- (1.) Charanjeet petitioner has filed this civil revision petition against Rajesh Kumar etc. respondents under Article 227 of the Constitution of India for setting aside the impugned order dated 31.7.2014 (Annexure-P. 1) passed by the learned Additional Civil Judge (Senior Division), Chandigarh, vide which the application filed by the petitioner/defendant No. 2 under Section 28 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') for recession of the agreement to sell dated 29.7.2005 has been dismissed and has allowed respondents No. 1 and 2 to deposit the balance sale consideration beyond the time provided for as per the judgment and decree dated 12.12.2012. I have heard learned counsel for the petitioner and have gone through the record.
(2.) Learned counsel for the petitioner argued that the application filed under Section 28 of the Act for recession of the agreement to sell dated 29.7.2005 filed by the JD/petitioner has been wrongly dismissed and the Court cannot grant time without being satisfied itself for satisfactory explanation. A perusal of the impugned order shows that the suit filed by the plaintiff for specific performance of agreement to sell was decreed vide judgment dated 12.12.2012. The plaintiffs were held entitled to specific performance of agreement to sell dated 29.7.2005 and the defendants were directed to execute the sale deed in favour of the plaintiffs after receiving balance sale consideration within three months from that day, in terms of agreement to sell. The defendants were also restrained from selling, alienating, mortgaging or creating any charge over the house in question. A perusal of the relief clause on issue No. 6 shows that there is no specific order to deposit the sale consideration within three months in the Court. Rather, the defendants have been directed to execute sale deed in favour of the plaintiffs after receiving the balance sale consideration within three months. There is no evidence on record of any type that the defendants ever asked for execution of the sale deed. Secondly, it is in the reply to the application that the defendants have already filed an appeal against this judgment. Further more, there is no default clause in this judgment that if the amount was not deposited within three months, then the suit will be treated as dismissed or agreement will be treated as rescinded etc. The Court vide the impugned order after discussing the law held that the Court has discretion to extend the time and the Court extended the time and this application filed under Section 28 of the Act has been dismissed. Section 28 of the Specific Relief Act, 1963 states as under:- "28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.- (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or 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 lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the court- (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchase or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:- (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the properly on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this section shall be in the discretion of the court."
(3.) A perusal of the provisions of Section 28 of the Act itself show that the agreement can be rescinded under Section 28 of the Act if the purchaser or lessee does not within the period allowed by the decree or such period as the Court may allow pay the purchase money or other sum which the Court has ordered him to pay. The Court in its discretion has correctly extended the period. In Bhupinder Kumar v. Angrej Singh, 2009 8 SCC 766 , the Hon'ble Supreme Court has held that under Section 28 the Court has power to extend time for payment. In that case, the final judgment was passed on 13.10.1998 and the 'time of three months was granted but the respondent failed to get the sale deed executed and on 20.04.2001, the appellant moved an application for extension of time i.e. after more than 21/2 years, which is not the case in the present case in hand.;