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Pankoj Kumar Bhattacharjee Vs. Manmatha Nath Vidyabhushan Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberAppeal from Appellate Order No. 5 of 1961
Judge
Reported inAIR1973Cal439
ActsSpecific Relief Act, 1877 - Sections 35 and 38
AppellantPankoj Kumar Bhattacharjee
RespondentManmatha Nath Vidyabhushan Bhattacharjee
Appellant AdvocateN.C. Dasgupta, Adv.
Respondent AdvocateSubodh Bhattacharjee, Adv.
DispositionAppeal dismissed
Cases ReferredHungerford Investment Trust Ltd. v. Haridas Mundhra. For
Excerpt:
- .....place, it is contended on behalf of the appellant that as there was no provision for fixing a time limit under section 35(c) of the specific relief act, 1877, the parties being governed by this act as the suit was instituted on 20-4-1963, failure to deposit that amount within the limited time allowed by the court in the decree could not have entitled the respondent to get an order of rescission of contract and consequently of the decree for specific performance. in support of such contention reliance was placed on a decision of the judicial committee in (1933) 37 cal wn 379, hansraj gupta v. the official liquidators of the dehradun-mussorie electric tramway co. ltd., as also on another decision of allahabad high court in : air1958all488 , someswar dayal v. widow of lal-man shah and.....
Judgment:

A.K. Sinha, J.

1. The only question involved in the present appeal is whether the order rescinding the decree for specific performance of contract for sale of certain immovable properties originally passed in favour of the present appellant should be maintained.

2. The present appellant filed a suit for specific performance of contract for sale to him of immovable properties comprising of land structures at and for the price of Rs. 6,000/-. The suit was contested by the respondent and ultimately a decree for specific performance of the contract was passed in favour of the present appellant on condition that on plaintiff's depositing the balance of purchase money of Rs. 6,000/-, it is admitted that a sum of Rs. 1,000/- was paid in advance, within two months from the date of the decree the appellant would be entitled to get sale deed executed and registered in his favour in respect of the disputed property by the respondent and in default thereof, such sale deed would be executed and registered through court. What happened thereafter was that the appellant failed to deposit the balance of the purchase money within the time allowed by the court in the decree and consequently the respondent made an application stating, inter alia, that as he failed to deposit the balance of purchase money within the time allowed, the decree for specific performance became infructuous and prayed also for appropriate orders. This application was contested on several grounds but, ultimately, the Trial Court passed an order rescinding the decree for specific performance on the view that the appellant failed to deposit the balance of purchase money within the time allowed. On appeal the learned Appellate Court below substantially took the same view and dismissed the appeal.

3. Before us in the first place, it is contended on behalf of the appellant that as there was no provision for fixing a time limit under Section 35(c) of The Specific Relief Act, 1877, the parties being governed by this Act as the suit was instituted on 20-4-1963, failure to deposit that amount within the limited time allowed by the court in the decree could not have entitled the respondent to get an order of rescission of contract and consequently of the decree for specific performance. In support of such contention reliance was placed on a decision of the Judicial Committee in (1933) 37 Cal WN 379, Hansraj Gupta v. The Official Liquidators of the Dehradun-Mussorie Electric Tramway Co. Ltd., as also on another decision of Allahabad High Court in : AIR1958All488 , Someswar Dayal v. Widow of Lal-man Shah and on a decision of the Supreme Court in AIR 1972 SC 1926, Hungerford Investment Trust Ltd. v. Haridas Mundhra. For the purpose of this case, we do not think that the first two decisions have got to be gone into in details for the decision of the Judicial Committee has no application to the present case' and the Allahabad decision did not lay down any principle that the Court had no power to fix time limit in passing a decree for specific performance for payment of purchase money or balance thereof in Court. As regards the decision of the Supreme Court, in the first place, this was a matter of specific performance or rescission of contract or of decree for specific performance with regard to sale and purchase of certain movable properties namely company's shares and in the Second place in dealing with this aspect of the matter it was held that in the absence of any time limit, the performance of the decree by payment of purchase money should be made within a reasonable time. Clearly, therefore even applying the principle indicated in the decision of the Supreme Court we cannot uphold the contention raised on behalf of the appellant. Here the Court did fix a time limit, to pay the balance of purchase money and therefore the question of performance of that decree by payment of purchase money again within a reasonable time could not arise.

4. Now, the further question is whether under the provisions of the old Act as noticed above, the Court has any power to fix a time limit. We are clearly of opinion that the Court had. It is true that Allahabad High Court observed that there is no express provision of such power in the old Specific Relief Act but at the same time it accepted a decree for specific performance providing for payment of purchase money within a time limit as a normal rule, as valid, It is also sought to be contended by reference to the corresponding provisions of the new Act that whereas such power is specifically given in later Act it is significantly absent in the old one. We think, this does not make any difference. Unless a time limit is given in the decree for specific performance for payment of purchase money or performing other matters which may be ancillary in connection with the decree for specific performance within certain time, no question could at all arise regarding the rescission of the contract and the decree. It is therefore, quite clear that although such power of fixing time limit is not expressly provided it must be deemed to have been there by necessary implication. In our opinion, it was not open to the appellant to come at any stage and at any time to pay the money and ask for enforcement of the decree for specific performance of the contract. It may be that even after fixing the time limit, the court had power to enlarge such time, but, that again would depend upon the attitude that might be taken by the party in whose favour such decree for specific performance is passed. In this case, even after the application was made by the respondent showing that under the terms of the decree for specific performance there was rescission of the decree for non-payment of the purchase money within the time limit fixed by the court, the appellant did not make any application at any stage either at the Trial Court or even at the first Appellate Court for enlargement of time to enable him to deposit the balance of purchase money. That being the position, we are clearly of opinion that in this case the order rescinding the contract and decree for specific performance based thereon has been rightly made.

5. The other contention is that there was no proper application before the Court for rescission of the contract and the decree for specific performance based thereon. We do not think, there is any statutory or standardised form of such application. We are satisfied on perusal of the application that it was substantially an application for rescission as was rightly held by the first Appellate Court. We therefore do not find any substance in this contention.

6. It is, however, argued for the first time before us that admittedly a sum of Rs. 1,000/- was taken in advance as a part of the purchase money by the respondent. As the decree has now stood rescinded under the order of the court, that money ought to be refunded to the appellant. We are referred to Section 38 of the same Specific Relief Act wherein it is provided that on adjudging the rescission of a contract the court may require the party to whom such relief is granted to make any compensation to the other if justice so requires. We have heard Mr. Bhattacharjee on this aspect of the matter, but, he could not assign any reason why this money should be withheld or should not be refunded to the appellant. After all, the specific performance of contract is essentially a matter of equitable relief and either in granting or refusing any relief or rescinding either the contract or the decree for specific performance, it is open to the court to grant such relief to either party as justice may require. In our view, in the facts and circumstances of the present case, for the ends of justice, it would be only fair and proper to direct the respondent to refund the entire amount of Rs. 1,000/- to the plaintiff appellant within six months from today.

7. Accordingly, this appeal is dismissed.

8. We direct the respondent to refund the entire amount of Rs. 1,000/- to the appellant within six months from today, failing which the appellant shall be entitled to realise the amount by execution of this order.

9. There will, however, be no order as to costs in this appeal.

Sen Gupta, J.

10. I agree.


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