IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.6082 of 2010 (O&M) Date of Decision : 21.9.2010 Davinder Kumar ....Petitioner Versus Mohan Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Sandeep K.Sharma, Advocate for the petitioner. ..... MAHESH GROVER, J. The petitioner is a decree holder of the year 2004 by which a suit for specific performance of the agreement to sell had been allowed in his favour. As per the terms of the decree he was to deposit a sum of Rs.50,000/- within a period of two months. An appeal was preferred by the petitioner which was dismissed in 2006. The petitioner, however, did not deposit the said amount within the stipulated period. Even after dismissal of the appeal he did not make any endeavour to move the court appropriately so as to enlarge the time as per the scope of the decree. In the year 2009 for the first time he made an application that the time granted by the court while decreeing the suit be extended enabling him to deposit the amount. The contention of the learned counsel for the petitioner is that the decree was not contingent upon time and could be thus enlarged at any time. C.R.No.6082 of 2010 (O&M) -2- The contention is misplaced. The petitioner does not have any justifiable right to invoke the proceedings in his favour when there was an inordinate delay in invoking such proceedings and a vested right had accrued to the respondent. A plea has been raised that since the respondent did not invoke the provisions of Section 28 of the Specific Relief Act, therefore the petitioner had a right to deposit the money at any time, pursuant to the decree in his favour. I have considered this aspect of the matter. Section 28 is extracted herein :- “28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.-- (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) where a contract is rescinded under sub-section (1), the court -- C.R.No.6082 of 2010 (O&M) -3- (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely :-- (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a C.R.No.6082 of 2010 (O&M) -4- vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the court.” A perusal of the above reveals that the vendor may seek rescission of contract in the eventuality of the decree holder not depositing the amount in terms of the decree. It is thus an independent right granted to the vendor, while the decree holder derives his right from the decree. Merely because the vendor does not invoke his right under Section 28 does not revive a right in favour of the decree holder which stands extinguished by efflux of time. Lack of positive assertion of an act contemplated in Section 28 of the Act on the part of the vendor would not imply an accrual of an affirmative right to the proposed vendee who derives his right from the decree, more so, when he is bound by the time frame prescribed by such a decree. The petitioner who had a right to get the amount deposited had to do so within two months of the decree or at best after the dismissal of the appeal, but he could not revive the terms in his favour after a lapse of six years. No ground to interfere. Dismissed. 21.9.2010 (MAHESH GROVER) JUDGE dss