V.P. Sameera Usman vs E.C. Mammed Alias Cheriya Mammed

Thomas P. Joseph, J.—Petitioner sued respondents in O.S. No. 1 of 2010 of the court of learned Sub Judge, Koyilandy for a decree for specific performance of an agreement for sale dated 19.09.2009 where the sale consideration was agreed as Rs. 51 lakhs. Petitioner claimed that pursuant to the agreement Rs. 20 lakhs was paid to the respondent as advance sale consideration. Respondent admitted plaint claim and that resulted in Exts.P1 and P1(a), judgment and decree dated March 16, 2010. The court directed petitioner to deposit the balance sale consideration within one month (from the date of judgment and decree). Petitioner could not deposit the amount within the aforesaid time and filed I.A. No. 790 of 2010 on 17.07.2010 requesting that time for deposit of balance sale consideration may be extended till 15.08.2010 or any other appropriate date the court deems fit. That application did not find favour with the learned Sub Judge and it resulted in a dismissal on 10.08.2010. That order is under challenge in this Writ Petition.

Notice on the petition was served on respondent but, he has not responded.

Learned Counsel for petitioner contends that court below has erroneously dismissed Ext.P2, application in spite of showing sufficient reason which justified failure of petitioner to deposit the amount within the time stipulated by judgment and decree.

In the affidavit in support of Ext.P2, application petitioner has stated that though judgment and decree were passed on March 16, 2010, she got certified copy of the same only by May 10, 2010 and then only she learnt about the stipulation in the judgment and decree as to the time for deposit of balance sale consideration. Her husband was abroad and immediately she contacted him but he could not come back on the expected date due to unavoidable reasons and hence petitioner could not make up the amount to be deposited in court in time. In the affidavit petitioner expressed her willingness to deposit the balance amount and requested that time may be extended upto 15.08.2010 or such other day the court deemed fit.

Learned Sub Judge has dismissed Ext.P2, application vide Ext.P3, order in the following way:

Heard. No sufficient ground. Moreover this petition is also filed long after the prescribed time. Hence petition is dismissed.

Learned Counsel for petitioner states that respondent had not preferred any objection to Ext.P2, application. I must bear in mind that in the Writ Petition inspite of service of notice respondent has not appeared to contest the case. Total sale consideration payable as per agreement is Rs. 51 lakhs out of which it is not disputed by respondent also that Rs. 20 lakhs was paid as advance and what remained is only Rs. 31 lakhs. Having paid Rs. 20 lakhs by way of advance there is no reason to think that petitioner was not willing to pay the balance amount and get the sale deed executed. She has stated cogent reasons for non-deposit of the amount within one month from the date of judgment and decree. This Court in various decisions has pointed out that even after the expiry of time fixed by the decree, it is well within the power of the Court to extent time for deposit of the amount in view of Section 28 of the Specific Reliefs Act (for short, "the Act"). In Chitambaran v. Viswambaran 2000 (2) KLT 128 it has been held that the power to extent time is inbuilt in Section 28 of the Act and therefore it cannot be heard to contend that there is bar on the part of court to extent time. Yet another decision is Vijayan Vs. Vivek, where also it has been held that time for deposit of amount can be extended even after expiry of the time stipulated in the decree. Hence it is not as if the application was preferred after the time fixed by decree expired was not maintainable or the court had no power to extend time. In this case decree provided one month''s time from the date of decree (1603.2010) to deposit the balance sale consideration and ExtP2, application was filed on 17.07.2010. Respondent had not in the meantime applied for recession of the contract. In these circumstances learned Sub Judge was not correct in dismissing Ext.P2, application. I find no reason why reason stated by petitioner should not be accepted. I accept the explanation given by the petitioner.

Resultantly, this Writ Petition is allowed in the following lines:

i. Ext.P3, order is set aside and, consequently dismissal of I.A. No. 790 of 2010 in O.S. No. 1 of 2010 of the court of learned Sub Judge, Koyilandy is also set aside.

ii. I.A. No. 790 of 2010 is allowed and taking into account pendency of the Writ Petition petitioner is granted time till 05.10.2010 to deposit the balance amount as directed in Exts.P1 and P1(a), judgment and decree.