Allowed

K.S.Venkata Raman v. Prem Jeevan

Telangana HC1 Sept 2014CRP/2810/2012

Case brief

AI extract

What is this about?

The High Court allowed revisions against orders dismissing an execution petition in a suit for specific performance. The court held that the decree did not stipulate time for the petitioner to pay balance consideration, and thus Section 28 of the Specific Relief Act was not attracted since the judgment debtor had not failed to pay. The court directed the executing court to proceed with execution.

What did the court decide?

Revisions allowed; orders under revisions set aside; Executing Court directed to proceed with execution of the decree.

K.S.Venkata Raman Vs Prem Jeevan — Civil Procedure and Limitation | Telangana HC (2014)

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*** THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY**

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C.R.P. Nos.2807 & 2810 of 2012

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COMMON JUDGMENT:

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% 01-09-2014

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#K.S. Venkata Raman ..Petitioner Vs.

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$Prem Jeevan and another ..Respondents !Counsel for the petitioner : Sri G. Rama Sarma, ^Counsel for the Respondents : Sri M.A. Mukheed < GIST: > HEAD NOTE: ? Cases referred [1] ) 2010 (6) ALD 47 2) 2010 (5) ALD 807

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THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY

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C.R.P. Nos.2807 & 2810 of 2012

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COMMON JUDGMENT:

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These two revisions arise out of execution proceedings initiated in O.S.No.404 of 2005 on the file of the XIV Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad.

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The petitioner filed the suit against the respondents for the relief of specific performance of an agreement of sale, dated 27-09-2002, in respect of the property bearing No.4-1-1151, Boggulakunta, Hyderabad. After contest by the parties, the suit was decreed on 25-09-2008. After the decree became final, the petitioner filed E.P.No.132 of 2011. It was stated that according to the decree, the respondents were under obligation to execute the sale deed within a period of two months by receiving the balance of sale consideration, and though he offered to pay the balance of consideration within that time, the respondents refused to receive the same and have also avoided the execution of the sale deed.

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After receiving notice in the E.P., the 1^st respondent filed E.A.No.1 of 2012 with a prayer to dismiss the E.P. He stated that the petitioner was under obligation to pay the balance of consideration within two months, and since he did not comply with the same, the contract stood rescinded, and thereby the decree became inexecutable. The petitioner opposed the E.A., by filing counter. He pleaded that the time stipulated by the trial Court in the decree was for the respondents to execute the sale deed,

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duly receiving the balance of consideration and though he offered to pay the consideration, the respondents refused to receive it.

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The Executing Court allowed the E.A., through order dated 12-04-2012. C.R.P.No.2807 of 2012 is filed against the said order.

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As a result of allowing the E.A.No.1 of 2012, the Executing Court dismissed the E.P., through a separate order on the same date. C.R.P.No.2810 of 2012 is filed against the same.

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Sri G. Rama Sarma, learned counsel for the petitioner submits that the default in compliance with the decree was on the part of the respondents, be it, as regards receiving the balance of consideration or execution of the sale deed, within the stipulated time. He contends that the only stipulation as to time, made in the decree, was vis-à-vis the respondents, and even though no time as such was stipulated for the petitioner for paying the balance of consideration, he offered to pay the amount within the period of two months, but the respondents refused to receive the same. Learned counsel submits that the trial Court placed wrong interpretation on Section 28 of the Specific Relief Act (for short ‘the Act’) and has misread it. Learned counsel submits that the petitioner has also got issued a notice dated 04-12-2008 to the respondents, but the same was returned as not claimed, and thereby, the conduct on the part of the respondents is evident.

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He further submits that the Executing Court has dismissed the E.P., without even conducting an enquiry, and valuable rights that have been accrued under the decree, have taken away, in contravention of law.

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Sri M.A. Mukheed, learned counsel for the respondents,

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on the other hand, submits that the time stipulated by the

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trial Court, in its decree, was both, for the petitioner to deposit the balance of consideration, and for the respondents, to execute the sale deed, and since the latter depended upon the former, Section 28 of the

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Act gets attracted, and the E.P was liable to be dismissed.

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He submits that the plea that the petitioner offered to pay the balance of the decretal amount is not borne out by record, and even the so-called notice was not received by the respondents.

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He contends that the Executing Court has taken correct view of the matter.

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The suit filed by the petitioner herein for the relief of specific performance was decreed on 25-09-2008. The operative portion of the judgment, which in turn, is reflected in the decree, reads as under:

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“In the result, the suit of the plaintiff is decreed with costs directing the defendant No.1 to execute and register sale deed in favour of the plaintiff in respect of the suit schedule property within two months from the date of this order after receipt of balance sale consideration of Rs.10,50,000/- at 6% per annum from 27.09.2002 i.e., from the date of agreement of sale Ex.A1. It is further decree that in case defendant No.1 refuse to receive the balance sale consideration with interest the plaintiff is at liberty to deposit the said amount into the Court and to obtain regular sale deed through Court.”

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From a perusal of this, it becomes clear that the

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1^st respondent is placed under obligation to execute the sale deed in respect of the suit schedule property in favour of the petitioner herein within two months from the date of the decree, after receiving the balance of consideration of Rs.10,50,000/- with interest at 6% per annum from the date of the agreement. As is in case of any other decree, in a suit for specific performance it was ordained that, if the 1^st respondent fails or refuses to receive the balance of consideration with interest, it shall be open to the petitioner to deposit the amount into the Court and obtain regular sale deed, through Court.

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The petitioner filed the E.P., in the year 2010. In the execution

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petition, he stated that though he offered to pay the balance of consideration of Rs.15,55,928/-, the 1^st respondent did not come forward the execute the sale deed, and that the amount is deposited into the Court on 07-10-2010. Accordingly, he prayed for execution of the decree. He further mentioned that he is entitled to recover a sum of Rs.45,334/-, as costs from the respondents. After entering appearance in the E.P., the 1^st respondent filed E.A.No.1 of 2012 with a prayer to dismiss the E.P. After referring to the factum of the suit being decreed and extracting the operative portion of the decree, the 1^st respondent, in his affidavit, filed in support of the E.A., stated as under:

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“6. It is further submitted that the DHR neither offered the balance sale consideration to the petitioner/JDR-1 nor deposited the same in the court within the stipulated period of two months from 25-09-2008 i.e., on or before 25-11-2008. The respondent/DHR has also not sought enlargement of time from this Hon’ble Court as such the conditions mentioned in the judgement are not fulfilled and i.e., reasons the judgement has become inoperative.

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7. It is further submitted that as appears from the record the DHR has paid certain amounts to the credit of OS No.404/2005 on the file of the XIV Addl Chief Judge, City Civil Court, Hyderabad on 07-10-2010 i.e., after the lapse of two years two months. The payment of amounts will not help the respondent/DHR as the decree is seized to have its effect and the same is barred by limitation.

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8. It is further submitted that in the suit for specific performance the ready and willingness of the party is paramount right from the entering into agreement of sale till the date of registration as such the respondent/DHR has pathetically failed to show his readiness and willingness as such pathetically failed to perform his part of contract as such is not entitled for any relief.

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9. It is further submitted that there is no executable decree in existence for the respondent/DHR to get the same executed by this Hon’ble Court.

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Hence it is prayed that this Hon’ble Court may be pleased to dismiss the E.P. with exemplary costs, in the

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interest of justice”.

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It is important to note that the 1^st respondent has invoked Sections 47 and 151 of C.P.C. In his counter-affidavit, the petitioner denied the said allegations and his version in this behalf was as under:

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“In pursuance of the decree holder approached the Judgment Debtor No.1 after obtaining the Certified Copy of the Decree who is the petitioner herein and shown the decree to him and insisted him to receive balance sale consideration amount of Rs.10,50,000/- together with interest amount as agreed the total amounting to Rs.13,94,381/- and register the sale deed as per the decree. But petitioner has refused to receive the amount and execute the sale deed in favour of this Respondent. The Respondent No.1 herein several times went to the petitioner and insisted him to receive balance sale consideration as mentioned above, but the petitioner did not chose to honour the decree and register the sale deed in favour of the Decree Holder. Thereby this Respondent got issued legal notice to the petitioner on 04-12-2008 to receive balance sale consideration amount and register the sale deed in favour of this Respondent. The said registered notice was not claimed by the petitioner. Therefore this respondent made several attempts to meet the petitioner to obtain register the sale deed from the petitioner. But efforts of this respondent are in vain. Vexed with the attitude of petitioner this respondent deposited the amount of Rs.15,55,928 in to Court on 07-10-2010. Therefore this Respondent filed E.P.132/2011 for execution of Sale deed in favour of this Respondent by the Hon’ble Court. Hence the execution petition is maintainable.”

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The Executing Court did not record any evidence as to the proof of the pleas raised by the respective parties. In its discussion, it has taken into account, the judgment in P. Ravi Prasad Goud v.

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T. Krishna^[1] , which is referable to Section 16-C of the Act. Another precedent, which was taken into account was, the one, in Suggula Venkata Subrahmanyam and others v. Desu Venkata Rama Rao

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(died) by Lrs^[2] . The ratio therein is in relation to enlargement of time stipulated by the Executing Court in a decree. Ultimately on the assumption that the default was on the part of the petitioner herein, in paying the balance of consideration to the

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1^st respondent within two months from the date of the decree, E.A.No. 1 of 2012 was allowed. As a result, the E.P. was dismissed. The finding of the trial Court in this behalf, reads,

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“As per the contents of said decree it is clear that the respondent herein (plaintiff in the above suit) has to pay balance sale consideration within two months and directed the petitioner herein has to register the sale deed, if the petitioner herein refused to receive the balance sale consideration with interest the plaintiff is at liberty to deposit the said amount into the Court and to obtain regular sale deed through Court. The respondent herein contended that several time he approached the petitioner herein and requested to receive balance sale consideration but the petitioner refused to receive the same. The stipulated period two month i.e., from 25.09.2008 to 25.11.2008. The respondent herein filed a cheque dated 04.12.2008 for an amount of Rs.13,94,381/- i.e., after lapse of two months. There is no documentary proof to show that he seek enlargement of time for paying the purchase money under Section 28(1) of the Act of 1963, without seeking extension of time the respondent herein filed this EP on 07.10.2001 i.e., after lapse of two years two months. As per the decision reported in 2010(5) ALD 807 the execution petition for obtaining specific performance is not maintainable. Accordingly, the point is answered.”

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The Executing Court was not clear, both as regards the facts and as to law. On facts, it did not take into account, the real purport of the decree. The relevant portion has already been extracted. The stipulation of two months was for the 1^st respondent to execute the decree. That stipulation, no doubt, is coupled with the right to receive

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the balance of consideration. There was nothing on record to indicate that he ever made any effort to collect or demand the balance of consideration from the petitioner, within that time. The plea of the petitioner that when he offered the amount, the respondents refused to receive; remained unrebutted. The 1^st respondent did not file any rejoinder to the counter-affidavit. As observed in the preceding paragraphs, the Executing Court did not record any evidence of the parties. Therefore, the finding recorded by the trial Court, in this behalf, cannot be sustained. When valuable rights accrued to a party, on account of the suit for specific performance being decreed, they cannot be taken away, on the basis of such an untenable finding.

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On the aspect of law, the Executing Court proceeded as though Section 28 of the Act gets attracted, though it did not mention in so many words. Firstly, the 1^st respondent himself did not invoke that provision. Secondly, the provision gets attracted only where, a) the Court, which passed the decree, directs the decree-holder to pay the purchase money (balance of consideration) within a period, stipulated by it, and b) the decree-holder failed to comply with the direction. It is then, and only then, that the Court can consider the feasibility of directing rescission of contract. In the instant case, the time stipulated by the trial Court in its decree was for the 1^st respondent, to execute the decree, and not directly for the petitioner to deposit the amount.

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There is nothing on record to disclose that the 1^st respondent has ever made any effort to receive the amount, stipulated in the decree. On the other hand, the plea of the petitioner that, when he offered to pay the amount, the 1^st respondent did not receive the same; remained unrebutted. The Court must ensure strict compliance with the conditions stipulated in a provision, which has the effect of nullifying a decree.

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Even where two views are possible on the facts of the case, the one, which would sustain the decree, must be adopted.

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Learned counsel for the respondents relied upon certain other precedents. They have no application to the facts of the case.

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For the foregoing reasons, the revisions are allowed and the orders under revisions are set aside. The Executing Court is directed to proceed with the execution of the decree.

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The miscellaneous petitions filed in these revisions shall also stand disposed of. There shall be no order as to costs.

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_______________________ L. NARASIMHA REDDY, J.

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Dt.01-09-2014.

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Note:

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LR copy to be marked. (B/O) KO

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[1] 2010 (6) ALD 47 [2] 2010 (5) ALD 807

K.S.Venkata Raman v. Prem Jeevan

Case brief

What is this about?

What did the court decide?

K.S.Venkata Raman v. Prem Jeevan

Case brief

What is this about?

What did the court decide?

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