IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1030 of 2006()
1. JACOB, AGED 41 YEARS,
... Petitioner
Vs
1. SHUHARA, AGED 60 YEARS,
... Respondent
2. RASIYA, AGED 38 YEARS,
3. NADEERA, AGED 36 YEARS,
4. SAJILA, AGED 34 YEARS,
5. IQBAL, AGED 32 YEARS,
6. MAJITHA, AGED 30 YEARS,
7. JAMIYA, AGED 27 YEARS,
8. ISAHAK, AGED 29 YEARS,
For Petitioner :SRISHIJU VARGHEESE
For Respondent :SRI.SIRAJ KAROLY
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :04/01/2008
O R D E R
M.N.KRISHNAN,J.
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C.R.P.No.1030 OF 2006-B
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DATED THIS THE 4TH DAY OF JANUARY, 2008
O R D E R
This revision is preferred against the order of the Munsiff,
Aluva in I.A.No.1561/05 in O.S.No.423/97. It is an application filed
by the legal representatives of the second defendant for rescission
of the contract under section 28(1) of the Specific Relief Act. The
decree for specific performance was passed on 26th July, 1997
whereby the court directed the defendants to measure the plaint
schedule property and demarcate the boundaries and to execute the
sale deed in favour of the plaintiffs after receipt of the balance sale
consideration and to put the plaintiff in possession of the plaint
schedule property within a period of two months from the date of
the decree, failing which the plaintiff is entitled to deposit balance
sale consideration of Rs.20,000/= before the court and get the
plaint schedule property measured and boundaries fixed and the
sale deed executed by court and to obtain possession of the plaint
schedule property or in other words the decree directs the
defendants to execute the document on receipt of the balance sale
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consideration of Rs.20,000/= and on failure of the defendants to do
the same , the plaintiff can deposit the balance sale consideration
and request the court to execute the document. This decree is
passed as early as on 26.7.1997. There is no dispute to the fact
that the amount was deposited before the treasury by the plaintiff
only on 21.12.2004. Though he moved an application for condoning
the delay in making the deposit, for reasons best known to him, the
petition was not-pressed. As per section 28(1) of the Specific Relief
Act, when the person bound to deposit the amount is not depositing
it within the time fixed or the extended time as the court may
grant, then the defendant in the suit is entitled to apply for
rescission of contract. Now the question is whether the defendants
are entitled to have a rescission of the contract on non-deposit of
the amount by the plaintiff of the balance consideration and the
case laws are sufficient to hold that the ingredients to be proved
are: (1) default and (2) it must be wilful. If these ingredients are
proved and there is no explanation forthcoming, then certainly the
defendants in the suit are entitled to have a rescission of the
contract. As stated by me earlier, on the factual matrix, the amount
has been deposited before the court almost after 7 years and 5
C.R.P.No.1030/06-B
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months from the date of decree. It is true that the decree does not
provide a fixed time to the plaintiff to deposit the amount. But it
has to be borne in mind that the court has worded the decree in
such a way that the time given for the defendants to perform the
contract is two months and on failure to do so, the plaintiff can
deposit the consideration and apply to the court for execution of the
document. So, one cannot hold or one cannot interpret that there is
no time limit at all for making the deposit.
2. The learned counsel for the revision petitioner argues
before me that mere non-deposit is not a ground to rescind the
contract unless it is proved to be wilful and as there is no express
time prescribed in the decree for deposit of the amount, it has to be
held that there is no wilful default in depositing the amount as
ordered by the court. The learned counsel has also cited before me
various decisions of the Apex Court and of this court for
consideration. The learned counsel referred to the decision of the
Apex Court reported in Kumar Dhirendra Mullick and others v.
Tivoli Park Apartments (P) Ltd. 2005 (9) SCC 262 . A
reference to para.24 of the said decision would reveal that the trial
court decreed the suit whereby 90 days’ time was granted to the
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defendants to execute, register and deliver the lease. In para.25
the facts referred to would reveal that it was only a time fixed for
non-approaching the court for execution before the period of 90
days. So far as the present case is concerned, here two months’
time is granted and there is a further specific recital in the decree
itself that on failure to pay the amount, the plaintiff can approach
the court for executing the decree by depositing the balance sale
consideration. Then the learned counsel also referred to para.32 of
the said judgment of the Apex Court wherein a decision of this court
rendered in Ouseph v.Devassy (2001(1) KLJ 59) has been
referred to. It was a case where the plaintiff, namely, the purchaser
was put in possession of the property and he continued to be in
possession for 18 years and a decree for specific performance was
passed and a petition to rescind the contract was filed after 15 years
of the passing of the decree. In such a situation, this court held
that wilful default or positive refusal to complete the contract is not
proved.
3. The other decision cited is reported in Anandavally v.
Natesan (1992 (2) KLT 833). It was held in that decision that
the court has the power to rescind the contract and it can be done
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when there is wilful default on the part of the decree holder. The
learned counsel also referred to a decision of the Division Bench of
this court reported in Joseph George v. Chacko Thomas (1992
(1) KLT 6) . In that case the court held that failure to deposit the
amount need not result in rescission of the contract. So, an
analysis of the decision rendered by the courts would reveal that
what is to be considered while passing an order under section 28(1)
is whether there has been wilful default on the part of the decree
holder. A wilful default is not a thing which can be directly
perceived or proved. It depends upon bundle of facts and
circumstances. So, it is the analysis of those bundle of facts and
circumstances that will have the baring in arriving at a decision.
Before entering into a finding on that, it is only profitable to refer to
a decision of the Apex Court reported in V.S.Palanichamy Chettiar
Firm v. C.Alagappan and another (AIR 1999 SC 918). It was a
case where a prayer was made to extend the time for deposit after
five years after the decree. But the Apex Court held:
” Held under Art.54 of the Limitation Act,
3 years period is prescribed for filing the suit
for specific performance of contract of sale
from the date of the agreement or when the
cause of action arises. Merely because a suit
is filed within the prescribed period of
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limitation does not absolve the vendee-
plaintiff from showing as to whether he was
ready and willing to perform his part of
agreement and if the non-performance was
that on account of any obstacle put by the
vendor or otherwise. Provisions to grant
specific performance of an agreement are
quite stringent. Equitable consideration
come into play. Court has to see all the
attendant circumstances including if the
vendee has conducted himself in a
reasonable manner under the contract of
sale. It is not the case of the respondent-
decree holder that on account of any fault on
the part of the vendor -judgment-debtor, the
amount could not be deposited as per the
decree. That being the position, if now time
is granted, that would be going beyond the
period of limitation prescribed for filing of the
suit for specific performance of the
agreement though this provision may not be
strictly applicable. It is nevertheless an
important circumstance to be considered by
the Court. That apart, no explanation
whatsoever is coming from the decree-
holder-respondents as to why they did not
pay the balance amount of consideration as
per the decree. Equity demands that
discretion be not exercised in favour of the
decree holder-respondents and no extension
of time be granted to them to comply with
the decree.”
4. On an earlier occasion the decree holder in the revision
petition came up before this court and this court while disposing of
W.P.(C)No.7892/06 held that there must be an adjudication on the
matter after giving opportunity to both sides to adduce evidence, if
C.R.P.No.1030/06-B
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any. The court also directed that the rescission petition will be
decided first, before passing orders on the execution of the decree.
A perusal of the order passed by the learned Munsiff would reveal
that the decree holder did not mount box at all to give any
explanation. There is no valid grounds in the pleading, even for
explaining the delay caused. The stand taken is that there is no
time limit fixed for making the payment and therefore the decree
holder can do it at any time. I feel such an explanation cannot be
accepted and the decree is to be read as a whole and not in isolation
and there is indication in the decree itself how it could be done.
Therefore the said explanation is totally unsatisfactory. Even if it is
taken for granted that there is no time limit fixed in the decree in a
specific performance suit, the plaintiff who always must be ready
and willing to perform his part of the contract should not delay
making the payment which is due to the other side and as stated in
the 1999 Apex Court decision it has to be interpreted in a stringent
manner. The learned counsel for the revision petitioner submits
before me that the stand taken by the judgment debtors in the
execution petition is regarding the non-executability of the decree
and so one has to hold that the present petition filed by them is
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without any bona fides. When admitted facts reveal that for a
period of seven years and five months the decree holder has kept
mum and he has not tendered any reasonable explanation to show
that he was prevented from depositing the amount, then certainly
the sum total of the same would certainly amount to wilful default
which is a sine qua non for granting rescission under section 28(1)
of the Specific Relief Act. Therefore, from the foregoing discussions
and the materials available, I concur with the findings of the court
below and I also hold that there are materials available to hold that
there has been non-payment of the amount on account of the wilful
default which permits rescission of the contract under section 28(1)
of the Specific Relief Act. Therefore the C.R.P. lacks merits and it is
dismissed without costs. The Munsiff is directed to pass orders as
stipulated in section 28(2) of the Specific Relief Act with respect to
the money paid by the decree holder as advance.
M.N.KRISHNAN, JUDGE.
dsn