PRADIP KUMAR ROY Vs. SUDARSHAN PAUL

JUDGEMENT

(1.) Heard Mr. PK Deka, learned counsel for the petitioner and Mr. GN Sahewalla, learned Senior Counsel assisted by Mr. M Sahewalla, learned counsel for the respondent.

(2.) The present petitioner was the defendant in a suit filed by the present respondents for specific performance of contract on the basis of an agreement for sale wherein the total sale consideration was Rs. 39,50,000/-. Against the said total sale consideration the plaintiff/ respondent paid an amount of Rs. 5,00,000/- as an advance sale consideration thereby showing his earnestness to perform the stipulations made in the agreement for sale. Alleging default on the part of the present defendant/ petitioner, the plaintiff/ respondent filed the suit for specific performance of contract on the basis of the agreement for sale dated 31.08.2010. It is pertinent to mention here that one of the clauses binding the parties to the suit is specific wherein if owing to default on the part of the plaintiff/ respondent the contract cannot be performed by the defendant/ respondent, under such circumstances, the advance sale consideration shall be returned subject to deduction of 15% of the total advance consideration. The suit was decreed thereby specifying a stipulated time period directing the plaintiff/ respondent to deposit the rest sale consideration amounting Rs. 35 lakhs and odd and on the other hand, with a specific direction to the defendant/ petitioner to execute the sale deed on receipt of the said left over amount.

(3.) Prior to expiry of the stipulated time by the court in the decree, the plaintiff/ respondent sought for extension of the stipulated time period which was granted by the trial court. Even on such extended time period the plaintiff/ respondent failed to deposit the said amount. Being aggrieved and there being specific instance of negligence on the part of the plaintiff/respondent in performing the stipulated promises in the agreement for sale, the defendant/ petitioner filed an application under Section 28 of the Specific Relief Act, 1963 with a prayer for rescinding the contract on the basis of which the decree was passed for specific performance of contract. However, while cancelling the decree after the rescission of the contract, the learned trial court failed to direct the defendant/ petitioner to refund the advance sale consideration or any other benefit derived by the defendant/ petitioner.