CR No.5688 of 2010 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5688 of 2010 (O&M) Date of Decision: 9.09.2010 Smt.Surjit Kaur & Anr. ..Petitioners Vs. Bhupinder Singh Waraich. ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Puneet Jindal, Advocate, for the petitioner. Mr.Veneet Soni, Advocate, for the Caveator/respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) The petitioner has invoked the supervisory jurisdiction of this court under Article 227 of the Constitution of India, to challenge the order CR No.5688 of 2010 2 dated 21.7.2010, passed by learned Civil Judge (Senior Division), Kapurthala, vide which application moved by the petitioner for rescission of contract under section 28 of the Specific Relief Act (for short the Act), was ordered to be dismissed. In the alternative a prayer was made for setting aside the impugned order, with a direction to decide the application moved by the petitioner under Order 23 Rule 3-A of the Code of Civil Procedure (for short the Code) and thereafter take a fresh decision on the application. Learned counsel for the petitioner, however, chose to contest the impugned order on merit, as alternative relief could be prayed for before the learned executing court, and not in this court, after the application was decided on merit. The plaintiff/decree holder filed a suit for specific performance of agreement to sell dated 30.11.1999. During the pendency of the suit, the parties entered into a compromise. On the basis thereof, a decree was passed by the learned court on 27.8.2001. Compromise was made part of the decree. It was agreed between the parties, that the sale deed will be executed on 27.8.2001 on payment of balance sale consideration of ` 13,33,000/- (Rupees thirteen lac thirty three thousand only). It was also agreed that the expenses for execution and registration of the sale deed will be borne by the plaintiff/decree holder. The application under section 28 of the Act, was moved by the petitioner on the pleadings that decree holder neither paid the balance sale CR No.5688 of 2010 3 consideration or the expenses to the judgment debtor, nor deposited the same in court within the time/date fixed. It was also the case of the petitioner, that the decree holder did not seek extension of time for payment/deposit of sale consideration from the court. Expenses for purchasing the stamp paper were deposited much later than the prescribed date, which was withdrawn by the decree holder subsequently. On the pleadings referred to above, ground taken was that as the decree holder committed default in not depositing the balance sale consideration and expenses within time fixed in the decree the contract dated 30.11.1999 was liable to be rescinded. The application was contested by the decree holder by taking preliminary objection of res judicata, maintainability of objections, objections being mala fide, by pleading that similar objections were previously filed by the judgment debtors, which were consigned to the record by Shri P.S.Dhanoa, the then learned Civil Judge (Sr. Division), Kapurthala. The previous objection petition was dated 23.4.2005/17.3.2006 and the order was passed by the predecessor of the court on 9.10.2006. However, order was set aside by the High Court in Civil Revision No.4361 of 2007, and as such the plea of res judicata was not competent. It was the case of the plaintiff/decree holder, that the decree dated 27.8.2001 was passed on compromise dated 23.8.2001. Plaintiff/decree holder paid money to the judgment debtor for purchase of CR No.5688 of 2010 4 stamp duty which was actually purchased by the judgment debtors. The case of the plaintiff/respondent was that when the sale deed was being scribed, the petitioner judgment debtor slipped away and did not come back and thereafter filed a false suit titled Surjit Kaur & Ors. Vs. Bhupinder Singh which was dismissed by the learned Additional Civil Judge (Sr. Division), vide judgment and decree dated 20.11.2004. Appeal against the said judgment was filed by the petitioner in which no stay was granted. The ground taken was that the petitioner/judgment debtor was filing frivolous applications one after the other. The case of the decree holder was, that no appeal or revision was preferred against the compromise decree dated 27.8.2001. Clause VII of the compromise was being misinterpreted, in the application moved by the petitioner/judgment debtor, as according to clause VII judgment debtor was to execute the sale deed by 27.8.2001 and was to hand over the possession to the decree holder, at the time of execution of the sale deed on receipt of sale consideration. In para No.VIII of the compromise it was mentioned that after passing of the decree, the decree holder Bhupinder Singh could get the sale deed in his name or in the name of his nominee and that the judgment debtor will have no objection thereof. It was also stipulated that in case judgment debtor did not execute the sale deed in terms of the decree, the decree holder had the right to get the decree executed, through the court and to get possession of the house. The judgment debtor will have no objection to this procedure. CR No.5688 of 2010 5 As already observed above, stand of the decree holder was that the petitioner slipped away when the sale deed was being scribed and thereafter filed frivolous suit which was dismissed. Decree holder therefore under the orders of the court deposited balance sale consideration of ` 13,33,000/- (Rupees thirteen lac thirty three thousand only) in the court, i.e. Government Treasury, Kapurthala on 26.9.2010. Money for purchase of stamp paper was paid to the judgment debtor by the decree holder and that the amount was still lying in court. The stand of the respondent was, that no fraud was committed by the decree holder, and that the petitioner was trying to take undue advantage of his own fault in filing this application. On the pleadings of the parties, learned Executing Court framed the following issues:- 1. Whether the applicant/JD is entitled to rescission of contract? OPA 2. Whether the application is not maintainable? OPR 3. Whether the application is barred by res judicata? OPR 4. Relief. In support of the application, the petitioner examined Surjit Kaur as AW 1 and closed her evidence. On the other hand, decree holder examined Surinder Singh as DHW 1, Subhash Chander Deed Writer as DHW 2 and Hardeep Singh as DHW 3 and closed his evidence. Issues No.1 and 2 were taken up together. CR No.5688 of 2010 6 The petitioner Surjit Kaur while appearing as AW 1 deposed that the decree holder or his attorney did not pay or deposit the balance sale consideration of ` 13,33,000/- (Rupees thirteen lac thirty three thousand only) either on 23.8.2001 or 27.8.2001 or any other date thereafter. It was deposed that no expenses for purchase of stamp paper were paid. She further deposed that decree holder or his attorney was not ready and willing to get the sale deed executed in terms of the decree passed by the court on the date specified. Plaintiff/decree holder led evidence in support of the stand taken in reply to the application, wherein a stand was taken that money for purchase of stamp paper was paid by the decree holder to Ms.Lakhwinder Kaur, attorney of the judgment debtors. She purchased the stamp paper. When the Deed Writer was scribing the sale deed at that time judgment debtor slipped away from the spot, and did not come back with mala fide intention. Ms.Jasbir Kaur, one of the co-sharers in the house in question and daughter-in-law of Ms.Surjit Kaur had already sold 1/6th share in the house. Balance sale consideration was deposited in court in terms of the compromise. The suit of partition was dismissed which stands challenged in appeal. Subhash Chander Deed Writer appeared as DHW 2, and deposed regarding scribing of the sale deed on 29.08.2001, and also deposed that he had scribed the sale deed on the papers purchased through Surinder Singh attorney, but the sale deed was not signed by the parties. He also deposed that the judgment debtor had slipped away from the spot and CR No.5688 of 2010 7 thereafter did not turn up. Hardeep Singh, clerk in the office of District Treasury Officer, also stepped into witness box as DHW 3 and testified from record that a sum of ` 1,39,800/- (Rupees one lac thirty nine thousand and eight hundred only) was deposited by Lakhwinder Kaur for purchase of stamp paper. He also produced certificate DHW 3/1 and form of challan DHW 3/2 and deposed that the stamp paper was issued by his office. On appreciation of evidence referred to above, learned Executing Court recorded that summoned file of the main suit shows that compromise dated 23.8.2001 was filed in court and on the basis of the statement of the parties decree was passed on 27.8.2001 wherein it was mentioned that compromise would be part of the decree. In the compromise Ex.C-1, it was mentioned that amount due from the decree holder was ` 13,33000/- (Rupees thirteen lac thirty three thousand only), and that the judgment debtors were ready to execute the sale deed on payment of the balance sale consideration and that the decree holders were also ready to pay expenses. In Clause VIII of the compromise, it was stipulated that the judgment debtors No.1, 2 and 4 after passing of decree will execute the sale deed till 27.08.2001, and will also deliver possession at the time of execution of the sale deed. Expenses of the sale deed and registration were to be borne by the decree holders. Decree was passed on 27.8.2001. The learned court observed, that reading of the showed that there was no such condition imposed by the court or mentioned in the CR No.5688 of 2010 8 decree that as per compromise decree holders will have to deposit the entire balance sale consideration amount in the court or pay it at a specified date and time to the judgment debtors. Rather the compromise was clear that payment of balance sale consideration was to be made at the time of execution of the sale deed and delivery of possession was also to be given. It was also mentioned in the compromise that in case judgment debtors failed to execute the sale deed, then it would be open to the decree holders to get the sale deed executed through the court. Learned Executing Court held, that there was no cogent evidence to show that the amount for purchase of stamp paper was paid by the judgment debtors themselves. Therefore, it could not to be believed that the judgment debtors had paid for stamp papers from their own pocket. The stand that in the stamp paper name of purchaser mentioned was Smt. Lakhwinder Kaur attorney of Smt. Baljit Kaur, did not mean that the payment was made by the judgment debtors as stamp papers are purchased in the name of seller, on behalf of the purchaser. The balance sale consideration was deposited in court, later to show the bona fide of the decree holders. The learned Executing Court, therefore, held that Section 28 of the Act is attracted only when condition imposed by the court is not fulfilled. The learned Executing Court further held, that there was no such condition to pay the balance sale consideration in advance or to deposit the same in court. The learned executing court held that Section 28 was not attracted to the facts of the case. CR No.5688 of 2010 9 Resultantly, issue No.1 was decided against the judgment debtors, whereas issue No.2 was decided in favour of the decree holders and against the judgment debtors. Issue No.3 was decided against the decree holders, as the order passed by the learned Civil Judge(Senior Division) was set aside by the court, therefore, held that previous order could not operate as res judicata. In view of the findings recorded above, the application was ordered to be dismissed. Mr.Puneel Jindal, learned counsel appearing on behalf of the petitioners challenged the impugned order by contending, that the compromise has been challenged by the petitioners by invoking the provisions of Order 23 Rule 3-A of the Code, though it was not disputed that suit filed by the petitioners to challenge the decree was dismissed and the judgment debtors were prosecuting the remedy in appeal. In any case, filing of a petition under Order 23 Rule 3-A of the Code or the suit to challenge the decree cannot be a ground to invoke section 28 of the Act for rescinding the contract. Learned counsel for the petitioners thereafter contended, that as per the terms of the compromise it was incumbent upon the decree holders to pay for the stamp duty as well as balance sale consideration in the court on 27.8.2001 i.e. the date fixed for execution of the sale deed, therefore, the impugned order cannot be sustained, as it is the outcome of misreading of compromise decree passed between the parties. This contention of the learned counsel for the petitioners is CR No.5688 of 2010 10 again misconceived. Decree holders by leading cogent evidence had proved that the money for purchasing stamp paper was paid to the judgment debtors, who in fact purchased the stamp paper and the sale deed was also scribed, but the judgment debtor slipped away and the sale deed could not be executed, nor did the decree holders get an occasion to pay the balance sale consideration. The contention of the learned counsel for the petitioners that Clause IV and Clause VII of the compromise were misread, is misconceived. Learned executing court rightly interpreted the compromise decree to non-suit the petitioners. It was proved that due to conduct of the judgment debtors, the plaintiffs were left with no other alternative but to deposit the amount in court to show their bona fide. The amount was deposited immediately on coming to know, that the judgment debtors had filed a suit in court. The contention of the learned counsel for the petitioners, that the amount was deposited after filing of the suit cannot advance the case of the petitioners to invoke the section 28 of the Act, as the amount was deposited within reasonable time in court as there was no stipulation in the decree for depositing the amount in the court. The contention of the learned counsel for the petitioners, that deposit of amount after the date fixed would result in automatic recission of contract could not be sustained, as it is always open to the court to accept the deposit even after the date fixed. In the case in hand, it is proved by cogent evidence that the petitioners were trying to take benefit of their own wrongs, in not CR No.5688 of 2010 11 performing their part of the contract by executing the sale deed, on receiving the balance sale consideration. Learned counsel for the petitioners by placing reliance on the judgment of Hon'ble Supreme Court in the case of V.S.Palanichamy Chettiar Firm Vs. C.Alagappan and Anr. AIR 1999 SC 918, contended that the amount could not be deposited by the petitioners in court without seeking extension of time. This contention of the learned counsel for the petitioners again cannot be accepted. In the case of V.S.Palanichamy Chettiar Firm Vs. C.Alagappan and Anr. (supra), Hon'ble Supreme Court was pleased to lay down, that when the learned Executing Court and trial court are same then the executing court can entertain the application for extension of time though the application is to be treated to be one filed in the main suit and on the same analogy the vendor/judgment debtor can also seek recission of the contract of sale and take up this plea in defence to bar the execution of the decree. This judgment has no application to the facts of the present case, firstly for the reason that there was no time fixed for deposit of money in court as the judgment debtors were to execute the sale deed on receipt of balance sale consideration. The deposit was also made by the decree holders within a reasonable time. In the case of V.S.Palanichamy Chettiar Firm Vs. C.Alagappan and Anr. (supra), there was delay of 5 years in making of application. It was in those circumstances that time was not extended. As already observed above, this judgment has no application to the facts of the present case. CR No.5688 of 2010 12 Learned counsel for the petitioners thereafter placed reliance on the judgment of this court in the case of Mohmad Yassin & Anr. Vs. Faiz Mohd. 2006 (3) CRC (Civil) 613 to contend that the amount could not be deposited without extension of time by the court. This plea is again misconceived. In case of Mohmad Yassin & Anr. Vs. Faiz Mohd. (supra), this court held, that time for deposit of balance sale consideration was extended by one day and order of executing court accepting the application under section 28 of the Act filed by the judgment debtors, decree was not set aside. Rather this court had directed the executing court to take further action in this regard. Learned counsel for the petitioners, thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Bhupinder Kumar Vs. Angrej Singh (2009) 8 Supreme Court Cases 766, to contend that Section 28 of the Act gives power to the court either to extend the time for compliance of the decree or grant an order of recission of agreement. These powers are available to the learned trial court which passes the decree for specific performance. When the court passes a decree for specific performance contract between the parties its jurisdiction is not extinguished. The decree for specific performance is in the nature of preliminary decree and the suit is deemed to be pending even after the decree . Section 28 (1) of the Act makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. Hon'ble Supreme Court was pleased to hold that CR No.5688 of 2010 13 in deciding the application under section 28 (1) of the Act, the court has to see all the attending circumstances including the conduct of the parties. The suit for specific performance is in the nature of discretionary remedy and on equity the decree holder is not entitled to get decree executed if he fails to place relevant material about his ability to tender or deposit the decretal amount within time. Though, the court has power to extend the time to fulfillment of the contract but on the facts of the said case it was held, that there was neither any material to show that the decree holder had requisite money nor he tendered or deposited the same as per the terms of the decree. The Hon'ble Supreme Court in these circumstances upheld the order of this court, in not extending the time for making the deposit. The judgment referred to above would rather go against the petitioners, as Hon'ble Supreme Court was pleased to lay down that the court has to see all the attending circumstances including the conduct of the parties. In the case in hand, it was proved, that the stamp papers were purchased but before the sale deed could be signed and consideration amount paid, the petitioners chose to slip away not to return. The decree holder on coming to know about mala fide intention of the petitioners deposited the money in court. This act of the decree holder shows that the decree holders performed their part of contract. The petitioners cannot be allowed to take benefit of their own wrongs to seek recission of contract. CR No.5688 of 2010 14 The judgments of Hon'ble Supreme court relied upon by the petitioners are of no help to the petitioners. For the reasons stated, finding no merit in this revision petition it is ordered to be dismissed, but with no order as to costs. (Vinod K.Sharma) 9.09.2010 Judge rp