Decree holder challenged an order under Section 28 Specific Relief Act rescinding a 1993 sale agreement for non-deposit of balance consideration despite decree in 2005 and execution filed in 2008. The High Court held non-deposit for years justified rescission and dismissed the writ petition.
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NC: 2024:KHC:23229 WP No. 5917 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 5917 OF 2017 (GM-CPC)
BETWEEN:
MR. M. VIJAYA KUMAR AGED 42 YEARS, S/O. LATE SRI. MANGILAL, EARLIER RESIDENT OF NO.2841/7B, MAHAVEER NAGAR, MYSORE CITY, NOW RESIDING AT BELUR TOWN, BELUR TALUK, HASSAN DISTRICT-573201
…PETITIONER
(BY MS. ADITI GURJAR, ADVOCATE FOR SRI. SHRIKARA P.K., ADVOCATE)
AND:
Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA
NC: 2024:KHC:23229 WP No. 5917 of 2017
1(d) N. DAKSHAIANI D/O LATE NARAYANAPPA, AGED ABOUT 44 YEARS,
RESPONDENTS NO.1(a) TO (d) ARE RESIDING AT NO.157, K.T. STREET, MYSORE, MYSORE DISTRICT-571201.
SINCE DEAD REPRESENTED BY HIS LRS.,
2(a) MR. KUMAR, S/O LATE NARAYANAPPA AGED ABOUT 40 YEARS,
2(b) MR. MANJUNATHA, S/O LATE NARAYANAPPA, AGED ABOUT 38 YEARS, 2(c) N. DAKSHAIANI D/O LATE NARAYANAPPA AGED ABOUT 44 YEARS, RESPONDENTS NO. 2(a) TO 2(c) ARE RESIDING AT NO.157, K.T. STREET, MYSORE, MYSORE DISTRICT 571 201.
…RESPONDENTS
(BY SRI. CHIDANANDA P, ADVOCATE FOR RESPONDENT NOS.1(b), 1(c) AND 1(d); RESPONDENT NOS.2 AND 3 ARE SERVED AND UNREPRESENTED
CAUSE TITLE IS AMENDED VIDE COURT ORDER DATED 27.05.2022)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 28.10.2016 VIDE ANNEXURE-A PASSED BY THE HON'BLE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT MYSURU PASSED IN EX.NO.204/2008 ALLOWING THE IA.NO.3/2016 FILED BY THE JUDGMENT DEBTOR 1(d) AND 2 OF CODE OF CIVIL PROCEDURE, 1908 AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order dated 28.10.2016 passed on I.A. No.III/2016 in Ex. No.204/2008 on the file of the Principal Senior Civil Judge and CJM., Mysuru, the decree holder is before this Court.
registered sale deed in favour of the plaintiff in respect of the suit schedule property by receiving the balance sale consideration calculated at Rs.1,100/- per square feet and directed all the defendants to put the plaintiff in its possession failing which the plaintiff is at liberty to get it registered and to get its possession in due process of law.
not deposited the sale consideration before the Court or paid the same to the judgment debtors to get a registered sale deed in respect of the suit schedule property. As such, the agreement of sale has to be rescinded as per Section 28 of the Specific Relief Act, 1963 ('the Act' for short) and they have also raised some other grounds with regard to the executability of the decree. To that, the decree holder has filed his objections stating that the application under Section 28 of the Act, is not maintainable and further that the decree does not specify the period in which the remaining sale consideration has to be paid and the judgment debtors have never requested the decree holder to deposit the money. Further, the initial amount that is paid by the decree holder is being enjoyed by the judgment debtors and as such the application is liable to be dismissed.
between the decree holder and the judgment debtors in respect of the suit schedule property as per sale agreement dated 29.11.1993 was rescinded and further, the judgment debtors were directed to pay Rs.25,000/- with interest at the rate of 18% per annum from the date of payment till realization to the decree holder.
v. Haridas Mundhra and others1 . Basing on the said judgment, learned counsel submits that when the time limit is not prescribed in a judgment and decree, reasonable time has to be taken into consideration. It is submitted that when there is no such demand from the judgment debtors to pay the money and further even this application under Section 28 of the Act is filed in the year 2016 whereas the execution petition
1 (1972) 3 SCC 684
is filed by the decree holder way back in the year 2008. The Court below on these grounds ought to have dismissed the application. It is submitted that the Court below went beyond the scope of Section 28 of the Act and allowed this application and same is liable to be set aside.
Court in a similar set of facts, has observed that though there is no time limit prescribed, still decree holder has to deposit the amount within a reasonable time at least when the execution
2 LAWS(KAR)-2014-3-162
petition is filed even by that time, he should have deposited the amount and if the amount is not deposited within a reasonable time by the decree holder, the Court can pass an order under Section 28 of the Act rescinding the contract at the behest of the judgment debtor. He submits that the order passed by the Court below is a well considered one and no interference is called for.
the execution petition is filed, balance sale consideration was not deposited by the decree holder and application under Section 28 of the Act is filed in the year 2016. Even as on that
NC: 2024:KHC:23229 WP No. 5917 of 2017
day also, no amount was deposited. The contention of the learned counsel for the petitioner that there was no occasion for the decree holder to pay the amount as there was no demand by the judgment debtors and no time limit is prescribed in the judgment as such the Court below ought not to have passed an order and further argument that in the year 2016, such an application under Section 28 of the Act is not maintainable has no legs to stand. Before going into the merits of the matter, it is appropriate to extract Section 28 of the Act. The same reads as under:
" 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 application the court may, by order, rescind the contract either so far as regards
NC: 2024:KHC:23229 WP No. 5917 of 2017
the party in default or altogether, as the justice of the case may require.
(2) Where a contract is rescinded under subsection (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 the 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 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."
A bare perusal of the provision makes it clear that, whenever an application is filed under Section 28 of the Act, when the decree holder fails to pay the money or the other sum, which the Court has ordered him to pay within a period allowed by the decree or such further period as the Court may allow. In such
a situation, the person who has suffered the decree has a right to apply to the Court to rescind the contract. Now, in this case, the judgment debtor Nos.1(d) and 2 filed this application under Section 28 of the Act as no amount is deposited and the grounds which are raised by the decree holder for not depositing the amounts are not valid and tenable. Hence, nondeposit of the amount even after 18 years after the decree is passed, not depositing the amount even after the execution petition is filed and even in 2016 when this application is filed,
NC: 2024:KHC:23229 WP No. 5917 of 2017
all these circumstances clearly gives rise to filing of an application under Section 28 of the Specific Relief Act and the Court below had rightly allowed the application filed under Section 28 of the Specific Relief Act and this Court finds no reason to interfere.
Accordingly, the Writ Petition is dismissed .
Pending I.As., if any, shall stand closed.
SD/JUDGE
SMA
List No.: 1 Sl No.: 20
1 issue framed by the court
Whether the court below could rescind the sale agreement under Section 28 of the Specific Relief Act when the decree fixed no time for payment of balance consideration.
Colour shows how this judgement treated each authority
Hungerford Investment Trust Limited v. Haridas Mundhra and othersReferred
(1972) 3 SCC 684 · Who else cites this
T.L Rajagopal v. S.N. ShivakumarApplied
LAWS(KAR)-2014-3-162
2 provisions across 2 enactments
M. Vijaya Kumar
Smt. Nanjamma (dead by LRS)
N. Shashi Kumar (dead, by LRS)
Kumar
Manjunatha
T. Nagaraju
Lalitha Kanneganti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
