P BASKARAN Vs. P SOUNDARARJAN

JUDGEMENT

(1.) O.S. No. 5 of 2009 on the file of the Additional District Court (Fast Track Court No. 2), Poonamallee was filed by one P. Baskaran for specific performance of agreement of sale dated 2007 14 SCC 26.12.2005 executed by the defendants in that suit namely Soundararajan and Venkatesan in his favour. The suit was decreed after contest and as per the decree, the plaintiff P. Baskaran was directed to deposit the balance sale consideration of Rs. 10,00,000/- (Rupees Ten lakhs only) before the Court within one month and the 1st defendant namely P.Soundararajan was directed to execute the sale deed in favour of the plaintiff P. Baskaran within a period of two months thereafter. The decree was passed on 17.9.2010. Thereafter, the Decree holder filed I.A. No. 790 of 2010 seeking for an extension of time to make the payment of Rs. 10,00,000/- and that petition was filed on 18.10.2010 and during the pendency of the said application the Decree holder also filed I.A. No. 871 of 2010 seeking permission of the Court to deposit a sum of Rs. 5,00,000/- (Rupees Five lakhs only) and prayed fifteen days time for depositing the balance amount of Rs. 5,00,000/- and that petition in I.A. No. 871 of 2010 was filed on 15.11.2010. The Court below permitted the Decree holder to deposit Rs. 5,00,000/- without prejudice to the contention of the respondents/defendants in the suit. Thereafter, the Decree holder filed I.A. No. 950 of 2010 on 30.11.2010 to deposit the balance amount of Rs. 5,00,000/- and that was also allowed to be deposited. The Judgement Debtor also filed I.A. No. 945 of 2010 to rescind the contract on the ground that the Decree holder has not complied with the decree and he failed to pay a sum of Rs. 10,00,000/- (Rupees Ten lakhs only) within a period of one month from the date of decree and therefore the decree for specific performance has to be set aside. The learned District Judge dismissed I.A. No. 790 of 2010 filed by the Decree holder seeking extension of time to deposit for a sum of Rs. 10,00,000/- holding that after passing of the decree, the Court becomes functus officio and the Court has no power to grant extension of time and therefore the application is not maintainable. Consequent to the dismissal of I.A. No. 790 of 2010 the other two applications filed by the Decree holder in I.A. Nos. 871 and 950 of 2010 were also dismissed. Strangely, the learned District Judge dismissed the application filed by the Judgement Debtor in I.A. No. 945 of 2010 seeking the relief of cancelling the decree as the Decree holder has not paid the balance consideration of Rs. 10,00,000/- (Rupees Ten lakhs only) within the time stipulated holding that having regard to the order passed in I.A. No. 790 of 2010 the petition filed by the Judgement Debtor became infructuous. Therefore, the Decree holder filed C.R.P. Nos. 1750, 1751 and 1752 of 2011 challenging the orders passed in I.A. No. 790, 871 and 950 of 2010 in O.S. No. 5 of 2009 and the Judgement Debtor filed C.R.P. No. 705 of 2012 against the order passed in I.A. No. 945 of 2010 in O.S. No. 5 of 2009. Mr. M. Nagasubramanian, the learned counsel for the revision petitioner in C.R.P. Nos. 1750 to 1752 of 2011 submitted that the Court below erred in dismissing the application filed by the Decree holder seeking extension of time holding that the Court has become functus officio after passing of the decree and as per Section 28 of the Specific Relief Act, the Court has got power to grant extension of time for complying with the directions given in the decree and the Court will not become functus officio and he also relied upon the Judgements (Sardar Mohar Singh Vs. Mangilal, 1997 9 SCC 217, (Kumar Dhirendra Mullick Vs. Tivoli Park Apartments (P) Ltd., 2005 9 SCC 262, (Chanda Vs. Ratini, 2007 14 SCC 26).

(2.) On the other hand, Mr. M. Vivekanandan, the learned counsel for the revision petitioner in C.R.P. No. 705 of 2012 and who is also appearing for the 1st respondent in C.R.P. Nos. 1750 to 1752 of 2011 submitted that the Court below having dismissed the applications filed by the Decree holder in I.A. No. 790 of 2010 ought to have allowed, the application filed by the revision petitioner in I.A. No. 945 of 2010 and ought to have rescinded the contract and the order of the Court below in dismissing the application is erroneous and is liable to be set aside. He further contended that being a suit for specific performance the Decree holder must always be ready and willing to perform his part of the contract and even after passing of the decree in his favour, the Decree holder was not able to deposit the balance sale consideration as per the decree and therefore the conduct of the Decree holder would only prove that he was not ready to perform his part of the contract and hence he was not entitled to the relief of specific performance and therefore the contract ought to have been rescinded and the petition filed by the Judgement Debtor in I.A.No.945 of 2010 ought to have been allowed by the Court below.

(3.) At the outset, the Court below ought not to have dismissed the application filed by the Judgement Debtor in I.A. No. 945 of 2010 holding that the petition has become infructuous after dismissing the application filed by the Decree holder in I.A. No. 790 of 2010. When the Court refused to grant time then the Court ought to have allowed the application filed by the Judgement Debtor. Nevertheless, in this case, the Court below did not dismiss the applications filed by the Decree holder on merits and the application filed by the Decree holder was dismissed on the ground that after passing of the decree, the Court has become functus officio and the Court has no power to grant extension of time. It has been held by the Court below that the case was over on 17.9.2010 when the decree was passed and therefore the application filed by the Decree holder seeking for extension of time is not maintainable. Therefore, the Court below did not dismiss the application filed by the Decree holder on merits and dismissed those applications only on the ground that the Court has become functus officio and the Court has no power to grant extension of time. It is seen from the Judgement relied upon by the learned counsel for the revision petitioner/Decree holder that the Hon'ble Supreme Court while interpreting Section 28 of the Specific Relief Act clearly held that even after passing of the decree, the Court will not become functus officio and the Court can pass any order either in favour of the Decree holder granting extension of time or in favour of the Judgement Debtor by rescinding the contract for non-compliance of the conditions.