S. Ramakrishnan vs R.M. Subbiah

M. Chockalingam, J.—This judgment shall govern these six appeals in OSA Nos. 339 and 340 of 2003, 207 and 325 of 2008 and 14 and

15 of 2009.

OSA Nos. 339 and 340 of 2003 challenge a common order of dismissal made by the learned Single Judge of this Court in Application Nos.

3023 and 3025 of 1999 whereby the appellant herein who was the defendant in C.S. No. 1586 of 1988 sought for a direction to the

respondent/plaintiff to hand over title deeds in respect of the suit property within the stipulated time and also to direct the plaintiff to receive a sum

of Rs. 3,87,500/- from the defendant subject to such adjustment that may be permissible in law having regard to the occupation of the ground floor

of the property by the plaintiff, while the appellant/defendant aggrieved over the order of the learned Single Judge made in Review Application

Nos. 2251 to 2253 of 2003, has brought forth OSA Nos. 207 of 2008 and 14 and 15 of 2009. The appellant has also brought forth OSA No.

325 of 2008 challenging an order of the learned Single Judge in Application No. 3024 of 1999 seeking to rescind the contract dated 2.11.1986.

The above applications came to be filed under the following circumstances:

(a) The respondent/plaintiff filed C.S. No. 1586 of 1988 for specific performance of an agreement of sale dated 2.11.1986 entered into between

the parties in respect of the undivided half share of the suit property situated at No. 31, Jambulinga Naicken Street, Nungambakkam, Madras 34.

Equally, the appellant/defendant filed a suit in C.S. No. 130 of 1990 for a perpetual injunction restraining the defendant therein from interfering with

the peaceful possession and enjoyment of the property till the partition was effected by metes and bounds between the coparceners in respect of

the suit property. A common judgment was rendered by the trial Court on 7.12.1995, decreeing the suit for specific performance and damages in

CS 1586 of 1988 and dismissed the suit filed by the appellant in CS 130/90. Aggrieved appellant has preferred two appeals therefrom in OSA

Nos. 250 and 251/1996 before the Division Bench of this Court. On appeals, the decree for specific performance was confirmed while the relief

of injunction was negatived. The appellant/defendant filed SLP Nos. 5703 and 5704 of 1999 before the Apex Court and withdrew the same.

(b) While the matter stood thus, the appellant/defendant filed Application Nos. 3023 to 3025 of 1999 for delivery of key of the ground floor of the

suit property, handing over the title deeds relating to the suit property, rescinding the contract and directing the plaintiff to receive a sum of Rs.

3,87,500/- from the appellant subject to such adjustment that may be permissible in law with regard to the occupation of the ground floor of the

suit property by the respondent. All the three applications were dismissed. The Division Bench directed all these three applications to be re-heard

by the trial Court. In the meanwhile, the respondent filed E.P. No. 19 of 2000. The appellant filed Application No. 4571 of 2000 in C.S. No.

1586 of 1988 for stay of E.P., and pursuant to the directions of the Court, the respondent has deposited a sum of Rs. 74,499/- which is in Court

deposit. The appellant filed Application No. 1837/2001 to reject the E.P. Aggrieved over the dismissal of the said application by the learned

Master, the appellant filed Application No. 1873 of 2002. The learned Single Judge held that the respondent was not entitled to the relief of

delivery of possession. Application Nos. 3023 to 3025 of 1999 were heard. The order was passed only in A. Nos. 3023 and 3025 of 1999

against which the appellant has preferred OSA Nos. 339 and 340 of 2003.

(c) The suit in C.S. No. 408 of 2002 filed by the appellant for declaration of title to the property was withdrawn with liberty. A contempt petition

was filed by the appellant in C.P. No. 995 of 2007 for disobeying the decree in OSA No. 251/1996 dated 28.6.1999. The Division Bench

ordered to hand over the key of the ground floor of the property by 16.11.2007. The same was complied with by the respondent. A memo was

also filed on 20.11.2007, that the key of the ground floor of the suit property was handed over on the orders made in the above contempt petition,

and the memo was also recorded. A. No. 3022/1999 was disposed of.

(d) The appellant filed a suit in C.S. No. 1129 of 2007 for declaration of title and injunction based on the release deed executed by his brother and

by virtue of order made in WP No. 6114 of 1989, and the said suit is also pending. The respondent filed Review Application Nos. 2251 to 2253

of 2003 to review the order made in A. Nos. 1873, 1874 and 2481 of 2002 dated 9.8.2002, and the same were allowed. Aggrieved over the

orders of the learned Single Judge in all the above applications, the present appeals have been brought forth by the defendant.

Advancing arguments on behalf of the appellant in OSA 339 and 340/2003 and 325/2008, the learned Senior Counsel Mr. AR. L. Sundaresan

would submit that the respondent/plaintiff filed the suit for specific performance of the agreement of sale; that though he had expressed in the plaint

his readiness and willingness to perform his part of the contract arising out of the sale agreement dated 2.11.1986, he has not paid the balance of

sale consideration of Rs. 74,499/-; that a judgment was made in favour of the plaintiff/respondent on 7.12.1995, granting a decree for specific

performance, and the same was confirmed by the Division Bench of this Court in OSA No. 250 of 1996 on 28.6.1999; that till this time the

respondent has not paid the balance purchase money payable by him in spite of the fact that the parties to the proceedings were conscious about

the applications arising out of the decree passed by the trial Court as confirmed by the appellate Court; that there was deliberate and willful evasion

on the part of the respondent to perform his part of the contract, and hence the respondent could not retain the privilege of a decree and enforce

the same against the valuable property; that by reason of failure to deposit or pay the balance of sale consideration, the respondent/plaintiff

forfeited his right under the decree; that the defendant was willing to deposit the moneys which were paid by the plaintiff subject to the adjustment

under Clause 8 of the agreement and which were to be permissible in law having regard to the occupation of the ground floor of the property of the

plaintiff pursuant to the orders passed by the Court; that the decree holder has totally failed to perform his part of the obligation arising out of the

decree, and hence it is liable to be rescinded and the benefit which was conferred on him was liable to be recalled; that the appellant was always

ready and willing to pay such an amount that may be determined by the Court while rescinding the contract in his favour; that Clause 8 of the

agreement dated 2.11.1986 provides for a recourse; that having regard to the default committed by the decree holder and his failure to comply

with the spirit of the decree, the application for rescission of the contract is made by the appellant; that certain documents were handed over to the

plaintiff at the time of entering into the contract; that since the contract was sought to be rescinded and on rescission of the contract, the custody of

those documents in the hands of the respondent/plaintiff was neither legal nor valid; that the respondent/plaintiff cannot retain those documents nor

dealt with the property in view of the rescission of the contract, Clauses in the contract and also Section 20 of the Specific Relief Act; and that

under the circumstances the appellant has sought for a suitable direction to the respondent/plaintiff to deliver the documents, but the learned Single

Judge has not considered any one of these factual or legal positions and has dismissed the application for rescinding the contract.

Added further the learned Senior Counsel that the learned Single Judge has not taken into consideration the conduct of the respondent in the

payment of balance of sale consideration; that the respondent had not taken any steps for the payment of balance of sale consideration ever since

from the date of the decree of the trial Court namely 7.12.1995; that the respondent has also not cared to make any attempt to pay the balance of

sale consideration; that though the appellant has specifically raised a ground in OSA 250/96, even after the disposal of OSA Nos. 250 and

251/96, the respondent has not taken care to deposit the amount; that the appellant has already raised a plea of rescinding the contract in the trial

Court itself; that the Court has clearly observed that the appellant had filed the application for rescinding the contract, and the same was not

considered by the trial Court; that the appellant had sought for stay of the execution proceedings in A. No. 4571 of 2000; that the respondent was

voluntarily directed by the Court to deposit the balance of sale consideration even in the absence of any specific request by the respondent in that

regard; that the learned Single Judge was in error in holding that 90% of the amount was paid by the respondent; that the same was untenable in

view of Clause 8 of the agreement; that the respondent had not even made a single attempt for the past four years to make the payment of the

balance of sale consideration; that it was not correct to state that in pursuance of the order of the Court, the respondent has deposited the balance

of sale consideration; that the very same applications in A. Nos. 3023 and 3025 of 1999 along with an application No. 3024 of 1999 were taken

up after the Division Bench order dated 20.10.2000; that it would be quite clear that the Court was prejudiced by its earlier order; that the learned

Single Judge has dismissed the applications again without appreciation of the averments and contentions properly and even after the matter was

remitted back to be reheard; that the Court was in error in directing the respondent herein for payment of the balance of sale consideration when

the application for rescinding the contract was pending; and that it is not correct to state that the respondent had immediately deposited the balance

of sale consideration after the order in A. No. 4571/2000 dated 29.11.2000, which is untenable.

It is further submitted by the learned Senior Counsel that the learned Single Judge has not appreciated the claim of the appellant for rescinding

the contract under the provisions of Section 27 of the Specific Relief Act since it was neither decided by the trial Court nor by the appellate Court;

that it is true that at the time of granting a decree for specific performance, the Court has not fixed the time for payment of the balance of sale

consideration, but it has issued a direction to the appellant/defendant to execute the sale deed within a period of three months which was an

indication to the plaintiff that within the said time, he should pay or deposit the balance of sale consideration of Rs. 74,499/-; that since he has not

done so, he cannot be allowed to take the benefit of the decree; that it was a fit case where the appellant''s application for rescinding the contract

should have been allowed, and hence the order of the learned Single Judge has got to be set aside.

Advancing arguments on behalf of the appellant in OSA Nos. 207 of 2008 and 14 and 15 of 2009, the learned Counsel would submit that the

order passed by the learned Single Judge in the review application Nos. 2251 to 2253/2003 in A. Nos. 1873, 1874 and 2481/2002 was

erroneous; that an order was passed on 9.8.2002, whereby the learned Single Judge has elaborately discussed the issue and held that once the

relief of recovery of possession has been disallowed by the Division Bench, it cannot be achieved by including such a relief in the execution petition

so as to circumvent the decree passed by the Division Bench; that the learned Single Judge whose order is sought to be reviewed has specifically

held that the plaintiff had also not approached the Division Bench seeking a review or a clarification of the order, and hence the learned Single

judge should not have reviewed the earlier order whereby the claim of the respondent was rejected stating that the contentions of the

respondent/plaintiff were already negatived by the Division Bench; that the order under challenge in effect would amount to the reversal of the

finding of the Division Bench and thus the learned Single Judge was in error in interpreting; that it is pertinent to note that the Division Bench has

granted a decree for injunction in respect of the entire property in question as against the respondent in OSA No. 251/96; that it is not correct to

state that the Division Bench has dealt with the issue of possession only with regard to the ground floor of the property; that the decree for

injunction granted by the Division Bench related to the entire property; that under the circumstances the learned Single Judge should have asked

the parties to seek for clarification from the Division Bench instead of incorrectly interpreting the said judgment against the spirit and tenor of the

judgment of the Division Bench; that the appellant has already preferred OSA No. 207 of 2008 against the very same common order dated

18.12.2007 against the review application No. 2251/2003, and hence the order has got to be set aside.

The learned Counsel for the respondent in OSA Nos. 339 and 340 of 2003 and 325 of 2008 and 14 and 15 of 2009 and the learned Senior

Counsel for the respondent in OSA 207 of 2008 in their sincere attempt of sustaining the order put forth the very same contentions that were

raised before the learned Single Judge.

As could be seen above, the appellant sought the rescission of the agreement for sale entered into on 2.11.1986, on the ground that the

respondent has deliberately and willfully evaded the performance of his part of the contract by reason of failure to deposit or pay the balance of

sale consideration of Rs. 74,499/-, and thus he has forfeited his rights under the decree for specific performance. The same ground is equally urged

before this Court. It would be more appropriate to state the circumstances attendant which, in the considered opinion of this Court, are necessary

to decide these appeals.

The appellant and his brother Rathnam jointly owned an immovable property namely the house property. They entered into two sale

agreements on 2.11.1986 with the respondent in respect of the undivided half share in the property, and the entire sale consideration was

mentioned as Rs. 5,12,500/- each. The brother of the appellant on receipt of the entire consideration as stipulated in the agreement has executed a

registered sale deed in favour of the respondent in respect of the undivided half share, while the appellant did not in respect of the other. When the

sale consideration was shown as Rs. 5,12,500/-, the plaintiff has paid Rs. 50,501/- on 2.11.1986, as advance on the date of agreement, Rs. 2.50

lakhs on 20.8.1987, Rs. 75,000/- on 27.12.1987, Rs. 50,000/- on 10.1.1988 and Rs. 12,500/- on 14.1.1989, and thus admittedly a sum of Rs.

4,38,001/- was paid even before the filing of the suit for specific performance in C.S. No. 1586/1988. The appellant has not only contested the

suit, but also filed another suit in C.S. No. 130 of 1990 for permanent injunction. The trial Court heard both the suits, decreed the suit filed by the

respondent and dismissed the suit by the appellant. Aggrieved over the same, the appellant preferred OSA Nos. 250 and 251 of 1996

respectively. The Division Bench of this Court affirmed the judgment of the trial Court in respect of the decree for specific performance though

negatived the relief of damages and allowed the appeal filed by the appellant in OSA No. 251/1996 setting aside the judgment of the trial Court

and granting an injunction in favour of the appellant. The appellant has also preferred SLP Nos. 5703 and 5704 of 1999 before the Apex Court

but withdrew the same. While the matter stood thus, the respondent filed E.P. No. 19 of 2000 seeking execution of the decree for specific

performance wherein stay was asked for by the appellant. Pursuant to the directions of the Court on 29.11.2000, the respondent/plaintiff has

deposited the balance of sale consideration on 1.12.2000. Under the above stated circumstances, an application was filed for rescission of the

contract on the ground of non-performance of the agreement by reason of failure to deposit or pay balance of consideration namely Rs. 74,499/-.

Pointing to the decree originally made in C.S. No. 1586/1988, it was contended by the appellant''s side that the defendant should execute and

register the sale deed in favour of the plaintiff in respect of the undivided half share of ''A'' schedule property and deliver vacant possession of the

first floor of the said property occupied by the defendant on or before 7.3.1996; that at that time, the balance of consideration of Rs. 74,499/- was

payable; that thereafter the decree for specific performance was affirmed by the Division Bench of this Court by a common judgment in OSA Nos.

250 and 251 of 1996 on 28.6.1999; that even after the disposal of the appeals, the balance was not paid; but on the contrary, the respondent filed

EP, and in an application for stay even without asking by the respondent, there was a direction to deposit the balance of consideration; that he has

also deposited so on 1.12.2000, and this would not in any way cure the situation; that it was a clear case of deliberate and willful evasion and non-

performance of his obligation which would call for a rescission of the agreement, and hence rescission was to be ordered. In a suit for specific

performance of an immovable property on the strength of an agreement for sale, while decreeing the suit, the Court has to stipulate the reasonable

time within which the parties were to perform their obligations. If the time is not stipulated, it should be within reasonable time. What is reasonable

time depends upon the facts and circumstances of each case. Normally when there was a direction to the defendant, the owner of the property, to

execute and register a sale deed within the stipulated time, it is an indication to the plaintiff to perform his part of the contract by making payment of

the balance of sale consideration. But, at the same time, in a given case, the Court should not be so rigid in giving strict application by avoiding

cognizance of the special or peculiar circumstances. No doubt, law is supreme. But the law has to bend before justice. The endeavor of the Courts

of law is to do justice. The application of any law is to achieve the goal of rendering justice. This Court is of the considered opinion that in the

instant case, the circumstances noticed would indicate that there was neither deliberate nor willful evasion on the part of the respondent in

depositing or paying the balance of sale consideration which would warrant for a rescission of the agreement.

The agreement was entered into in the year 1986, and out of the sale consideration of Rs. 5,12,500/-, admittedly, the appellant has received

Rs. 4,38,001/- as stated supra even before the filing of the suit. Even the agreement would stipulate that the balance of consideration should be

paid at the time of the registration of the document. The trial Court has not stipulated any time for payment. Ordinarily it is not necessary as stated

above. Even during the said period, the appellant was called upon to execute the document, but there was no reply forthcoming; on the contrary,

the appellant has preferred appeals in OSA Nos. 250 and 251 of 1996, and they were disposed of in June 1999. It was the respondent who filed

E.P., where the appellant has sought for a stay. Pursuant to the orders of the Court on 29.11.2000, the respondent has made the deposit of Rs.

74,499/- within a few days. It is pertinent to point out that this payment was made pursuant to the orders of the Court. Even in cases where time is

stipulated for payment of the balance of sale consideration, the Court can extend the time. When the Court suo motu made an order, the Court

considering the circumstances has issued a direction for making deposit of the balance of consideration, and as per the order, the respondent had

deposited the sum immediately within two days. Nowhere the appellant has come forward with a case to state that the respondent has not paid the

balance of consideration due to the financial deficiency. The appellant has categorically admitted that major part of the consideration is received by

him namely Rs. 4,38,001/-, and the same was deposited by him with the banking institution and was regularly getting interest thereon. As pointed

out above, the suit for specific performance was filed in the year 1988. The said sum and the proceedings have been pending for more than 20

years, and all along these years, the appellant has been getting interest approximately Rs. 4000/- per month for nearly two decades and has

enjoyed the benefit of the same. In view of the above circumstances, this Court is unable to notice any deliberate or willful evasion in the payment

of the balance of sale consideration. But, on the contrary, the appellant having entered into an agreement for sale in the year 1986 and having put

forth all kinds of defence in the suit for specific performance and having lost the same before the trial Court and also before the appellate forum in

OSA No. 250 of 1996 and also having preferred SLP and withdrew the same, has now come forward to seek for rescission in order to avoid the

contract.

It was contended by the appellant''s side that even if the rescission of the agreement for sale between the parties is not ordered, the respondent

should file a suit for recovery of possession since the suit filed by the appellant seeking permanent injunction to restrain the respondent from

interfering with the possession of the appellant in the suit property though dismissed by the trial Court in C.S. No. 130/1990, was decreed by the

Division Bench in OSA No. 251/96 stating that the respondent was only a co-owner who has purchased an undivided half share in the property

and thus, he must go for a suit for partition; and that under the circumstances, the respondent cannot now ask for possession, and he must take

separate proceedings in that regard. Contrary to the above, it was urged by the respondent''s side that the Division Bench in the common judgment

in OSA 250 and 251/96 has clearly pointed out that the respondent is the owner of the entire property, and hence, the above contention of the

appellant''s side has to be rejected. It would be more apt and appropriate to reproduce that part of the common judgment of the Division Bench in

OSA Nos. 250 and 251/96 as follows:

The plaintiff has sought the relief of permanent injunction restraining the defendant from interfering with the plaintiff''s possession. The defendant

as plaintiff in C.S.130/90 has also sought the relief of injunction in respect of the ground floor and the first floor of the A schedule property. The

plaintiff contends that after the sale deed Ex.A.12 was executed by the brother of the defendant on 12.11.88, he handed over possession of the

ground floor to him and he is in possession and enjoyment of the suit property and the defendant is trying to interfere with his possession and so, he

is entitled to injunction asked for. On the other hand, the defendant contends that the property being undivided one and as it is a Hindu undivided

family property, the purchaser from the other co-owner cannot seek the relief of injunction and the plaintiff is not entitled to injunction asked for.

Much reliance is placed upon by the defendant on the sale deed Ex.A.12 and the plaintiff contends that possession of the ground floor has been

handed over to him.

Of course, there is recitals in the sale deed Ex.A12 executed by the other brother Rathnam that the ground floor portion was handed over to

the plaintiff. It is significant to note that in the schedule property in the sale deed Ex.A.12, only the undivided half share is sold to the plaintiff. So no

specific portion was conveyed to the plaintiff by the other co-owner Rathnam under that sale deed. Since the undivided half share alone was sold

to the plaintiff under that sale deed, the remedy open to the plaintiff for getting possession is only to seek the relief of partition of the properties.....

...

...The plaintiff has already purchased undivided half share of the property belonging to the other co-owner Mr. Rathnam. This suit is in respect

of the remaining undivided half share and the plaintiff has been granted relief of specific performance of the contract and the plaintiff is entitled to

the entire property....

From the very reading of the above as found in the judgment of the Division Bench made earlier in OSA Nos. 250 and 251/96, it would be

quite clear that the Court has observed that the respondent has purchased only an undivided half share in the sale deed executed by the brother of

the appellant, while the other undivided half belonged to the appellant, and thus the plaintiff cannot get an injunction against the defendant, and the

remedy open to the plaintiff for getting possession was only to seek the relief of partition of the properties. The Division Bench has found so since

at the time when the appeals came up for consideration, the plaintiff/respondent became the owner of the undivided half share by purchasing the

same from Mr. Rathnam the brother of the appellant, and in respect of the other undivided half share, the respondent is only having a decree for

specific performance, but did not become its owner in view of the non-completion of the transaction by execution and registration of a sale deed. It

is because of which the Division Bench in order to avoid any confusion and also to avoid any such contention, as now made by the appellant''s

side, has observed ""The plaintiff has already purchased undivided half share of the property belonging to the other co-owner Mr. Rathnam. This

suit is in respect of the remaining undivided half share and the plaintiff has been granted relief of specific performance of the contract and the

plaintiff is entitled to the entire property."" Hence the appellant cannot be permitted to take advantage of the observation found that the plaintiff was

only a co-owner and in order to get possession he must go for a separate proceedings which can, at no stretch of imagination, be allowed.

It is pertinent to point out that by purchase of an undivided half share from Mr. Rathnam, the brother of the appellant, the plaintiff has become

the co-owner of the property with the appellant with whom he has entered into an agreement for sale in respect of the other undivided half share,

and the litigations were pending that time. As on today, by virtue of the undivided share from Mr. Rathnam, the brother of the appellant, and by

virtue of the decree granted by the trial Court in C.S. No. 1586/88 and thereafter affirmed by the Division Bench by a common judgment in OSA

Nos. 250 and 251/96 which has reached finality, the respondent has become the owner of the entire property. Under the stated circumstances, if

the contention of the appellant''s side has got to be accepted, the respondent/plaintiff must be driven to initiate proceedings and litigate for decades

to get the fruit of the decree. It is pertinent to point out that the undivided half share was purchased from Rathnam the brother of the appellant, in

the year 1986, and in respect of the other half C.S. No. 1586/88 was filed in the year 1988, and thus the litigation between the parties is pending

for more than two decades. This Court is of the considered opinion that in order to avoid the multiplicity of proceedings and also avoidable

litigation, it would not be just or proper or worthwhile to drive the respondent/plaintiff to go for further round of litigation. This Court is unable to

agree with the contentions put forth by the appellant''s side since they do not carry any merit whatsoever, and they are liable to be rejected and

accordingly rejected. The appeal in that regard has got to be dismissed.

Equally, the requests for return of documents which were handed over by the appellant to the respondent at the time of entering into the

agreement and for a direction to the to the plaintiff to receive the said sum have got be denied as rightly done by the learned Single Judge. The

appeals which have arisen from the order of the learned Single Judge, have got to be dismissed.

As regards the challenge made by the appellant against the order of the learned Single Judge in Review Application Nos. 2251 to 2253 of

2003, in view of the order passed above, this Court is unable to see any merit in the contentions put forth by the appellant''s side. At this juncture,

it is brought to the notice of the Court that the E.P. is pending. There is no impediment for the E.P. being proceeded with. Hence, there is nothing

to disturb that order of the learned Single Judge. The appeals in that regard are liable to be dismissed.

In the result, all these original side appeals stand dismissed confirming the orders of the learned Single Judge. The parties shall bear their own

costs. Consequently, connected MPs are also dismissed.