Case Note & Summary
The case involves a First Appeal filed by defendant no.1(iii), a legal heir of original defendant no.1, challenging a decree for specific performance of contract passed by the 4th Joint Civil Judge (Sr.Dn.), Nagpur on 18.12.2006 in Special Civil Suit No.302 of 1992. The trial court directed the plaintiff (respondent no.1 herein) to pay the balance consideration of Rs.4,15,000/- within three months from the date of decree, i.e., by 18.3.2007. The plaintiff did not deposit the amount within that period. Consequently, the legal heirs of defendant no.1, including the appellant, filed an application under Section 28 of the Specific Relief Act, 1963 (MJC No.2318 of 2009) seeking rescission of the contract or other relief. The trial court, however, extended the time for deposit. The appellant failed to deposit the amount within the extended period as well. The appeal was filed on 21.2.2008 and admitted on 27.11.2008. The court heard the counsel for the appellant and the respondent. The court noted that the appellant did not deposit the balance consideration within the extended time and therefore dismissed the appeal.
Headnote
A) Specific Relief Act - Section 28 - Deposit of Balance Consideration - Extension of Time - The plaintiff was required to deposit balance consideration of Rs.4,15,000/- within three months from the decree date. The plaintiff failed to deposit within the stipulated period. The defendants filed an application under Section 28 of the Specific Relief Act, 1963. The trial court extended the time for deposit. The appellant did not deposit the amount within the extended period. Held that the appeal is dismissed as the appellant failed to comply with the order. (Paras 2-4)
Issue of Consideration
Whether the appellant is entitled to relief against the decree for specific performance when the plaintiff failed to deposit the balance consideration within the time granted by the trial court.
Final Decision
Appeal dismissed. The appellant failed to deposit the balance consideration within the extended period granted by the trial court.
Law Points
- Specific performance
- Section 28 Specific Relief Act
- 1963
- Deposit of balance consideration
- Extension of time
- Dismissal for non-compliance
Case Details
2010 LawText (BOM) (01) 217
First Appeal No.1369 of 2008
Mr. Uday Dastane for appellant, Mr. S.S. Voditel for respondent no.1
Dinesh Jaswantrao Morghade
Randhir @ Ranjit Bhiwaji Shambharkar and others
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Nature of Litigation
First Appeal against decree for specific performance of contract
Remedy Sought
Appellant sought to challenge the decree for specific performance and sought rescission or other relief under Section 28 of the Specific Relief Act, 1963
Filing Reason
Appellant, as legal heir of original defendant no.1, challenged the decree for specific performance passed by the trial court
Previous Decisions
Trial court passed decree for specific performance on 18.12.2006 in Special Civil Suit No.302 of 1992, directing plaintiff to pay balance consideration of Rs.4,15,000/- within three months. Plaintiff failed to deposit within time. Defendants filed application under Section 28 of Specific Relief Act, 1963. Trial court extended time for deposit.
Issues
Whether the appellant is entitled to relief against the decree for specific performance when the plaintiff failed to deposit the balance consideration within the time granted by the trial court.
Submissions/Arguments
Appellant argued that the plaintiff did not deposit the balance consideration within the stipulated period and sought rescission of contract.
Respondent no.1 (plaintiff) opposed the application and sought extension of time.
Ratio Decidendi
The appellant, having failed to deposit the balance consideration within the extended time granted under Section 28 of the Specific Relief Act, 1963, is not entitled to any relief. The appeal is dismissed.
Judgment Excerpts
This First Appeal has been preferred by defendant no.1 (iii) who is the legal heir of Original defendant no.1 challenging the decree for specific performance of contract passed by learned 4th Joint Civil Judge (Sr.Dn.), Nagpur on 18.12.2006 in Special Civil Suit No.302 of 1992.
In terms of the aforesaid decree passed by the trial Court, the plaintiff, who is defendant no.1 in the present appeal, was required to pay balance amount of consideration of Rs.4,15,000/- within a period of three months from the date of decree i.e. 18.12.2006. The period of three months expired on 18.3.2007. Undisputedly, the plaintiff did not deposit this amount within the period of three months and hence, the legal heirs of defendant no.1 including the present appellant filed an application u/s. 28 of the Specific Relief Act being MJC No.2318 of 2009.
Procedural History
Trial court passed decree for specific performance on 18.12.2006. Plaintiff failed to deposit balance consideration within three months. Defendants filed application under Section 28 of Specific Relief Act, 1963. Trial court extended time. Appellant filed First Appeal on 21.2.2008, admitted on 27.11.2008. Appeal dismissed on 6.1.2010.
Acts & Sections
- Specific Relief Act, 1963: 28
