Supreme Court: In a case where the Trial Court as well as the Telangana High Court had condoned the delay of 853 days after the plaintiff explained that he initially fell sick with Jaundice and was later confined to house with High Blood Pressure, Diabetes and other diseases, the bench of MR Shah* and CT Ravikumar, JJ has set aside the orders of the Trial Court and the High Court after observing that the application filed by the plaintiff under Section 148 CPC and Section 28 of the Specific Relief Act, 1963 seeking extension of time to deposit the balance sale consideration was “hopelessly delayed” and that the explanation given by the plaintiff can hardly be said to be a sufficient explanation.
The case at hand dealt with Specific Performance of the agreement to sell a suit property. While decreeing the suit, the trial Court directed the plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- within two weeks i.e. on or before 21.10.2013. However, the plaintiff failed to pay/deposit the balance sale consideration as ordered by the trial Court. After a period of 853 days from the date of judgment and decree dated 12.10.2013 passed by the trial Court, the plaintiff filed an application before the trial Court under Section 148 of the CPC and Section 28 of the Specific Relief Act, and prayed for extension of time to deposit the balance sale consideration which the plaintiff was required to deposit.
Explaining the delay of 853 days, the plaintiff submitted that he became sick with Jaundice and was treated in the hospital from 1.11.2013 to 5.1.2014. Thereafter and after his discharge he was also confined to house with High Blood Pressure, Diabetes and other diseases which were supported by the medical record. The trial Court accepted the explanation and extended the time and directed the plaintiff to deposit/pay the balance sale consideration of Rs. 15,00,000/- with interest @ 18% per annum. The same was confirmed by the High Court.
When the matter travelled to the Supreme Court, the plaintiff argued that the order passed by the trial Court in an application under Section 148 CPC and Section 28 of the Specific Relief Act is discretionary in nature and when the trial Court had exercised its discretion in favour of the plaintiff and thereafter when the revision applications have been dismissed by the High Court, the same may not be interfered with by the Supreme Court.
The Supreme Court, however, noted that nothing on record showed that any steps were taken by the plaintiff either to deposit/pay the balance sale consideration of Rs. 15,00,000/-, or even calling upon the defendant to execute the sale deed as per the judgment and decree passed by the trial Court dated 12.10.2013 till the application under Section 148 CPC and Section 28 of the Specific Relief Act was filed with a huge delay of 853 days, seeking extension of time to deposit the balance sale consideration.
The Court also observed that the explanation which was given by the plaintiff can hardly be said to be a sufficient explanation as to why the plaintiff did not pay the balance sale consideration as per the judgment and decree or even did not make an application within a reasonable time under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time for making payment.
“If the plaintiff was ready with the money payable towards the balance sale consideration, he could have got the sale deed executed through power of attorney after effecting deposit/payment. In absence of any sufficient explanation, such a huge delay of 853 days ought not to have been condoned by the trial Court.”
Observing that the power under Section 28 of the Specific Relief Act is discretionary and the Court has to pass an order as the justice may require, the Supreme Court held that the trial Court erred in exercising the discretion in favour of the plaintiff and erred in extending the time in favour of the plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- by condoning the huge delay of 853 days, which as has not been explained sufficiently at all. Further, the High Court also erred in confirming the same and dismissing the revision applications.
Hence, the order passed by the trial Court allowing the application of the plaintiff seeking extension of time to deposit the balance sale consideration deserves to be dismissed. However, at the same time, to strike the balance between the parties, the Court directed that the amount of Rs. 8,00,000/- paid by the plaintiff as an advance is to be returned to the plaintiff with 12% interest per annum from 13 9.5.2012 till the actual payment, within a period of six weeks from today, failing which it shall carry interest @ 18% per annum.
[P. Shyamala v. Gundlur Masthan, 2023 SCC OnLine SC 184, decided on 24.02.2023]
*Judgment authored by: Justice MR Shah;
Advocates who appeared in this case :
For Plaintiff: Advocate Harshit Tolia;
For Defendant: Advocate Mithun Shashank.