The Hon'ble Supreme Court in Sardar Mohar Singh
(supra) has held that under provisions of Section 28(1) of the said
Act, after the decree for specific performance is passed, the Court
does not lose its jurisdiction nor does it become functus officio. Till
the period the sale deed is executed in execution of the decree, the
trial Court retains its powers and jurisdiction to deal with the
decree. The Court has the power to enlarge the time despite an
application for rescission of the decree being filed by the judgment
debtor. The prayer for extension of time is distinct from a prayer
for condonation of delay. In the aforesaid case, the delay of about
seven and half years was extended for complying with the decree
of specific performance.
In the light of the aforesaid legal position, if the facts
of the present case are considered, it can be seen that the
respondents had applied for certified copy on 7-12-012. The same
was received on 13-4-2012. Immediately thereafter on 19-4-2012,
the application for enlargement of time came to be moved. While
considering this application, the trial Court found that though the
said application was filed under Section 148 of the Code, it would
be treated as an application seeking extension of time to deposit
the balance consideration. The application was treated as one
filed under Section 28 of the said Act. In para 21 of its order, the
trial Court has found the reasons mentioned therein to be
justifiable, bonafide and convincing. If the application for
extension of time to deposit balance consideration is to be treated
differently from an application for condontation of delay and if
within a short period from receiving certified copy, such
application for extension of time had been moved, I do not find
that by accepting the prayer for extension of time the trial Court
acted in any manner contrary to law. The trial Court not having
become functus officio it acted within its jurisdiction in allowing
the application moved by the respondents.
10. Though the learned Counsel for the petitioner is
justified in submitting that the knowledge of the decree ought to
be attributed to the parties on the day the judgment is
pronounced, in the facts of the present case when the time of two
months was granted to make the balance payment and the
application for extension was moved within a period of a month
and half thereafter, it cannot be said that in this situation there
was any deliberate delay on the part of the respondents in seeking
extension of time to deposit the balance consideration. The
discretion in that regard was rightly exercised by the trial Court
especially when it did not lose seisin of the matter. The judgment
of the learned Single Judge in Bhujangrao Ganpati (supra) cannot
be relied upon in the light of the subsequent judgment of the
Hon'ble Supreme Court in Sardar Mohar Singh (supra). The
judgments relied upon by the learned Senior Counsel for the
respondents support his submissions.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6716 OF 2015
M/s Armor's Developers Pvt. Ltd., V Smt. Asha W/o Rajendra Paigwar,
CORAM: A.S. CHANDURKAR, J.
DATED: 11th AUGUST, 2016.
Citation:2017(2) MHLJ 324
1. In view of notice for final disposal, the learned Counsel
for the parties have been heard at length.
2. The challenge in the present writ petition is to the
order dated 4-12-2015 passed by the trial Court whereby the
respondents herein were permitted to deposit the balance amount
of consideration in terms of the decree for specific performance
passed in Special Civil Suit No.706/2003 by extending the period
of such deposit by one month.
3. Brief facts giving rise to the present writ petition are
that the respondents are the original plaintiffs who had filed suit
for specific performance of agreement dated 1-9-1997. The trial
Court on 6-12-012 decreed the suit and granted relief of specific
performance. The respondents were directed to deposit the
balance consideration of Rs.96,000/ within a period of two
months from the said judgment. The petitioners were consequently
directed to execute the sale deed of plot no.13 within a period of
two months of the said judgment. It was further stipulated that in
case the respondents failed to deposit the amount of balance
consideration within the stipulated time, the suit shall be treated
as dismissed.
4. The respondents on 19-4-2012 filed an application
under Section 148 of the Code of Civil Procedure, 1908 (for short,
the Code) seeking enlargement of time to deposit the balance
consideration. It was stated in the application that the Counsel
representing the respondents fell ill after the judgment was
delivered. An application for grant of certified copy was made on
712012 and the same was received on 1342012. After receiving
the certified copy, the respondents got knowledge about the
direction to deposit the balance consideration within a period of
two months from the date of the order. Hence, it was prayed that
the respondents be permitted to deposit the balance consideration.
This application was opposed by the petitioners denying the
averments made therein. It was stated that despite knowledge of
the judgment, the balance consideration had not been deposited.
The petitioners then moved a separate application
under Section 28 of the Specific Relief Act, 1963 (for short, the
said Act) on 2892012. In the said application, it was stated that
as there was default on the part of the decree holder in complying
with the decree for specific performance, the contract was liable to
be rescinded. This application was opposed by the respondents by
filing reply.
5. The trial Court decided both the applications together
and by the impugned order dated 4122015 allowed the
application moved by the respondents and extended the time to
deposit the balance consideration by one month. It rejected the
application moved by the petitioners by treating the same as
premature. Being aggrieved, the original defendants have
challenged the aforesaid order.
6. Shri Anjan De, the learned Counsel for the petitioners
submitted that the trial Court was not justified in allowing the
application moved by the respondents and treating the application
moved by the petitioners as premature. He submitted that the
application moved by the respondents under Section 148 of the
Code was not maintainable inasmuch as the time prescribed under
the provisions of Section 148 of the Code permitted enlargement
of time not exceeding thirty days before expiry of the actual period
of deposit. According to him, as the respondents moved the said
application after the expiry of the period of two months, the same
was not maintainable. He then submitted that though the
provisions of Section 148 of the Code were not applicable, the said
application was entertained by the trial Court by treating the same
as being filed under Section 28 of the said Act. Such course
without due notice to the petitioners was not maintainable.
According to him, even otherwise, the reasons assigned by the
respondents in their application were not sufficient to justify
extension of time. Without leading any cogent evidence, the
statements made in the application were sought to be justified. He
urged that as the judgment was delivered on 6-1-2012, it was
deemed that the parties had full knowledge about the operative
part of the judgment in view of provisions of Order XX Rules 1 and
2 of the Code.
7. It was then urged that the decree passed by the trial
Court was self operative and on the failure of the respondents to
deposit the balance consideration within a period of two months,
the suit was liable to be dismissed. Considering this stipulation in
the decree, there was no question of extension of time to deposit
the balance consideration as the Court had become functus officio.
In support of his submission, the learned Counsel placed reliance
upon the judgment of learned Single judge in Bhujangrao Ganpati
Vs. Sheshrao Rajaram 1973 Mh. L. J. 1034. It was further
submitted that in the subsequent decision in Vatsala Shankar
Bansole Vs. Sambhaji Nanasaheb Khandare AIR 2003 Bombay 57, it
has been observed that a decision in Bhaujangrao Ganpati (supra)
was not good law, but this conclusion was debatable. He further
submitted that as the respondents had not led evidence, their
pleadings could not act as a substitute for evidence.
As regards the order of the trial Court treating the
application filed by the petitioners under Section 28 of the said Act
as premature, it was submitted that considering the nature of the
decree the application could not be treated as premature. The
provisions of Section 28 of the said Act were clear and on failure
on the part of the plaintiffs to deposit the balance consideration,
the contract was liable to be rescinded. The said application ought
to have been allowed by the trial Court.
8. Shri A. S. Jaiswal, the learned Senior Counsel for the
respondents supported the impugned order. According to him, the
application seeking extension of time to deposit the the balance
consideration was moved within a short period after completion of
two months as permitted by the trial Court. He submitted that the
trial Court was justified in invoking the provisions of Section 151
of the Code while treating the application filed by the respondents
under Section 28 of the said Act for extending the time to deposit
the balance consideration. According to him, under Section 28 of
the said Act, a discretion was vested with the trial Court to extend
the time to deposit the balance consideration. After considering
the reasons mentioned in the application, this time had been
extended. He submitted that the certified copy though had been
applied immediately on 712012, the same was received on 134
2012. The application in question was moved shortly thereafter on
1942012. Considering the short period within which the said
application was moved, the trial Court was justified in extending
the period for depositing the balance consideration.
In so far as the application moved by the petitioners
under Section 28 of the said Act is concerned, it was urged that the
petitioners had filed a reply to the application for enlargement of
time on 2892012. On the same day, the petitioners had filed the
application under Section 28 of the said Act. Till the prayer for
extension of time was not considered by the trial Court, moving of
the application under Section 28 of the said Act was premature.
He, therefore, submitted that this order passed by the trial Court
was also justified in the facts of the case. In support of his
submissions the learned Senior Counsel placed reliance upon the
following judgments:
[1] Vatsala Shankar Bansole Vs. Sambhaji Nanasaheb
Khandare and another 2002 (6) Bom. C. R. 126.
[2] Hari Ramji Vs. Mahadu Tekale 2006(6) Mh. L. J. 110.
[3] Gopal Samarth Vs. Mukundrao Gedam, 2012 (2)
Mh.L.J. 602.
[4] Sardar Mohar Singh Vs. Mangilal (1997) 9 SCC 217.
[5] Salem Advocate Bar Association T. N. Vs. Union of India
(2005) 6 SCC 344.
9. I have heard the respective Counsel for the parties at
length and I have given due consideration to their submissions.
The facts narrated above indicate that as per the decree passed on
6-12-012, the respondents were required to deposit the balance
amount of consideration within a period of two months thereafter.
The period of two months came to an end on 5-3-2012. The
application for enlargement of time was moved on 1942012
which is about a month and half after expiry of period of the two
months. The Hon'ble Supreme Court in Sardar Mohar Singh
(supra) has held that under provisions of Section 28(1) of the said
Act, after the decree for specific performance is passed, the Court
does not lose its jurisdiction nor does it become functus officio. Till
the period the sale deed is executed in execution of the decree, the
trial Court retains its powers and jurisdiction to deal with the
decree. The Court has the power to enlarge the time despite an
application for rescission of the decree being filed by the judgment
debtor. The prayer for extension of time is distinct from a prayer
for condonation of delay. In the aforesaid case, the delay of about
seven and half years was extended for complying with the decree
of specific performance.
In the light of the aforesaid legal position, if the facts
of the present case are considered, it can be seen that the
respondents had applied for certified copy on 7-12-012. The same
was received on 13-4-2012. Immediately thereafter on 19-4-2012,
the application for enlargement of time came to be moved. While
considering this application, the trial Court found that though the
said application was filed under Section 148 of the Code, it would
be treated as an application seeking extension of time to deposit
the balance consideration. The application was treated as one
filed under Section 28 of the said Act. In para 21 of its order, the
trial Court has found the reasons mentioned therein to be
justifiable, bonafide and convincing. If the application for
extension of time to deposit balance consideration is to be treated
differently from an application for condontation of delay and if
within a short period from receiving certified copy, such
application for extension of time had been moved, I do not find
that by accepting the prayer for extension of time the trial Court
acted in any manner contrary to law. The trial Court not having
become functus officio it acted within its jurisdiction in allowing
the application moved by the respondents.
10. Though the learned Counsel for the petitioner is
justified in submitting that the knowledge of the decree ought to
be attributed to the parties on the day the judgment is
pronounced, in the facts of the present case when the time of two
months was granted to make the balance payment and the
application for extension was moved within a period of a month
and half thereafter, it cannot be said that in this situation there
was any deliberate delay on the part of the respondents in seeking
extension of time to deposit the balance consideration. The
discretion in that regard was rightly exercised by the trial Court
especially when it did not lose seisin of the matter. The judgment
of the learned Single Judge in Bhujangrao Ganpati (supra) cannot
be relied upon in the light of the subsequent judgment of the
Hon'ble Supreme Court in Sardar Mohar Singh (supra). The
judgments relied upon by the learned Senior Counsel for the
respondents support his submissions.
11. As regards the order passed by the trial Court treating
the application under Section 28 of the said Act to be premature,
this conclusion of the trial Court is also justified. The application
for extension of time was moved on 19-4-2012 while the
application under Section 28 of the said Act was moved on
28-9-2012. Unless the prayer for enlargement of time was
decided, there was no question of considering the prayer for
rescinding the contract. Once the prayer for extension of time was
granted, it is obvious that the application moved under Section 28
of the said Act would have to be treated as having been filed
prematurely.
12. As a result of the aforesaid discussion, I do not find
any case to interfere in writ jurisdiction. There being no
jurisdictional error committed by the trial Court, the writ petition
is liable to be dismissed. The same is accordingly dismissed with
no order as to costs.
Print Page
(supra) has held that under provisions of Section 28(1) of the said
Act, after the decree for specific performance is passed, the Court
does not lose its jurisdiction nor does it become functus officio. Till
the period the sale deed is executed in execution of the decree, the
trial Court retains its powers and jurisdiction to deal with the
decree. The Court has the power to enlarge the time despite an
application for rescission of the decree being filed by the judgment
debtor. The prayer for extension of time is distinct from a prayer
for condonation of delay. In the aforesaid case, the delay of about
seven and half years was extended for complying with the decree
of specific performance.
In the light of the aforesaid legal position, if the facts
of the present case are considered, it can be seen that the
respondents had applied for certified copy on 7-12-012. The same
was received on 13-4-2012. Immediately thereafter on 19-4-2012,
the application for enlargement of time came to be moved. While
considering this application, the trial Court found that though the
said application was filed under Section 148 of the Code, it would
be treated as an application seeking extension of time to deposit
the balance consideration. The application was treated as one
filed under Section 28 of the said Act. In para 21 of its order, the
trial Court has found the reasons mentioned therein to be
justifiable, bonafide and convincing. If the application for
extension of time to deposit balance consideration is to be treated
differently from an application for condontation of delay and if
within a short period from receiving certified copy, such
application for extension of time had been moved, I do not find
that by accepting the prayer for extension of time the trial Court
acted in any manner contrary to law. The trial Court not having
become functus officio it acted within its jurisdiction in allowing
the application moved by the respondents.
10. Though the learned Counsel for the petitioner is
justified in submitting that the knowledge of the decree ought to
be attributed to the parties on the day the judgment is
pronounced, in the facts of the present case when the time of two
months was granted to make the balance payment and the
application for extension was moved within a period of a month
and half thereafter, it cannot be said that in this situation there
was any deliberate delay on the part of the respondents in seeking
extension of time to deposit the balance consideration. The
discretion in that regard was rightly exercised by the trial Court
especially when it did not lose seisin of the matter. The judgment
of the learned Single Judge in Bhujangrao Ganpati (supra) cannot
be relied upon in the light of the subsequent judgment of the
Hon'ble Supreme Court in Sardar Mohar Singh (supra). The
judgments relied upon by the learned Senior Counsel for the
respondents support his submissions.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6716 OF 2015
M/s Armor's Developers Pvt. Ltd., V Smt. Asha W/o Rajendra Paigwar,
CORAM: A.S. CHANDURKAR, J.
DATED: 11th AUGUST, 2016.
Citation:2017(2) MHLJ 324
1. In view of notice for final disposal, the learned Counsel
for the parties have been heard at length.
2. The challenge in the present writ petition is to the
order dated 4-12-2015 passed by the trial Court whereby the
respondents herein were permitted to deposit the balance amount
of consideration in terms of the decree for specific performance
passed in Special Civil Suit No.706/2003 by extending the period
of such deposit by one month.
3. Brief facts giving rise to the present writ petition are
that the respondents are the original plaintiffs who had filed suit
for specific performance of agreement dated 1-9-1997. The trial
Court on 6-12-012 decreed the suit and granted relief of specific
performance. The respondents were directed to deposit the
balance consideration of Rs.96,000/ within a period of two
months from the said judgment. The petitioners were consequently
directed to execute the sale deed of plot no.13 within a period of
two months of the said judgment. It was further stipulated that in
case the respondents failed to deposit the amount of balance
consideration within the stipulated time, the suit shall be treated
as dismissed.
4. The respondents on 19-4-2012 filed an application
under Section 148 of the Code of Civil Procedure, 1908 (for short,
the Code) seeking enlargement of time to deposit the balance
consideration. It was stated in the application that the Counsel
representing the respondents fell ill after the judgment was
delivered. An application for grant of certified copy was made on
712012 and the same was received on 1342012. After receiving
the certified copy, the respondents got knowledge about the
direction to deposit the balance consideration within a period of
two months from the date of the order. Hence, it was prayed that
the respondents be permitted to deposit the balance consideration.
This application was opposed by the petitioners denying the
averments made therein. It was stated that despite knowledge of
the judgment, the balance consideration had not been deposited.
The petitioners then moved a separate application
under Section 28 of the Specific Relief Act, 1963 (for short, the
said Act) on 2892012. In the said application, it was stated that
as there was default on the part of the decree holder in complying
with the decree for specific performance, the contract was liable to
be rescinded. This application was opposed by the respondents by
filing reply.
5. The trial Court decided both the applications together
and by the impugned order dated 4122015 allowed the
application moved by the respondents and extended the time to
deposit the balance consideration by one month. It rejected the
application moved by the petitioners by treating the same as
premature. Being aggrieved, the original defendants have
challenged the aforesaid order.
6. Shri Anjan De, the learned Counsel for the petitioners
submitted that the trial Court was not justified in allowing the
application moved by the respondents and treating the application
moved by the petitioners as premature. He submitted that the
application moved by the respondents under Section 148 of the
Code was not maintainable inasmuch as the time prescribed under
the provisions of Section 148 of the Code permitted enlargement
of time not exceeding thirty days before expiry of the actual period
of deposit. According to him, as the respondents moved the said
application after the expiry of the period of two months, the same
was not maintainable. He then submitted that though the
provisions of Section 148 of the Code were not applicable, the said
application was entertained by the trial Court by treating the same
as being filed under Section 28 of the said Act. Such course
without due notice to the petitioners was not maintainable.
According to him, even otherwise, the reasons assigned by the
respondents in their application were not sufficient to justify
extension of time. Without leading any cogent evidence, the
statements made in the application were sought to be justified. He
urged that as the judgment was delivered on 6-1-2012, it was
deemed that the parties had full knowledge about the operative
part of the judgment in view of provisions of Order XX Rules 1 and
2 of the Code.
7. It was then urged that the decree passed by the trial
Court was self operative and on the failure of the respondents to
deposit the balance consideration within a period of two months,
the suit was liable to be dismissed. Considering this stipulation in
the decree, there was no question of extension of time to deposit
the balance consideration as the Court had become functus officio.
In support of his submission, the learned Counsel placed reliance
upon the judgment of learned Single judge in Bhujangrao Ganpati
Vs. Sheshrao Rajaram 1973 Mh. L. J. 1034. It was further
submitted that in the subsequent decision in Vatsala Shankar
Bansole Vs. Sambhaji Nanasaheb Khandare AIR 2003 Bombay 57, it
has been observed that a decision in Bhaujangrao Ganpati (supra)
was not good law, but this conclusion was debatable. He further
submitted that as the respondents had not led evidence, their
pleadings could not act as a substitute for evidence.
As regards the order of the trial Court treating the
application filed by the petitioners under Section 28 of the said Act
as premature, it was submitted that considering the nature of the
decree the application could not be treated as premature. The
provisions of Section 28 of the said Act were clear and on failure
on the part of the plaintiffs to deposit the balance consideration,
the contract was liable to be rescinded. The said application ought
to have been allowed by the trial Court.
8. Shri A. S. Jaiswal, the learned Senior Counsel for the
respondents supported the impugned order. According to him, the
application seeking extension of time to deposit the the balance
consideration was moved within a short period after completion of
two months as permitted by the trial Court. He submitted that the
trial Court was justified in invoking the provisions of Section 151
of the Code while treating the application filed by the respondents
under Section 28 of the said Act for extending the time to deposit
the balance consideration. According to him, under Section 28 of
the said Act, a discretion was vested with the trial Court to extend
the time to deposit the balance consideration. After considering
the reasons mentioned in the application, this time had been
extended. He submitted that the certified copy though had been
applied immediately on 712012, the same was received on 134
2012. The application in question was moved shortly thereafter on
1942012. Considering the short period within which the said
application was moved, the trial Court was justified in extending
the period for depositing the balance consideration.
In so far as the application moved by the petitioners
under Section 28 of the said Act is concerned, it was urged that the
petitioners had filed a reply to the application for enlargement of
time on 2892012. On the same day, the petitioners had filed the
application under Section 28 of the said Act. Till the prayer for
extension of time was not considered by the trial Court, moving of
the application under Section 28 of the said Act was premature.
He, therefore, submitted that this order passed by the trial Court
was also justified in the facts of the case. In support of his
submissions the learned Senior Counsel placed reliance upon the
following judgments:
[1] Vatsala Shankar Bansole Vs. Sambhaji Nanasaheb
Khandare and another 2002 (6) Bom. C. R. 126.
[2] Hari Ramji Vs. Mahadu Tekale 2006(6) Mh. L. J. 110.
[3] Gopal Samarth Vs. Mukundrao Gedam, 2012 (2)
Mh.L.J. 602.
[4] Sardar Mohar Singh Vs. Mangilal (1997) 9 SCC 217.
[5] Salem Advocate Bar Association T. N. Vs. Union of India
(2005) 6 SCC 344.
9. I have heard the respective Counsel for the parties at
length and I have given due consideration to their submissions.
The facts narrated above indicate that as per the decree passed on
6-12-012, the respondents were required to deposit the balance
amount of consideration within a period of two months thereafter.
The period of two months came to an end on 5-3-2012. The
application for enlargement of time was moved on 1942012
which is about a month and half after expiry of period of the two
months. The Hon'ble Supreme Court in Sardar Mohar Singh
(supra) has held that under provisions of Section 28(1) of the said
Act, after the decree for specific performance is passed, the Court
does not lose its jurisdiction nor does it become functus officio. Till
the period the sale deed is executed in execution of the decree, the
trial Court retains its powers and jurisdiction to deal with the
decree. The Court has the power to enlarge the time despite an
application for rescission of the decree being filed by the judgment
debtor. The prayer for extension of time is distinct from a prayer
for condonation of delay. In the aforesaid case, the delay of about
seven and half years was extended for complying with the decree
of specific performance.
In the light of the aforesaid legal position, if the facts
of the present case are considered, it can be seen that the
respondents had applied for certified copy on 7-12-012. The same
was received on 13-4-2012. Immediately thereafter on 19-4-2012,
the application for enlargement of time came to be moved. While
considering this application, the trial Court found that though the
said application was filed under Section 148 of the Code, it would
be treated as an application seeking extension of time to deposit
the balance consideration. The application was treated as one
filed under Section 28 of the said Act. In para 21 of its order, the
trial Court has found the reasons mentioned therein to be
justifiable, bonafide and convincing. If the application for
extension of time to deposit balance consideration is to be treated
differently from an application for condontation of delay and if
within a short period from receiving certified copy, such
application for extension of time had been moved, I do not find
that by accepting the prayer for extension of time the trial Court
acted in any manner contrary to law. The trial Court not having
become functus officio it acted within its jurisdiction in allowing
the application moved by the respondents.
10. Though the learned Counsel for the petitioner is
justified in submitting that the knowledge of the decree ought to
be attributed to the parties on the day the judgment is
pronounced, in the facts of the present case when the time of two
months was granted to make the balance payment and the
application for extension was moved within a period of a month
and half thereafter, it cannot be said that in this situation there
was any deliberate delay on the part of the respondents in seeking
extension of time to deposit the balance consideration. The
discretion in that regard was rightly exercised by the trial Court
especially when it did not lose seisin of the matter. The judgment
of the learned Single Judge in Bhujangrao Ganpati (supra) cannot
be relied upon in the light of the subsequent judgment of the
Hon'ble Supreme Court in Sardar Mohar Singh (supra). The
judgments relied upon by the learned Senior Counsel for the
respondents support his submissions.
11. As regards the order passed by the trial Court treating
the application under Section 28 of the said Act to be premature,
this conclusion of the trial Court is also justified. The application
for extension of time was moved on 19-4-2012 while the
application under Section 28 of the said Act was moved on
28-9-2012. Unless the prayer for enlargement of time was
decided, there was no question of considering the prayer for
rescinding the contract. Once the prayer for extension of time was
granted, it is obvious that the application moved under Section 28
of the said Act would have to be treated as having been filed
prematurely.
12. As a result of the aforesaid discussion, I do not find
any case to interfere in writ jurisdiction. There being no
jurisdictional error committed by the trial Court, the writ petition
is liable to be dismissed. The same is accordingly dismissed with
no order as to costs.
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