JUDGMENT
Anoop V. Mohta, J.
1. This Chamber Summons relates to the time for making payment of the balance of the purchase price, in view of the order dated 23rd February, 2004, passed by this Court, whereby applicant’s offer was accepted and sale of the flat bearing No. B/21 at Sea-Gull Apartment, 4A, Bhulabhai Desai Road, Mumbai, was confirmed for an amount of Rs. 55,00,000/-, being the highest offer received on that date. The sale was conducted under the Rules and Conditions of the Bombay High Court (Original Side) Rules (for short “High Court Rules.”)
2. The applicant, in pursuance to the said order has already deposited Rs. 13,75,000/- being 25% of the aforesaid purchase price with the Court Receiver on 23rd February, 2004, and the sale of the said flat was confirmed on usual terms and conditions, which provided for payment of balance purchase price within four weeks from the date of confirmation of the sale by this Court. The case of the applicant herein is that he was expecting a large payment from one of his client by Friday, 20th March, 2004. However, the said commitment was not fulfilled by the said client. The applicant, therefore, was short of funds and was constrained to approach this Court for a short extension of time for a period of two weeks to deposit the balance purchase price in respect of the said flat.
3. On 22nd March, 2004, by way of a Praecipe, accordingly, application was moved at 2.45 p.m. On the same day, at 4.45 p.m., the counsel appearing for the plaintiff pointed out the urgency and accordingly, the matter was listed on 23rd March, 2004. The Defendant No. 1 appeared and objected and insisted that formal application for extension of time should be filed by the parties for grant of such extension. One Ms. Bhavna Bafna, an unsuccessful auction-purchaser, through her Advocate, also opposed the said application of the applicant.
4. The applicant, therefore, has taken out the present Chamber Summons dated 24th March, 2004, with supporting Affidavit. The case of the applicant, therefore, as averred, is that if extension of time is not granted, the Receiver, as per the procedure, would be at liberty to forfeit the amount, along with the earnest money deposited by the applicant and would re-sell the property. This would cause substantial loss and inconvenience. The delay in making or depositing the further payment has been caused by the events which were beyond the control and which were not anticipated by the applicant. No prejudice will be caused if time, as prayed, is granted and it will not be in the interest of anybody that the present sale, as confirmed, be set aside. The only loss that may be caused to Defendant No. 1, if delayed payment is made, is by way of loss of interest. In this background he submitted that the applicant is ready and willing to pay interest on the balance amount at such rate as this Hon’ble Court stipulates. The applicant also stated that the unsuccessful auction purchaser has no locus whatsoever in the present proceedings and is not in any manner concerned with the same and he, therefore, cannot oppose this prayer in the Chamber Summons.
5. The applicant has further made averments that he has made arrangement with his Bankers to extend the period for him to deposit the balance sale consideration of Rs. 41,25,000/- forthwith. Out of that, Rs. 10,00,000/- has already been deposited. Therefore, the balance amount remaining is Rs. 31,25,000/-, which he is ready and willing to deposit immediately, without any further delay. In this background, he submitted that his application for extension of time be allowed and time be extended for a period for ten days from 22nd March, 2004, or such other date, as this Hon’ble Court may deem fit.
6. Mr. M.P.S. Rao, appeared on behalf of the Defendant No. 1A to 1E and by Affidavit in Reply dated 29th March, 2004, opposed the Chamber Summons on the foundation that this Court has no jurisdiction to extend the time once time, as granted, has expired. By this Affidavit, Defendant No. 1A to 1E resisted the sufficient cause or any cause made out by the applicant for not making the payment within the stipulated time. In view of Clause 11 of the terms and contortions of the sale by the Court Receiver, High Court, Bombay, time is the essence of the contract, Clause 11 is reproduced as under:
“11. The Purchaser shall have to pay to the Court Receiver, High Court, Bombay by Demand Draft of Bank Pay Order the Balance of Purchase price within four weeks from the date of the sanction/confirmation of the sale by the Hon’ble High Court and shall take possession of the said Flat latest within two weeks from the date of such payments and in this respect, time shall be the essence of the contract.”
Therefore, as the applicant failed and neglected to make the payment within the stipulated time, there is no question of extension of time, as prayed.
7. Further reference is made to Clause 12 of the said Terms and Conditions, which is reproduced as under, whereby the Purchaser has to make the payment of the balance amount of the purchase money in the manner and within the time specified by the Court Receiver, failing which, Court Receiver has liberty to forfeit the deposit of the money along with the earnest money and proceed with re-sale of the said immovable property by public auction. Clause 12 reads thus :
“12. If the Purchaser does not pay the balance of the Purchase money in the manner and within the time specified by the Court Receiver or in other respects fails to perform these conditions or any of them, the Court Receiver shall be at liberty to forfeit the deposit money along with the earnest money and any further amount and to proceed to re-sell the said immovable property by public auction and subject to such conditions and in such manner in all respects as the Court Receiver shall think it fit and proper and the deficiency in price, if any, occasioned by such re-sale and the costs thereof shall be made good by the defaulting purchaser with interest on the amount of deficiency at the rate of 18% per annum from the expiration of one month from the date of the aforesaid sanction of Sale till payment and in case of non-payment of the whole or the balance of such, the same shall be recoverable by the Court Receiver from the defaulting purchaser as and by way of liquidated damages while any profit on such re-sale shall not belong to such defaulting purchaser.”
8. Mr. M.P.S. Rao, learned counsel, further relied on Order XXI, Rules 85 and 86 and contended that these provisions are mandatory and, therefore, if the applicant failed to deposit the money within 30 days and/or within the stipulated time, his deposit has to be forfeited and there was no question of granting any extension now. He relied on , Rao Mahmood Ahmed Khan v. Shree Ranbir Singh and Ors. and , Balaram s/o Bhasa Ram v. Ram Singh and Ors. in reference to Order XXI, Rules 85 and 90 and reiterated again that failure to deposit full amount of sale price within the time stipulated under Rule 85, such a sale becomes a nullity and re-sale should follow. He further contended that Section 148 of the Civil Procedure Code may not be applicable when the time is fixed for doing, an act prescribed or allowed by the Code. There is no question of exercising inherent power under Section 151 in view of the special provisions which are available under Order XXI of the Civil Procedure Code, which prescribes the time within which the balance amount has to be paid. Both the Apex Court’s decisions are distinguishable on facts, as well as, in law, and circumstance of the present case. Those sales were not governed by the Bombay High Court Rules in question.
9. Mr. Kadam, learned counsel, referred and relied upon the judgment of our High Court in the case of 2004(1) Mh.L.J. 532, Iridium India Telecom Ltd. Bombay v. Motorola Inc. to support his submission that as sale conditions are governed by the High Court Rules, such provisions will prevail. It is declared, considering the newly amended provisions of the Civil Procedure Code, that in case of conflict of any provisions, the High Court Rules published under the provisions of Section 122 of the Civil Procedure Code should prevail. The relevant paragraph is as under :
“Mr. Chinoy appearing for the respondent submitted that the application for extension of time under Section 148 was preferred under misconception that Order VIII, Rule 1 is applicable to Original Side. The procedure on the Original Side is governed by the Original Side Rules and not by the Code of Civil Procedure to the extent there are provisions in the Original Side Rules. He drew our attention to the relevant rules for filing a written statement. Rule 88 provides that in suits where the Written Statement is called for by the writ of summons, the defendant shall file an appearance in person or a Vakalatnama, as the case may, within 12 weeks from the service of the Writ of Summons. Further Rule 89 provides that if the defendant commits default in filing his appearance in person or a Vakalatnama and a written statement as provided in Rule 74, the Judge in Chamber may, when the suit appears on board for directions, direct that the suit be set down on board for disposal as an undefended suit on the same day or on such other day as he may deem fit. Rule 265 which is material for the present case, reads as follows:
“The Court or the Judge in Chamber shall have power to enlarge or abridge the time appointed by these Rules or fixed by any order for doing any act, or taking any proceedings, upon such terms (if any), as the justice of the case may require and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allotted.”
The power to extent time under Rule 265 is very wide. The Rule does not proceed that time can be extended only before the expiry of the prescribed time. The only limitation is such as would exist when a Court exercises the judicial direction.
7. The Original Side Rules are thus clearly inconsistent with the provisions of Order VIII, Rule 1. The question is whether the said Rules would prevail over Order VIII, Rule 1. This question, in our opinion, is concluded by Section 129 of the Code which reads as follows :
“129. Power of Chartered High Courts to make rules as to their original civil procedure.– Notwithstanding anything in this Code, any High Court, not being the Court of a Judicial Commissioner, may make such rules not inconsistent with the Letters Patent or order or other law establishing it, to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of the Code,”
9. We may also refer to the observations made by the Division Bench in R.M.B. v. LIC India; , where Mody J., speaking for the Bench observed :
“Now it must be remembered that under Section 129 of the Code of Civil Procedure this High Court is entitled to make rules to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit and that this High Court has as a matter of fact made the said Original Side Rules. The procedure on the original side of this Court is governed by the Original Side Rules and not by the provisions of the Code of Civil Procedure to the extent that there are provisions in the Original Side Rules.”
10. In Printpack Machinery Ltd. v. Jay Kay Paper Congeters, AIR 1979 Delhi 219 the Full Bench of the Delhi High Court held that Order 37 as amended by the Code of Civil Procedure (Amendment) Act, 1976 will not apply and the Original Side Rules continue to prevail.”
9A. The other High Court Rule 547, “Sale of Immovable Property” extract is also relevant, apart from the conditional Clause 8 of Form 68 of Rule 521 (condition of sale of immovable property):
“547(ii) “The Judge in Chambers may, for sufficient cause, extend the time for payment on such conditions as to payment of interest or otherwise as the Judge may think fit.”
Form 68, Clause 8.
“8. ……………………….. within 30 days from the date of the sale or within such further time as may be allowed by the Judge in Chambers…………”
In totality, and as per general Scheme of the High Court Rules, there is no bar in extending the prescribed time to deposit the balance amount.
10. The undisputed position is that the sale proceedings have been initiated under the provisions of the High Court Rules. The terms and conditions of the sale by the Court Receiver, High Court, Bombay, are applicable to the sale in question also. The relevant High Court Rules 521, clauses 8, 111 and 12, itself provide that the Court has power to extend the lime. Rule 265 of the High Court Rules also gives power to the Court to extend or abridge the time, if necessary or if sufficient reason or cause is made out. The provisions of Section 148 of the Civil Procedure Code read with Section 151, cannot be overlooked at this stage. Even otherwise, in the facts and circumstances of the case and in view of the fact that the governing Rules themselves provide power and authority to the Court to extend the time even though it is prescribed, that time shall be the essence of the contract. I see no reason not to extend the time in the present case.
11. After considering the above provisions, as well as, the averments made in the Affidavit in support of the Chamber Summons. The technicalities, as argued and raised by the Defendant No. 1, cannot be accepted, specially when the confirmation of the sale is in his interest also. When the party is ready to pay the loss of interest, if any, on the balance amount, there is no reason that Defendant, in such circumstances, should oppose the present Chamber Summons. Ms. Bhavna Bafna, as pointed out earlier, has no locus standi to oppose such application. He has no concern in this matter now, once the Court has confirmed the sale in favour of the applicant.
12. The matter was heard and after hearing both the parties, the Advocate for the applicant has also filed Praecipe dated 6th April, 2004, and deposited two Pay Orders aggregating to Rs. 41,25,000/- being the balance 75% of the purchase price. In view of this fact and circumstances of the case, as applicant has deposited the money in Court, there is no reason now to postpone the confirmation and/or not to grant extension of time, as prayed.
13. The Chamber Summons, therefore, is allowed in terms of prayer clauses (a) and (b).
14. Chamber Summons is disposed of accordingly.
Court Receiver and all concerned parties to act on an ordinary copy of this order, duly authenticated by the Chamber Registrar of this Court.