Dr. J. S. Mumick vs Dhanda Engineer (P) Ltd.

Gurudev Singh, J.—This petition for revision u/s 115 of the CPC is directed against the under of Shri M. S. Saini, Subordinate Judge First Class, Ballabhgarh, dated 8th April,1969, dismissing the Petitioner''s application u/s 28 the Specific Relief Act 4. of 1963 for rescinding the contract of sale between the parties. The matter has arisen in the following circumstances

On 4th February, 1959, the Petitioner Dr. J. S. Mumick entered into an agreement with the Respondent-company to sell plot No. 15-A, situate at Faridabad for Rs. 19000/-. The receipt of Rs. 2000/- having been acknowledged by the vendor, the sale-deed was to be executed on payment of the balance, Rs. 17,000/-. The sale having not been completed, a suit for specific performance was brought by the Respondent-company, which was decreed on 31st May, 1962. Under this decree the Plaintiff was required to deposit Rs. 17,000/- being the balance of the purchase price payable under the agreement, by 3lst July, This amount was duly deposited in the treasury on 28th July, 1962 Feeling difsatisfied with the decree, the Defendant, however, appealed to this Court, but the same (Regular First Appeal No. 184 of 1962) was dismissed by a Division Bench on 27th November, 1967, and he was burdened with the costs of the appeal. The operative part of the judgment on which the decree is based runs as follows: -

In the result, the appeal is dismissed with costs. But since ad interim stay of execution of the sale deed was granted by the admitting Bench, the sale-deed of the land is suit is to be executed by the Defendant in favour of the Plaintiff within one month from today, failing which the Plaintiff is entitled to have the sale deed executed through Court.

The clear direction of the Court to execute the sale deed within one month was not complied with, and it appears that dispute arose between the parties regarding the payment of costs of the litigation that the decreeholder had to recover. Before the decreeholder could approach the Court for compelling the vendor to execute the sale-deed, Dr. J. S. Mumick, the vendor, applied to the trial Court u/s 28 of the Specific Relief Act 1963 to have the contract rescinded on the following grounds:

(1) that the Plaintiff had neither furnished a draft of the proposed sale-deed, nor remitted the money required for the purchase of the stamp paper on which the sale-deed was to be executed, within the period of one month allowed by the decree;

(2) that the Plaintiff had not remmitted the sale price to the Defendant within the period of one month and had not taken steps necessary for the completion of the sale-deed in spite of the fact that he was asked to do so by the Defendant vide his registered letter dated 26th September, 1967; and

(3) that the Plaintiff was never ready and willing to complete the agreement for sale within one month allowed by the appellate Court and he had thus lost his right under the decree on the expiry of that period and the contract of sale stood rescinded.

In resisting this prayer u/s 28 of the Specific Relief Act 1963, the Respondent, besides pleading that the application was not maintainable and the Court had no jurisdiction to rescind the agreement for sale, refuted the assertion that the Respondent-company was not ready and willing to perform its part of the agreement. It blamed the applicant for non-execution of the agreement, asserting that he had been wrongly denying the right of the Respondent to recover the costs awarded to him under the decree. With regard to the payment of the consideration for the sale, it was pleaded that the same was deposited in the sub treasury within the time allowed by the trial Court and long before the appeal was decided in the Respondent''s favour. In the course of the proceedings, the treasury challan. Exhibit R. 5. was brought on record, which goes to prove that a sum of Rs. l7000/- was deposited by the Respondent in the treasury on 28th July, 1967. well within the time that was allowed by the trial Court.

The operative part of the judgment of the appellate Court has been reproduced earlier. It is apparent that it does not contain any direction to the Respondent decreeholder to pay any money this is obviously because of the fact that the balance of the purchase money, which the Respondent had to pay under the agreement of the sale had been deposited long before the appeal was disposed of. There can thus be no doubt that there was no default on the part of the Respondent to comply with any direction in the final decree passed in the appeal regarding the payment of the purchase money or any other sum. In fact, if there was any default, that was on the part of the present Petitioner who was required to pay the costs of the appeal to the Respondent.

6 Learned Counsel for the Petitioner has contended that mere deposit of the balance of the sale-price within the time allowed under the decree did not absolve the Respondent from taking steps necessary for execution of the sale-deed and if he committed default in taking such steps of furnishing the necessary stamp-paper or draft of the sale deed within one month allowed under the decree, it was not open to him subsequently to claim the advantage of the decree passed in his favour and the Petitioner had the right to get the agreement of sale rescinded u/s 28 of the Specific Relief Act, 1963. The Respondent''s learned Counsel has vehemently controverted this contention. He has not only refuted the charge that the Respondent had committed default in taking steps to have the agreement excuted but urged that even if there was some remissness on the part of the Respondent to furnish the necessary stamp-paper (on the supposition that he was to furnish the same) or to submit the draft of the sale-deed, that would not form a ground for rescinding the agreement of sale u/s 28 of the Specific Relief Act. This contention with regard to the maintainability of the application out of which these proceedings have arisen appears to me to be well founded. Sub-section (1) of Section 28, which alone is relevant for or our purposes runs thus:

28(1) Where in any suit a decree for specific performance of a contract for the sale of lease of immovable property has been made and the purchaser of lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lesser may apply in the same suit in which the decree is made, to have the contract rescinded and on such applica-the Court may, by order the refeind contract either so far as regards the party in default or altogether, as the justice of the case may require.

On a plain reading of this provision, it is evident that the seller has a right to apply for an order rescinding the agreement of sale after a decree for specific performance has been passed against him if "the purchaser does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sura which the Court has ordered him to pay" There is nothing in Section 28 which suggests that the decree for specific performance can be annul-ed or the agreement of sale rescinded, after the decree had been passed, on any other ground. Ordinarily, a decree passed by a Court has to be executed in accordance with law and all objections which relate the execution of the decree have to be decided by the executing Court if they relate to the execution, discharge or satisfaction of the decree. The failure of the party to a decree to discharge its obligations, if they have any effect on the decree or render it inexectuable have to be gone into by the executing Court. Section 28 of the Specific Relief Act, 1963, is an exception to this general rule and being in the nature of an exception, it has to be strictly construed. The language of this provision is clear and does not admit of any ambiguity. The only ground on which the Court can make an order rescinding the agreement of sale under this provision is that the purchaser has committed default in "paying the purchase money or other sum within the time allowed under the decree." If the contention raised by the Petitioner''s learned Counsel is accepted, then the language of Section 28 will have to be modified and some such pharse as "or for the default of the purchaser in taking steps to have the sale deed executed" will have to be added. It is well recognized rule of construction that when the language is clear and unambiguous and the provision as it stands can be applied to a certain situation, it is not open to the Court to add any words to that provision even if they be considered necessary or desirable to relieve certain hardship or to do justice between the parties. I am, accordingly, of the considered opinion that once it is proved that there has been no noncompliance with any direction in the decree regarding the payment of purchase money or any other sum payable under the decree for specific performance, the Court has no Jurisdiction to rescind the agreement of sale. If there is any other objection of the decree, or if there is anything in this conduct of the decreeholder which renders the decree inexecutable or disentitles him to the relief decreed, those matters can be urged before the Executing Court and the same can be gone into by, it in execution proceedings. In this view of the matter, the objections raised on behalf of the Petitioner that the Respondent was not ready and willing to perform his part of the contract or that he had not taken any steps to facilitate the execution of the saledeed do not arise for consideration in these proceedings, and, as they are likely to be raised before the executing Court. I would not like to go into those matters and express any opinion therein to avoid prejudice to the case of the parties before the executing Court.

For all these reasons,I find no force in this petition and dismiss the same leaving the parties to bear their own costs.