Allowed

Chinnupappal v. Rugmmani

Kerala HC12 Jun 2012CRP/37/2012

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of applications for condonation of delay and extension of time to deposit balance sale consideration. The High Court held that while the trial court has the power to extend time, the petitioners failed to adduce evidence to justify the delay and were denied an opportunity to testify. The impugned order was set aside and proceedings remitted.

What did the court decide?

The impugned order dated 13.07.2011 is set aside. I.A.Nos.3180 and 3181 of 2010 remitted for fresh decision after parties adduce evidence.

Chinnupappal Vs Rugmmani — Specific Performance | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934

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CRP.No. 37 of 2012 ()

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I.A.NOS.3180 & 3181 OF 2010 IN OS.749/2002 of PRL.MUNSIFF COURT, PALAKKAD

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REVISION PETITIONER(S)/PETITIONERS/LEGAL HEIRS OF DECEASED PLAINTIFF:

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CHINNUPAPPAL

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W/O.LTE MAYILSWAMY, AGED 51 YEARS PAYITTAMKAD KANJIKODE, PALAKKAD TALUK & DISTRICT.

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RAMARAJ (MINOR) PAYITTAMKAD, KANJIKODE PALAKKAD TALUK& DISTRICT

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SARAVANKUMAR (MINOR) PAYITTAMKAD, KANJIKODE PALAKKAD TALUK DISTRICT

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GANESH (MINOR) PAYITTAMKAD, KANJIKODE PALAKKAD TALUK DISTRICT

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(MINORS 2 TO 4 ARE REPRESENTED BY THEIR GUARDIAN MOTHER THE 1ST PETITIONER )

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BY ADV. SRI.RAJESH SIVARAMANKUTTY

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RESPONDENT(S):

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RUGMMANI

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W/O. THANKAVELU, DOOR NO.32 BHARTHIYAR STREET CHAVADI PUTHUR, ETTIMADA, MADHUKKARA COIMBATORE, TAMIL NADU - 641001.

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BY ADV. SRI.T.C.SURESH MENON BY ADV. SRI.P.S.APPU BY ADV. SRI.A.R.NIMOD

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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C.R.P. No.37 of 2012 -------------------------------------Dated this the 12^th day of June, 2012. ORDER

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This civil revision arises from the common order dated 13.07.2011 on I.A.Nos.3180 and 3181 of 2010 in O.S.No.749 of 2002 of the court of learned Principal Munsiff, Palakkad.

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Petitioners are the legal heirs of the deceased plaintiff who, on 09.03.2005 obtained a decree against the respondent for specific performance of an agreement for sale of plaint B schedule property. The decree, it is not disputed, directed the respondent to execute the sale deed within one month on receiving the balance sale consideration (`27,500/-) failing which the original plaintiff could deposit the balance sale consideration in the court within three months and get the sale deed executed through the court. Neither did the respondent execute the sale deed within one month nor the original plaintiff deposit the money. A few years passed away with neither sides taking any action in the matter. Original plaintiff died on 02.08.2010. On 19.10.2010 petitioners deposited the balance sale consideration in the trial court and filed I.A.Nos.3180 and 3181 of 2010 on 08.11.2010, the former for condonation of the delay and the latter, under Sec.28 of the Specific Relief Act (for short, “the Act”) for extension of time for deposit of the amount. Those applications were resisted by the respondent. On 24.11.2011 respondent filed I.A.No.310 of 2011 for

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CRP No.37/2012

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rescission of the contract under Sec.28 of the Act. That application was dismissed for default on 17.06.2011. On I.A.Nos. 3180 and 3181 of 2010, learned Munsiff passed order on 13.07.2011 dismissing the same holding that there is no sufficient explanation for the delay and that sufficient cause for not depositing the balance sale consideration in the court is not shown. That common order is under challenge in this Civil Revision.

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Learned counsel for petitioners has contended that dismissal of I.A.Nos.3180 and 3181 of 2010 is not correct. According to the learned counsel, in the absence of any positive refusal or wilful failure on the part of the original plaintiff in getting the sale deed executed, court below was not justified in dismissing I.A.Nos.3180 and 3181 of 2010. Learned counsel has placed reliance on the decisions in Joseph George v. Chacko Thomas (1992 (1) KLT 6), Anandavally v. Natesan (1992 (2) KLT 833) and Chithambaran v. Viswambaran & another (2000 (1) KLJ 591) in support of the above contention. It is argued that petitioners have explained the circumstances under which the original plaintiff was not able to deposit the sale consideration within the time specified in the decree. A further argument of the learned counsel is that if at all deposit of the amount is delayed by the original plaintiff and that would result in monitory loss to the respondent, that could be remedied by the court by ordering payment of interest on the balance sale consideration. To support that argument, reliance is placed on the decision in Shamsu Subra Beevi v. Alex (2000 (3) KLT S.N.26) . Learned counsel argues that even after expiry of time

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CRP No.37/2012

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granted by the decree it is within the power of the court under Sec.28 of the Act to grant time for deposit of the amount and even a formal application for that is not required. Learned counsel has placed reliance on the decisions in Ramesh v. John K.Joseph (1995 (1) KLT 801) and Vijayan v. Vivek (2002 (2) KLJ 671) .

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In response it is argued by the learned counsel for respondent that though I.A.No.310 of 2011 filed by the respondent for rescission of the contract was dismissed on 17.06.2011, an application for restoration of the same is pending consideration and the possibility of the trial court allowing that application and restoring I.A.No.310 of 2011 cannot be ruled out. It is argued that apart from what is stated in the affidavit of the 1^st petitioner in support of I.A.Nos.3180 and 3181 of 2010, petitioners have not adduced any evidence in support of the averments notwithstanding that it was denied by the respondent. According to the learned counsel, the discretionary power is to be exercised in favour of the decree holder only when sufficient cause is shown. Learned counsel has invited my attention to paragraph 6 of decision in Ramesh v. John K.Joseph .

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There could be no doubt that the court has the power to extent the time for deposit of balance sale consideration even after expiry of the time. In this case, the decree was passed on 09.03.2005, it directed the respondent to receive balance sale consideration and execute the sale deed within one month on failure of which the original plaintiff could deposit the balance sale

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CRP No.37/2012

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consideration in court within three months and get the sale deed executed through court. Deposit was made on 19.10.2010 followed by I.A.Nos.3180 and 3181 of 2010 filed on 08.11.2010. In the light of the above said authoritative pronouncements it was within the power of the trial court to extent the time for deposit if the court was satisfied that there is sufficient cause to do so.

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As regards the circumstances under which a contract could be rescinded under Sec.28 of the Act, the decisions cited by the learned counsel for petitioners say that it is only when a positive refusal or wilful failure on the part of the decree holder to deposit the amount is proved that the court could rescind the contract under Sec.28 of the Act.

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Now the question is whether petitioners or the original plaintiff had sufficient cause for non-deposit of the amount on time. In the affidavit in support of I.A.Nos.3180 and 3181 of 2010 it is stated that immediately after the decree dated 09.03.1995 the original plaintiff approached the respondent and demanded execution of the decree but she evaded. The original plaintiff had to go to Tamil Nadu which was his native place where he fell ill and had to lay paralised. 1^st petitioner (wife of the original plaintiff) also had to be that place to look after the original plaintiff who was undergoing treatment with native medicines. Thereafter the original plaintiff and the 1^st petitioner returned to their place of residence where the original plaintiff breathed the last on 02.08.2010.

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CRP No.37/2012

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The averments in the affidavit have been denied by the respondent. Any of the petitioners did not enter the witness box to state about the reason for the delay. Petitioners ought to have adduced some evidence in support of the averments in the affidavit. In that view of the matter I am inclined to give petitioners an opportunity to adduce evidence.

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In the light of what I have stated above, the impugned order is liable to be set aside and the applications remitted to the court of learned Principal Munsiff, Palakkad for fresh decision after giving parties opportunity to adduce evidence in support of their contentions in I.A.Nos.3180 and 3181 of 2010.

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Resultantly, civil revision is allowed as under:

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i. The common order dated 13.07.2011 on I.A.Nos.3180 and 3181 of 2010 in O.S.No.749 of 2002 of the court of learned Principal Munsiff, Palakkad is set aside.

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ii. I.A.Nos.3180 and 3181 of 2010 are remitted to the trial court for fresh decision after giving both sides opportunity to adduce evidence if any in respect of their contentions in the said applications.

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iii. Parties shall appear in the trial court on 29.06.2012.

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CRP No.37/2012

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Chinnupappal v. Rugmmani

Case brief

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Chinnupappal v. Rugmmani

Case brief

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