JAGJIT SINGH SAWHNEY Vs. HUKAM CHAND

JUDGEMENT

(1.) (Respondent had a plot of land at Friends Colony, N. Delhi. Appellant on 28-11-63 agreed to buy the same far Rs. 3,95,000.00 with condition that he would build a cottage and annexe within a certain time and on completion of same respondent would transfer the plot on payment of agreed price. Earnest money of Rs 40,000.00 was paid. Appellant instead of building a cottage began constructing a house and could not raise construction within stipulated time and a supplemental agreement was executed extending the time Appellant could not complete construction. Respondent then sued fur mandatory injunction to vacate the plot and appellant sued him for specific performance of contract. Both were consolidated and it was decreed on 18-4-68 that appellant should deposit Rs. 3,55,000.00 within 4 months and respondent would then execute sale deed. Appellant failed to deposit and 'the respondent applied U/S 28 of Specific Relief Act. for rescision of the contract. Single Judge accepted the application and ordered that respondent should pay to appellant Rs 2,50,000.00 for the construction and that respondent was entitled to rent and profits in respect of property at the rate of Rs. 4,500.00 per month from 1-6-65. Appellant appealed to D.B with the grievance that as subject matter of agreement was plot of land the respondent was entitled to rents and profits of the plot and not of the house built by him). Para 13 onwards judgement is :-

(2.) What the court can direct when a contract is rescinded under section 28 of the Act has been provided for by sub-section (2) which consists of two parts (a) and (b) There is no dispute about (a) which relates to directing the party who had obtained possession to restore such possession to the vendor. It is worth recalling that the possession was taken by the appellant on 1-6-1965 ; it is common ground that the respondent took back the possession of the plot with the buildings on 18-8-1970.

(3.) Sub-section (2) (b) authorised while rescinding the contract to direct payment to the vendor of all the rents and profits which have accrued "in respect of the property; it further, enables the Court, "if the justice of the case so requires" to direct the refund of any sum paid by the vendee or lessee as earnest money or deposited in connection with the contract. To the latter aspect we shall revert later.