When court can extend time for deposit of balance consideration in suit for specific performance of contract?

 The   Hon'ble   Supreme   Court   in  Sardar   Mohar   Singh
(supra) has held that under provisions of Section 28(1) of the said
Act, after the decree for specific performance is passed, the Court
does not lose its jurisdiction nor does it become functus officio. Till
the period the sale deed is executed in execution of the decree, the
trial Court retains its powers and jurisdiction to deal with the
decree.  The Court has the power to enlarge the time despite an
application for rescission of the decree being filed by the judgment
debtor.  The prayer for extension of time is distinct from a prayer
for condonation of delay. In the aforesaid case, the delay of about
seven and half years was extended for complying with the decree
of specific performance.
In the light of the aforesaid legal position, if the facts
of   the   present   case   are   considered,   it   can   be   seen   that   the
respondents had applied for certified copy on 7-­1­2-012.  The same
was received on 13­-4­-2012. Immediately thereafter on 19­-4-­2012,
the application for enlargement of time came to be moved.  While

considering this application, the trial Court found that though the
said application was filed under Section 148 of the Code, it would
be treated as an application seeking extension of time to deposit
the balance consideration.   The application was treated as one
filed under Section 28 of the said Act.   In para 21 of its order, the
trial   Court   has   found   the   reasons   mentioned   therein   to   be
justifiable,   bonafide   and   convincing.     If   the   application   for
extension of time  to deposit balance consideration is to be treated
differently from an application for condontation of delay and if
within   a   short   period   from   receiving   certified   copy,   such
application for extension of time had been moved, I do not find
that by accepting the prayer for extension of time the trial Court
acted in any manner contrary to law.  The trial Court not having
become  functus officio  it acted within its jurisdiction in allowing
the application moved by the respondents.
10. Though   the   learned   Counsel   for   the   petitioner   is
justified in submitting that the knowledge of the decree ought to
be   attributed   to   the   parties   on   the   day   the   judgment   is
pronounced, in the facts of the present case when the time of two
months   was   granted   to   make   the   balance   payment   and   the
application for extension was moved within a period of a month
and half thereafter, it cannot be said that in this situation there

was any deliberate delay on the part of the respondents in seeking
extension   of   time   to   deposit   the   balance   consideration.   The
discretion in that regard was rightly exercised by the trial Court
especially when it did not lose seisin of the matter.   The judgment
of the learned Single Judge in Bhujangrao Ganpati (supra) cannot
be relied upon in the light of the subsequent judgment of the
Hon'ble   Supreme   Court   in  Sardar   Mohar   Singh   (supra).   The
judgments   relied   upon   by   the   learned   Senior   Counsel   for   the
respondents support his submissions.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6716 OF 2015
M/s   Armor's   Developers   Pvt.   Ltd., V  Smt.   Asha   W/o   Rajendra   Paigwar,

           CORAM: A.S. CHANDURKAR, J.
                            DATED:  11th  AUGUST,  2016.
Citation:2017(2) MHLJ 324

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Whether court can rescind contract as per S 28 of specific relief Act if decree holder fails to deposit balance consideration?

 In the case of Chanda (supra) though there was no specific direction of the Trial Court to the decree holder to pay the sale consideration within a particular time but the conduct of the decree holder in not depositing the amount for a long six years was held to be full of mala fide. The contention of the plaintiff that there was no specific direction given to the plaintiff to deposit the balance sale consideration within the stipulated period was not found justified. The direction of the Trial Court was to execute the sale-deed within two months from the date of the decree on payment of balance of sale consideration. It was held that the payment of balance sale consideration was a condition precedent for execution of the sale-deed. It was implicit in the direction that the decree holder was required to deposit the balance consideration in the first instance and it was only then the judgment debtors were required to execute the sale-deed. Since the decree holder did not deposit the balance amount, the order of the Trial Court in rescinding the original contract was found perfectly in order.

Equivalent Citation: AIR2015All180, 2015(6) ALJ 27, 2015 (111) ALR 889, 2015 129 RD144,AIR 2015 ALLAH180

IN THE HIGH COURT OF ALLAHABAD

Writ-C No. 57407 of 2008

Decided On: 26.05.2015

Radhey Shyam and Ors. Vs.  Harendra Pal Rathi

Hon'ble Judges/Coram:Sunita Agarwal, J.

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