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Onkar Nath and anr. Vs. Basheer and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1567 of 1977
Judge
Reported inAIR1986P& H152
ActsSpecific Relief Act, 1963 - Sections 28
AppellantOnkar Nath and anr.
RespondentBasheer and ors.
Excerpt:
.....transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - --1. whether the decree-holder has failed to comply with decree and consequently the contract stands rescinded ? opjd. it held that the respondent had not failed to comply with the decree and thus the contract did not stand rescinded. 7. the only question that arises for determination is as to whether the petitioners or the respondent failed to comply with the decree. but for the reasons best known to them they did not adopt that course. consequently i am of the opinion that the plaintiff-respondents failed to comply with the decree within the..........rs. 20,400/-. they received an amount of rs. 3,00/- as earnest money at the time of agreement. the sale deed was to be executed on or before 10th december, 1974. the balance amount of rs. 17,400/- was to be paid to them at the time of the execution of the sale deed. the sale deed was not executed according to the agreement. consequently the plaintiffs instituted a suit for possession through specific performance on payment of rs. 17,400/-. it was contested by the petitioners inter alia on the ground that the plaintiffs were responsible for breach of the agreement.3. the trial court did not accept the version of the defendants and decreed the suit in favour of the plaintiffs on 9th nov., 1976. it was provided in the decree that the defendants would execute the sale deed within a period of.....
Judgment:
ORDER

1. This revision petition has been filed by the defendants against the order of the Subordinate

Judge 1st Class, Ajnala dt. 23rd Sept. 1977.

2. Briefly the facts are that the defendant-petitioners were the owners of the land in dispute. They entered into agreement dated 8th Feb., 1974 with the plaintiff-respondents for sale of the land for consideration of Rs. 20,400/-. They received an amount of Rs. 3,00/- as earnest money at the time of agreement. The sale deed was to be executed on or before 10th December, 1974. The balance amount of Rs. 17,400/- was to be paid to them at the time of the execution of the sale deed. The sale deed was not executed according to the agreement. Consequently the plaintiffs instituted a suit for possession through specific performance on payment of Rs. 17,400/-. It was contested by the petitioners inter alia on the ground that the plaintiffs were responsible for breach of the agreement.

3. The trial Court did not accept the version of the defendants and decreed the suit in favour of the plaintiffs on 9th Nov., 1976. It was provided in the decree that the defendants would execute the sale deed within a period of one month in accordance with the agreement on receipt of the balance consideration of Rs. 17,400/- and that the plaintiffs would be entitled to the costs of the suit which could be adjusted in the sale consideration to be paid at the time of the execution of the sale deed.

4. The case of the pt is that within the period of one month the respondent did not pay the balance amount, requisite money for purchasing the stamp and the draft of the proposed sale deed as directed by the Court. Consequently the decree stood rescinded. Therefore, they filed an application for rescission of the contract for sale under S. 28 of the Specific Relief Act. 1963.

5. The petition was contested by the respondent who inter alia pleaded that they were ready and willing to deposit/pay the amount and furnish the draft agreement but the pt were not ready to comply with the decree and they refused to execute the sale deed.

6. On the pleadings of the parties the following issues were framed by the trial Court:--

1. Whether the decree-holder has failed to comply with decree and consequently the contract stands rescinded OPJD.

2. Relief.

It held that the respondent had not failed to comply with the decree and thus the contract did not stand rescinded. Consequently the petition was dismissed. The petitioners have come up in revision petition to this Court.

7. The only question that arises for determination is as to whether the petitioners or the respondent failed to comply with the decree. In order to determine the question it is necessary to read the relevant part of the decree which is as follows:

'....... the suit of the plaintiffs for possession of the suit land by specific performance of the agreement dt. 8-2-1972 is decreed in favour of the plaintiffs against the defendants and the defendants are directed to execute the sale deed within a period of one month from today in accordance with the agreement dt. 8-2-1974 and sell the suit land measuring 80 Kanals 12 Marlas fully described in the head note of the plaint in favour of the plaintiffs, on receipt of the balance consideration of Rs. 17, 400/-. The plaintiffs shall also be entitled to the costs of the suit. The costs shall also be adjusted in the sale consideration to be paid the time of the execution of the sale deed'.

From its reading it is evident that the plaintiff-respondents had to pay in the first instance an amount of Rs. 17,400/- within a period of one months after deducting the amount of costs to expenses of the sale deed in terms of the agreement. Thus they had further to tender the amount for purchasing the stamp, etc. to the defendant-petitioners and the draft of the sale deed. Thereafter t the defendants had to execute the sale deed in their favour. The defendant-petitioners in order to prove that they were ready and willing to perform their part of the decree produced Piara Singh (A. W. 1). One of the petitioners Jagdish Mitter, also appeared as A. W. 2 Both of them stated that they went to the respondent and requested them to pay the balance sale price and give the draft agreement so that the sale deed be executed in their favour but they told them that they were arranging for the amount and the same would be paid after the arrangement had been made. Basheer plaintiff appeared in the witness-box as R. W. 2 and deposed that they were ready and willing to pay the amount and give the draft of the sale deed but the petitioners were not ready to execute the sale deed. The version of the respondent does not appear to be trustworthy. If they had made an arrangement for the money and the petitioners refused to accept the same, they could deposit the amount in the Court and apply for execution of the decree. But for the reasons best known to them they did not adopt that course. The even did not serve any notice on the petitioners that they (petitioners) had refused to accept the money and execute the sale deed. Consequently I am of the opinion that the plaintiff-respondents failed to comply with the decree within the stipulated period.

8. Section 28 of the Specific Relief Act, 1963 inter alia providers that where in any suit a decree for specific performance of the contract for sale of immovable property has been made and the purchaser does not, within the period allowed by the decree or such other period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor 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.

9. From bare reading of the section it is clear that the seller has been given a right to make an application for rescission of the contract after the decree has been passe against him, if the purchaser fails to pay the purchase money as directed by the Court within the prescribed period or such further period as the Court may allow. The contract of sale cannot be rescinded on any other ground except the one provided in the section. As already observed above, the respondent failed to pay the sale consideration within the prescribed period and they did not apply for extension of the period for doing so. Therefore, the petitioners became entitled to get the contract rescinded.

10. For the aforesaid reasons I accept the revision petition with costs, set aside the order of the trial Court and rescind the contract for sale of the land. Counsel fee Rs. 250/-.

11. Revision allowed.


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