Jindal Paper and Plastics and anr. Vs. Union of India (Uoi) and anr. - Court Judgment

Excerpt:
- sections 28 & 10:[p. sathasivam & deepak verma, jj] rescission of contract for sale/lease of immovable property after decree of specific performance, or, grant of extension of time matters to be considered held, section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. these powers are available to the trial court which passes the decree of specific performance. thus, when court passes decree for specific performance, contract between parties is not extinguished. decree for specific performance is in the nature of a preliminary decree and suit is deemed to be pending even after the decree. section 28(1) makes it clear that the court does not lose its jurisdiction after grant of decree for specific performance nor does it becomes functus officio. in deciding an application under section 28(1) of the act, the court has to see all the attending circumstances including the conduct of the parties. suit for specific performance is in the nature of a discretionary remedy and on equity, appellant was not entitled to get the decree executed since he failed to place relevant materials about his inability to tender or deposit the decreed amount within time,. though the court has power and discretion to extend time for fulfilment of contract, in the case on hand, there is neither any material to show that appellant was having 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 was no just and reasonable cause to extend time for depositing the balance consideration, in the absence of any acceptable material for extension of time, executing court rightly declined to extend time, and consequently rescinded the contract. the high court, after analyzing all these facts and finding that decision arrived at by the executing court, was just and equitable dismissed the revision. the supreme court is in agreement with this conclusion. - 1994ecr637(sc) .this judgment was delivered on 18th october, 1994. the same issue was thereafter referred to a larger bench and the larger bench came to the conclusion, on 20th december, 1996, that the judgment in kasinka trading was good law.orders.p. bharucha and k. venkataswami, jj.1. special leave granted. 2. the principal issue is covered against the appellants by the judgment of this court in kasinka trading and anr. etc. v. union of india and anr. : 1994ecr637(sc) . this judgment was delivered on 18th october, 1994. the same issue was thereafter referred to a larger bench and the larger bench came to the conclusion, on 20th december, 1996, that the judgment in kasinka trading was good law. 3. it is argued on behalf of the appellants that, nonetheless, the award of interest at the rate of 17.5% per annum from the date the duty became payable till it was paid or recovered was uncalled for in view of the fact that the point of law had remained undecided at least until 18th october, 1994. reference was made to the judgment of this court in kashyap zip industries v. union of india : 1993(64)elt161(sc) where, in somewhat similar circumstances, the rate of interest was reduced to 12% per annum. 4. we are of the view that there was uncertainty about the law until the decision in the case of kasinka trading was rendered on 18th october, 1994, and that, therefore, interest from the date it became payable until 18th october, 1994, should be payable at the rate of 12% per annum. interest for the further period should be at the rate of 17.5 % per annum, as ordered by the high court. calculations shall be made accordingly and the balance and interest as aforesaid due by the appellants shall be paid to the respondents within 8 weeks. 5. the appeals are allowed to the aforesaid extent. there shall be no order as to costs.

Judgment:
ORDER

S.P. Bharucha and K. Venkataswami, JJ.

1. Special leave granted.

2. The principal issue is covered against the appellants by the judgment of this Court in Kasinka Trading and Anr. etc. v. Union of India and Anr. : 1994ECR637(SC) . This judgment was delivered on 18th October, 1994. The same issue was thereafter referred to a Larger Bench and the larger Bench came to the conclusion, on 20th December, 1996, that the judgment in Kasinka Trading was good law.

3. It is argued on behalf of the appellants that, nonetheless, the award of interest at the rate of 17.5% per annum from the date the duty became payable till it was paid or recovered was uncalled for in view of the fact that the point of law had remained undecided at least until 18th October, 1994. Reference was made to the judgment of this Court in Kashyap Zip Industries v. Union of India : 1993(64)ELT161(SC) where, in somewhat similar circumstances, the rate of interest was reduced to 12% per annum.

4. We are of the view that there was uncertainty about the law until the decision in the case of Kasinka Trading was rendered on 18th October, 1994, and that, therefore, interest from the date it became payable until 18th October, 1994, should be payable at the rate of 12% per annum. Interest for the further period should be at the rate of 17.5 % per annum, as ordered by the High Court. Calculations shall be made accordingly and the balance and interest as aforesaid due by the appellants shall be paid to the respondents within 8 weeks.

5. The appeals are allowed to the aforesaid extent. There shall be no order as to costs.