the judgment and decree or even did not make an application within a reasonable time under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time for making payment. If the plaintiff was ready with the money payable towards the balance sale consideration, he could have got the sale deed executed through power of attorney after effecting deposit/payment. In absence of any sufficient explanation, such a huge delay of 853 days ought not to have been condoned by the trial Court.

Reference was placed on the case of V.S. Palanichamy Chettiar Firm v. C. Alagappan and Another.

Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and considering Section 28 of the Specific Relief Act, the Court was of the opinion that the trial Court erred in exercising the discretion in favour of the plaintiff and erred in extending the time in favour of the plaintiff to deposit the balance sale consideration of Rs. 15, 00,000/- by condoning the huge delay of 853 days, which as observed was not explained sufficiently at all.

 The application filed by the plaintiff under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time to deposit the balance sale consideration was hopelessly delayed. 

“Section 28 of the Specific Relief Act seeks to provide complete relief to both the parties in terms of a decree of specific performance. Therefore, the trial Court failed to exercise the discretion judiciously in favour of the defendant and erred in exercising the discretionary power in favour of the plaintiff, that too with a delay of 853 days. The High Court erred in confirming the same and dismissing the revision applications”, the Court at the outset observed. 

Hence, in view of the observations stated above, both the appeals were allowed.