Holding

Section 28 empowers the court to extend time for compliance of a decree for specific performance, but such extension may be refused if the decree holder fails to show just and reasonable cause, as was the case here.

Summary

The appellant Bhupinder Kumar entered into a sale agreement and later sued for specific performance. The trial court decreed specific performance, directing the respondent to execute the sale deed and the appellant to pay the balance within three months. The appellant failed to deposit the balance and applied for an extension of time, which was rejected and the agreement was rescinded under Section 28 of the Specific Relief Act. The appellant appealed, arguing that the court has power to extend time and that he had sufficient cause. The Supreme Court held that while Section 28 allows the court to extend time or rescind the contract, the appellant did not demonstrate any just or reasonable cause for an extension, and therefore the lower courts' orders were correct. The appeal was dismissed.

Issues considered

Whether the court has power under Section 28 of the Specific Relief Act, 1963 to extend time for a decree holder to pay the balance amount or perform conditions of a decree for specific performance.
Whether the appellant showed sufficient and reasonable grounds to merit an extension of time.

Legislation cited

Subjects

Specific performanceSection 28Extension of timeRescission of contractDecree holderEquitySale deed

Judgment

[2009] 13 (ADDL.) S.C.R. 978

A BHUPINDER KUMAR -.>-.
V.
ANGREJ SINGH
{Civil Appeal No. 5846 of 2009)

AUGUST 28, 2009
B
[P. SATHASIVAM AND DEEPAK VERMA, JJ.]
}...

-I
Specific Relief Act, 1963: s.28- Failure of <jecree hol<;J(3r
to perform the conditions mentioned in the deqr~e of specific
c performance - Power of court to ext~n<t tim~ in his favour to
perform the conditions or order rf)sci~sion Qf agreement -
Held: s.28 gives power to the Court to extend the time to pay
the amount of perform the conditions of decree for specific
performance or order rescission of the agreement - In
.
~

~ I

D deciding application under s.28(1) Court has to see all
~
attending circumstances including conduct of the parties - On
facts, there was neither any material to show that decree ;,..
. holder had required money nor he tendered or deposited th~
same as per the terms of the decree - Courts below were
E correct in holding that there was no just and reasonable cause
to extend the time for depositing the balance consideration.

The Civil Court decreed the suit for !!pecific
performance of agreement to sale filed by the appellant..
•
~
The Court directed respondent to get the sale deed .....
F registered within three months failing which appellant
would be at liberty to get the sale deed executed and
registered through Court. The appellant did not deposit
the balance sale price within three months (Ind
respondent did not execute the sale deed, Appellant
G moved an application for extension of time to deposit the
balance of sale consideration in the court, The Civil (:
Judge dismissed the application and held that the $ale
agreement stood rescinded as cQntempJated under s.28
of Specific Relief Act. The first appellate court and High
H 978
BHUPINDER KUMAR v. ANGREJ SINGH 979

Court upheld the order of Civil Court. Hence the appeal. A
--'--
The questions which arose for consideration in the
present appeal were whether the Court has power to
extend the time in favour of a decree holder to pay the
balance amount or perform conditions as mentioned in
B
the decree for specific performance and whether the
appellant had shown sufficient and reasonable ground
for extension of time.
~
"! Dismissing the appeal, the Court
c
HELD: 1. As per the Limitation Act, the decree holder
is permitted to execute the decree within a period of
twelve years. No doubt, in the instant case , it is asserted
by th!i! appellant ~hat he sent a legal notice to the
respondent for compliance of the decree. However, the D
/A fact remains that the appellant filed an application in the
-)' Executing Court for extension of time for depositing the
balance amount in the Court as directed in the decree.
)
The Executing Court as well as the High Court proceeded
on the assumption that since the plaintiff-decree holder
E
was not able to deposit the amount as directed in the
decree dated 13.10.1998, the said decree cannot be
executed since it has no force in the eye of law. [Para 9]
.... (984-8-D]
;. F
Kumar Dhirendra Mullick and Others v. Tivoli Park
Apartments (P) Ltd. (2005) 9 SCC 262, relied on.

K. Ka/pana Saraswathi v.P. S.S. Samasundaram Chettiar
(1980) 1 sec 630, referred to.

2. Section 28 of Specific Relief Act gives power to the G
court either to extend the time for compliance of the
:) decree or grant order of rescission of the agreement.
When the court passes the decree for specific
performance, the contract between the parties is not
H
980 SUPREME COURT REPORTS [2009) 13 (ADDL.) $.C.R.

A extinguished. Sub-Section 1 of Section 28 makes it clear
that the court does not lose its jurisdiction after the grant
of decree for specific performance nor it becomes
functus officio. [Para 11] (987-B-C]

3. The order of the Executing Court and the High
8
Court cannot be faulted with. The suit for specific
performance -is il'.I the nature of discretionary remedy and
on equity, the appellant was not entitled to get the decree
executed since he failed to place relevant materials about
C his inability to tender or deposit the decreed amount. The
suit was decreed on 13.10.1998 stipulating that the
balance sale consideration was to be paid by 13.01.1999.
In fact, only after the judgment debtor filed an application
for rescission of agreement on 28.05.2001, the
application for extension of time was moved on
D 13.08.2001. There is neither any material to show that the
appellant was having the required money nor had he
tendered or deposited the same as per the terms of the
decree. Both the Executing Court and the High Court
found that there wa-s no just and reasonable cause to
E extend the time tor' depositing the balance consideration.
Due to bereft of any acceptable material for extension ·of
time, the Executing Court rightly declined to extend the
time, consequently rescinded the contract as requested
by the respondent judgment-debtor. The High Court, after
F analyzing all these aspects and finding that the decision
arrived at by the Executing Court is just and equitable,
rightly dismissed the revision. [Paras 12 and 13] (988-B-
G]
Case Law Reference:
G
c2oos) 9 sec 2s2 relied on Para 11
(1980) 1 sec 630 referred to Para 10

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H
BHUPINDER KUMAR v. ANGREJ SINGH 981

5846 of 2009. A
-""-
.
From th,e Judgment & Order dated 23.3.2007 of the High
Court of Punja\ & Haryana at Chandigarh in Civil Revision No.
2972 of 2003.

Bimal Roy Jad for the Appellant. B

Arunima Dewedi, Mary Mitzy, Anil Kaushik, Shiv Prak~sh
Pandey for the Respondent.

The Judgment of the Court was delivered by c
P. SATHASIVAM, J. 1. Leave granted.

2. This appeal is directed against the final judgment and
order dated 23.03.2007 passed by the High Court of Punjab
'.

;J. & Haryana at Chandigarh in Civil Revision No. 2972 of 2003 D
whereby the High Court dismissed the Revision and upheld the
-)':
order passed by the Executing Court.

3. The appellant entered into an agreement dated
20.11.1990 to purchase land measuring 1 kanal 14 marlas
E
situated within the Revenue Estate of Pehowa. As per the
agreement, the total sale consideration of the property was
fixed@ Rs. 3,850/- per maria. The vendor had received Rs. 1
..{
20,000 as earnest money. The sale, as per agreement, was
; to be executed and registered on or before 20.05.1991.
F
4. According to the appellant, he was always ready and
willing to perform his part of the contract. In pursuance of the
sale agreement dated 20.11.1990, he reached the office of the
Sub-Registrar, Pehowa on 20.05.1991 alongwith the balance
amount of sale consideration and expenses to get the sale G
deed executed and registered. Since 20.05.1991 was a
holiday on account of Election, the appellant again reached ·the
""~ office of Sub-Registrar, Pehowa on 21.05.1991, but the
respondent did not turn up. Subsequently, on 27.05.1991, the
appellant sent a legal notice to the respondent requesting him H
982 SUPREME COURT REPORTS (2009) 13 (ADDL.) S.C.R.

A to get the sale deed executed and registered but the
respondent again failed to do so. On 13.12.1991, the appellant 'r
feeling constrained, filed a suit for possession by way of specific
performance of agreement to sell dated 20.11.1990 vide which
the respondent had agreed to sell land measuring 1 kanal 14
B marlas. By final juagment and order dated 13.10.1998, the
Addi. Civil Judge (Sr. Division), Pehowa decreed the suit with
costs and directed the respondent to get tha sale deed
executed and registered in favour of the appellant qua the suit
property at the rate of Rs. 3,850 per maria less the amount of
c Rs. 20,000 already received by the respondent within a period
of three months failing which the appellant shall be at liberty to
get the sale deed executed and registered through court.
I
5. As the respondent failed to get the sale deed executed, t.
on 20.04.2001, the appellant moved an application for
D ~ extension of time to deposit the balance of sale price in the
Court of Addi. Civil Judge (Sr. Division), Pehowa in Execution
Petition No. 15 of 2001. By order dated 07.05.2002, the Addi.
Civil Judge (Sr. Division), Pehowa, dismissed the application
for extension of time to deposit the balance sale price and held
E that the sale agreement stood rescinded as contemplated under
Section 28 of the Specific Relief Act and consequently
dismissed the execution petition. Aggrieved by the said order,
the appellant filed a Civil Appeal No. 49 of 2002 in the Court
of District Judge, Kurukshetra. By judgment ~d brder dated
F 06.05.2003, the District Judge, Kurukshetra dismissed the
appeal as not maintainable. Feeling aggrieved, the appellant
filed Civil Revision No. 2972 of 2003 in the High Court of
Punjab & Haryana at Chandigarh. The High Court by judgment
and order dated 23.03.2007, dismissed the Revision upholding
G the order passed by the Executing Court. Questioning the said
order of the High Court, the appellant filed the present appeal
by way of special leave petition.

6. Heard Mr. Bimal Roy Jad, learned counsel for the
H appellant and Ms. Arunima Dewedi, learned counsel for the
-
f

BHUPINDER KUMAR v. ANGREJ SINGH
[P. SATHASIVAM, J.]
983

respondent. A
7. The following questions arose for consideration before
this Court:

(i) Whether the Court has power to extend the time in favour
of a decree holder to pay the balance amount/perform ,9
conditions as mentioned in the decree for specific
performance?

(ii) Whether the appellant had shown sufficient and
reasonable ground for extension of time? C

8. In order to answer the above questions, it is relevant to
know the contents of the decree granted by the original court
in Civil Suit No. 1090 of 1991. A decree for possession of the
suit land by way of specific performance was passed in favour .
0
of the plaintiff and against the defendant. The decree mandates
the defendant to execute sale deed on payment of the balance
sale price of Rs. 1,39,000/- and get it registered within a period
of three months from the date of the decree failing which the
plaintiff shall be at liberty to get the sale deed executed and
registered under Order 21 Rule 12 C.P.C. The said judgment E
and decree was passed on 13.10.1998. It appears that the
plaintiff did not deposit the balance sale price within three
months from the date of decree. Equally, the defendant did not
execute the sale deed. Thereafter, the plaintiff moved an
application on 20.04.2001 for the execution of the decree F
pleading therein that since the judgment debtor-respondent has
failed to execute the sale deed, the same be executed through
the Court and he (plaintiff) be allowed time to deposit the
balance sale price in Court. The judgment debtor-respondent
also moved an application under Section 28 of the Specific G
Relief Act, 1963 with a prayer that the agreement to sell dated
20 .11. 1990 be rescinded since the plaintiff had failed to deposit
the balance sale consideration within the time allowed by the
Court. This application was contested by the plaintiff and the
Executing Court, vide order dated 07.05.2002, allowed the H
~
}

984 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A application and rescinded the original agreement. In view of the _J..__
same, the execution application filed by the plaintiff was -lr-

dismissed. We have already mentioned that the said ?rder was
affirmed by the High court in Civil Revision.
'

B 9. As per the Limitation Act, the decree holder/ls permitted
to execute the decree within a period of twelve yea,rs. No doubt,
in the case on hand, it is asserted by the appella!lt that he sent
a legal notice to the respondent for compliance ~f the decree. 'r-
However, the fact remains that the appellant filed an application ~

in the Executing Court for extension of time for depositing the
c balance amount in the Court as directed in. the decree. The
Executing Court as well as the High Court proceeded on the
assumption that since the plaintiff-decree holder was not able
to deposit the amount as directed in the decree dated
13.10.1998, the said decree cannot be executed since it has
D no force in the eye of law. Though, the Court has power to ~ ~

extend time in favour of the decree holder to pay the amount ;.;-
as directed or perform the conditions mentioned in the decree
in the absence of plausible reasons, the Executing Court has ~

dismissed his application for extension of time and also·
E allowed the application filed by the judgment debtor for
rescission of the contract under Section 28 of the Act. Let us
consider the entire Section 28 of the Act:-
,.,_ ,_I
"28. Rescission in certain circumstances of contracts for
~
F the sale or lease of immovable property, the specific
perfonnance of which has been decreed. -

(1) Where in any suit a decree for specific performance I
,'

of a contract for the sale or lease of immovable property
has been made and the purchaser or lessee does not, .~
G within the period allowed by the decree or such further t>-
period as the court may allow, pay the purchase money )t-
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
H such application the court may, by order, rescind the ,l
BHUPINDER KUMAR v. ANGREJ SINGH 985
[P. SATHASIVAM, J.]

--l --
contract either so far as regards the party in default or A
altogether, as the justice of the case may require.

-i
(2) Where a contract is rescinded under sub-section (1),
the Court-

(a) shall direct the purchaser or the lessee, if he has B
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 c
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 the lessee as earnest money or deposit in D
connection with the contract.
-· (3) If the purchaser or lesse"-· pays the purchase money or
other sum which he is ordL1 ad 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 E
purchaser or lessee such further relief as he may be
entitled to, including in appropriate cases all or any of the
..(
following reliefs, namely:-
J- (a) the execution of a proper conveyance or lease by the F
vendor or lessor;

(b) the delivery of possession, or partition and separate
possession, of the property on the execution of such
conveyance or lease.
/
G
(4) No separate suit in respect of any relief which may be
-.I..
.. ( 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 H
\·.
986 SUPREME COURT REPORTS (2009) 13 (ADDL.)S.C.R.

A be in the discretion of the court"
-..rft'
10. These provisions have been interpreted by this Court .
in various decisions. In K. Kalpana Saraswathi v. P.S.S.
Somasundaram Chettiar, (1980) 1 SCC 630, this Court has
held that the court has power under Section 28 of the Act to
8
extend time for making deposit. The following conclusion in
para 4 is relevant:-

"lt is perfectly open to the court in control of a suit for~if
specific performance to extend the time for deposit, and ·
c this Court may do so even now to enable the plaintiff to
get the advantage of the agreement to sell in her favour.
The disentitling circumstances relied upon by the
defendant-respondent are offset by the false pleas raised
in the course of the suit by him and rightly negatived. Nor
D are we convinced that the application for consideration and t!~
extension of time cannot be read, as in substance it is, a 1 ,.\~
petition for more time to deposit. Even so, specific ·-
performance is an equitable relief and he who seeks
equity can be put on terms to ensure that equity is done
E to the opposite party even while granting the relief. The
final end of law is justice, and so the means to it too should
be informed by equity. That is why he who seeks equity
shall do equity. Here, the assignment of the mortgage is ·~
not a guileless discharge
I
of the vendor's debt as implied ·
F in the. agreement to sell but a disingenuous disguise to arm ~-
herself with a mortgage decree to swallow up the property
in case the specific performance litigation misfires. To
sterilise this decree is necessary. equity to which the
appellant must submit herself before she can enjoy the
fruits of specific performance. n
G
It is clear that the decree is in the nature of preliminary decre.e "l)µl
and the suit would continue and be under the control of t~e :.," ~
Court till either party moves for passing final decree. It is.als~
clear that though the court has power to extend time and it is
H
BHUPINDER KUMAR v. ANGREJ SINGH 987
[P. SATHASIVAM, J.J

.. ""Yne duty of the court to apply the principle of equity to both
parties.
A

11. In Kumar Dhirendra Mullick and Others v. Tivoli Park
Apartments (P) Ltd. (2005) 9 SCC 262, this Court, after
analyzing earlier decisions, has concluded that when the court 8
passes the decree for specific performance, the contract
~etween the parties is not extinguished. The court does not lose
1~s jurisdiction after the grant of the decree for specific
performance nor does it become functus officio. The decree
for specific performance is in the nature of a preliminary decree, C
and the suit is deemed to be pending even after the grant of
such decree. Hence, the Court retains control over the entire
matter even after the decree. Section 28 gives power to grant
order of rescission of the agreement which itself indicates that
Ull the sale deed is executed, the Trial Court retains its power
~d jurisdiction to deal with the decree of specific performance. D
Therefore, the court has the power to enlarge the time in favour
1
of the decree-holder to pay the amount or to perform the
conditions mentioned in the decree for specific performance.
It is clear that Section 28 gives power to the court either to
extend the time for compliance of the decree or grant order of Ii
rescission of the agreement. These powers are available to the
l(rial Court which passes decree of specific performance. In
other words, when the court passes the decree for specific
~erformance, the contract between the parties is not
extinguished. To put it clear that the decree for specific F
performance is in the nature of preliminary decree and the suit
is deemed to be pending even after the decree. Sub-Section
1 of Section 28 makes it clear that the court does not lose its
jurisdiction after the grant of decree for specific performance
nor it becomes functus officio. On the other hand, Section 28 G
g~es power to the Court to grant order of rescission of the
.. agteement and it has the power to extend the time to pay the
amount or perform the conditions of decree for specific
performance despite the application for rescission of the
• agreement/decree. In deciding application under Section 28 (1) H
"'
988 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A · of the Act, the Court has to see all attending circumstances+ ·
including the conduct of the parties.

12. If we apply the above principles to the facts of the
-
present case, the order of the Executing Court and the High
Court cannot be faulted with. The suit for specific performance
8
is in the nature of discretionary remedy and on equity, the
appellant was not entitled to get the decree executed since he
failed to place relevant materials about his inability to tende~)..
or deposit the decreed amount. It is relevant to mention that the
sale agreement was executed on 20.11.1990, the suit for
C specific performance was filed on 13.12. 1991 and suit was
decreed on 13.10.1998 stipulating that the balance sale
consideration was to be paid by 13.01.1999. In fact, only after
the judgment debtor filed an application for rescission of
agreement on 28.05.2001, the application for extension of time).
P was moved on 13.08.2001. As discussed earlier, though th~_
Court has power and discretion to extend the time for fulfillment
of the contract, in the case on hand, there is neither any material
to show that the appellant was having the required money nor
had he tendered or deposited the same as per the terms of
E the decree. Both the Executing Court and the High Court found
that there was no just and reasonable cause to extend the time
for depositing the balance consideration. ):.

13. In the circumstances and the materials placed, wear~
f satisfied that due to bereft of any acGeptable material for
extension of time, the Executing Court rightly declined to extend
the time, consequently rescinded the contract as requested by
the respondent judgment-debtor. The High Court, after analyzing
all these aspects and finding that the decision arrived at by the
Executing Court is just and equitable, dismissed the revision.
G We are in entire agreement with the said conclusion.
Consequently, the appeal fails and the same is dismissed. (

D.G. Appeal dismis.sed.