01 November 2004
Supreme Court


Case number: C.A. No.-007234-007234 / 1999
Diary number: 17426 / 1999
Advocates: Vs PAREKH & CO.



CASE NO.: Appeal (civil)  7234 of 1999

PETITIONER: Kumar Dhirendra Mullick & Others

RESPONDENT: Tivoli Park Apartments (P) Ltd.

DATE OF JUDGMENT: 01/11/2004




       This civil appeal, by grant of special leave, arises  out of judgment and order dated 10.6.1999 of the High  Court of Calcutta in FMA No.37 of 1997 allowing the  appeal of the respondent herein and setting aside the  order of 2nd Assistant District Judge, Alipore, Calcutta,  rescinding the agreement dated 16.8.1980 under section  28 of the Specific Relief Act, 1963 (hereinafter referred  to as "the 1963 Act").  

       Briefly, the facts are as follows.  Appellants herein  are the Trustees of the Trust Estate of Raja Rajendra  Mullick Bahadur owning suit premises bearing nos.     225B and 225C, Lower Circular Road, Calcutta with  eight cottages and a main building, more particularly  described in the schedule annexed to the lease dated  25.11.1960 executed by the Trustees in favour of Mohd.  Ismail for 21 years commencing from 1.5.1960.

       Some of the relevant terms and conditions of the  said lease are as follows:\027 "(i)    The lessee, i.e. Mohammad Ismail,          would  pay  monthly  rent at the          rate    mentioned  in   the said          lease;

(ii)    The lessee would pay the entire          occupiers’      share    of      Corporation          rates   and taxes;

(iii)   The lessee would be entitled to sublet  all or any portion of the demised  premises.  The lessee would,  however, be liable for regular  payment of rents and for due  observance and performance of the  terms and conditions of the lease  agreement;

(iv)    Upon the expiration or sooner  determination of the lease, the lessee  would be obliged to deliver quietly  and peaceful possession of the  property to the lessors;

(v)     The lessee would not do or suffer to



be done anything in or upon the said  property or any part thereof that may  cause nuisance or annoyance to the  lessors or the other tenants of the  adjoining premises;

(vi)    The lease would take effect  retrospectively from Ist May, 1960  and would be for a period of 21 years  i.e.  up to Ist May, 1981.

(vii)   The lease would come to an end in the  event of the rents being in arrear for  two months after the due date or in  case of breach of any of the covenants  of the lease agreement."

       Subsequent to the grant of the above lease, the said  Mohd. Ismail executed a deed of assignment dated  20.8.1970 and assigned the suit premises to the  respondent \026 decree holder for the unexpired period and  was subject to the terms and conditions contained in the  lease.  In the premises, the respondent herein was entitled  to remain in possession of the said premises up to  1.5.1981 when the said lease was due to expire.  

       Before expiry of the lease, on 16.8.1980, an  agreement was entered into by the then Trustees and the  respondent \026 decree holder to the effect that terms and  conditions of the said lease would be extended/renewed  in favour of the said respondent for a further period of 70  years from 1.5.1981 on payment of increased rent of  Rs.30,000/- per month plus premium of Rs.30 lacs.   Respondent herein paid Rs.4 lacs being part of the total  premium of Rs.30 lacs agreed to be paid at the time of  the execution of the Transfer Deed.

       Since the Trustees failed to execute the deed,  respondent herein filed Title Suit No.176 of 1981 in the  Court of Assistant District Judge, Alipore, Calcutta  (hereinafter referred to as "the trial Court") for specific  performance of the agreement dated 16.8.1980.  On  25.7.1985, the said suit was decreed.   

       In the said suit, the defendant-Trustees, made an  application under Order IX Rule 13 CPC for recall of the  decree.  This application was not pursued, hence, it got  dismissed.  An appeal was also filed, however, the same  was dismissed.

       To complete the chronology of events, it may be  mentioned, that, the Trustees had instituted suit no.87/81  which got dismissed for non-prosecution.   

       On 3.10.1994, the Trustees - appellants herein,  moved an application under section 28(1) of the 1963 Act  read with section 151 CPC.  It was alleged that there was  a  collusion  between the two trustees and respondent;  that the said two Trustees had alone agreed to renew the  lease dated 25.11.1960 for a further period of 70 years;  that these two Trustees received Rs.4 lacs from the  respondent; that they did not account for it; that on  23.12.1980 they approved draft deed; that the said draft  was in connection with renewal of lease for 70 years on



payment of premium of Rs.30 lacs and increased monthly  rent of Rs.30,000/- on and from 1.5.1981; that the said  Trustees had  no authority to act on behalf of the said  Trust; and, therefore, the agreement for renewal was null  and void and not binding on the estate.  It was further  alleged  that title suit No.176/81 was a counterblast to  suit no.87/81; that even after passing of the decree dated  25.7.1985 in the title suit no.176/81, the respondent did  not tender the deed to be executed by the Trustees nor did  it tender the rent for nine years; that the respondent even  failed to pay the balance premium of Rs.26 lacs as  agreed.  That the respondent was earning income by  letting out premises for marriages etc. In the  circumstances, it was alleged that the respondent herein  was not ready and willing to discharge its obligations  under the decree dated 25.7.1985.  Hence, it was  submitted that contract dated 16.8.1980 be rescinded and  the decree dated 25.7.1985 in suit no.176/81 be recalled.

       By reply dated 21.2.1995, the respondent herein  alleged that the Trustees were avoiding the decree under  various pretexts.  In this connection, it was pointed out  that the decree for specific performance was passed on  25.7.1985 in title suit no.176/81; that the said decree was  an ex-parte decree and, therefore, the said Trustees  moved an application under Order IX Rule 13 CPC  which was also dismissed.  That,  being  aggrieved,       the Trustees carried the matter in appeal, which was also  dismissed.  In the circumstances, it was alleged that the  trustees had repeatedly tried to avoid the decree.  Having  failed to have the decree set aside, the trustees now opted  for its rescission.  It was further alleged that the  respondent was repeatedly assured of the execution of the  lease.  In this connection, there were negotiations  between the parties.  At the insistence of the Trustees the  respondent did not put the decree in execution.  In the  circumstances, it was submitted that the respondent was  always ready and willing to perform its obligations under  the agreement dated 16.8.1980 and that there was no  intention on the part of the respondent to abandon the  contract.  In the written statement, the respondent further  alleged that on 1.12.1994, the Trustees attempted to lease  out the suit premises to one Dilip Kankaria and Smt.  Sudha Kankaria.  In this connection, the Trustees moved  the High Court and obtained permission to transfer the  suit premises without notice to the respondent herein.   Being aggrieved, the respondent herein applied for  setting aside the leave.  By order dated 16.12.1994, the  Division Bench of the High Court stayed the above  permission on the condition of deposit of Rs.50 lacs.  In  the circumstances, the respondent submitted that it was  ready and willing to perform its obligations under the  decree.  In the circumstances, the respondent herein  submitted that the application filed by the Trustees for  rescission of the contract dated 16.8.1980 be dismissed.    

       By order dated 31.7.1996, the trial Court rescinded  the agreement dated 16.8.1980 and also recalled the  decree dated 25.7.1985.  

       By order dated 31.7.1996, the trial Court held that  under the terms and conditions of the agreement dated  16.8.1980, the respondent had to pay Rs.30 lacs to the  Trust at the time of renewal of the lease i.e. by  24.10.1985 and since the respondent had failed to pay the



said amount within the stipulated period, the respondent  herein was not entitled to the said renewal.  Further, the  said respondent had failed to pay the arrears of rent  amounting to Rs.39 lacs towards rent.  In the  circumstances, according to the trial Court, the  respondent herein was not ready and willing to perform  its obligations under the decree.  The trial Court observed  that under section 28(1) of the 1963 Act, the Court had  unlimited and unfettered power to grant extension but has  no power to condone the delay, if the period for  complying with the terms and conditions stood expired.   According to the trial Court, the date of payment of the  premium of Rs.30 lacs expired on 24.10.1985 and  consequently, the respondent herein was not entitled to  renewal of the lease.  The trial Court further observed  that at no point of time, the respondent had approached  the Court, prior to 24.10.1985, for execution of the lease  through the Court. Nothing prevented the respondent  from approaching the Court, prior to 24.10.1985, seeking  permission to deposit Rs.30 lacs on account of premium  and arrears of rent in Court and in the circumstances, the  trial Court allowed the petition filed by the Trustees- appellants and recalled the decree dated 25.7.1985 after  rescinding the agreement dated 16.8.1980.

       Being aggrieved by the order dated 31.7.1996, the  respondent herein carried the matter in appeal to the High  Court, being appeal from original order no.3652 of 1996.   

       During the pendency of the appeal, vide order  dated 18.12.1996, the High Court directed the respondent  to deposit Rs.1 crore with the appellants-Trustees on  account of arrears of rent.  By the said order, the High  Court also directed the respondent herein to deposit  Rs.40 lacs with the Registrar, High Court on account of  arrears of corporation tax.   

       Being aggrieved by the order dated 18.12.1996, the  respondent herein preferred SLP to this Court.  By order  dated 10.3.1997, this Court directed the respondent  herein to deposit in all Rs.83 lacs comprising of Rs.57   lacs towards arrears of rent up to 31.3.1997 plus Rs.26  lacs towards the balance premium which the respondent  herein has paid.  In addition, respondent herein was asked  to deposit Rs.40 lacs towards corporation tax subject to  final accounting, which has also been paid.  

       By impugned judgment dated 10.6.1999, the High  Court held that the order passed by the trial Court dated  31.7.1996 was contrary to section 28(1) of the 1963 Act,  as there was no default clause in the decree dated  25.7.1985.  According to the High Court, section 28(1)  was not applicable as the decree dated 25.7.1985 did not  direct the respondent herein to deposit the amounts  within specific time frame.  According to the High Court,  under section 28, there was no power vested in the trial  Court to set aside the decree.  Section 28 contemplated  rescission of the agreement.  The only power which the  Court has under section 28 is to rescind the agreement if  it finds that the decree holder was a defaulter.  The High  Court further held that in the present case, the decree  holder was put in possession under the deed of  assignment dated 20.8.1970.  The decree holder was  never put in possession under the agreement dated



16.8.1980 for which the decree for specific performance  was granted.  In the circumstances, the High Court held  that the trial Court had erred in directing the decree  holder to restore possession to the Trustees.  In the  circumstances, the appeal preferred by the respondent  was allowed and the order of the trial Court rescinding  the agreement dated 16.8.1980 was set aside.  Hence, this  appeal.

       It has been submitted on behalf of the appellants  herein that at the time of the agreement dated 16.8.1980,  the value of the property in question was about Rs.30  crores.  On the basis of the said value, the market rate  ought to have been Rs.30 lacs.   It was urged that if the  Trust property is allowed to be leased out to the  respondent herein on monthly rent of Rs.30,000/- and at a  premium of Rs.30 lacs, the appellant-Trust will loose  substantially.  In this connection, reliance has been  placed on the valuation report dated 26.4.2000.

       We do not find any merit in the aforestated  arguments.  As far back as 20.8.1970, the Trustees  allowed the lessee, Mohd. Ismail, to assign the leasehold  rights in favour of the respondent herein.  Further, the  assignee was allowed to be put in possession.   On  16.8.1980, the Trustees entered into oral agreement to  renew the above lease for 70 years w.e.f. 1.5.1981 at  increased rent of Rs.30,000/- per month plus premium of  Rs.30 lacs as found by the trial Court in title suit  no.176/81 decided on 25.7.1985.  In the circumstances,  increase in the value of the immovable property, on  account of inflation, is no ground to rescind the  agreement dated 16.8.1980. We have to see the  circumstances prevalent as on 16.8.1980 when the parties  entered into the oral agreement to lease.  

       It is next contended on behalf of the appellants that  the oral agreement dated 16.8.1980 for renewal of lease  stood vitiated on account of collusion between Tivoli  Court Pvt. Ltd., the constituted attorney appointed by the  Trustees, and the respondent herein.  In this connection,  it has been alleged that the Trust had entered into an  agreement dated 29.4.1981 to lease out the property to  one Tivoli Court Pvt. Ltd., in whose favour a power of  attorney was also executed.  Under that power of  attorney, Tivoli Court Pvt. Ltd. was authorized to adopt  all legal proceedings against the respondent herein for  eviction.  It is further alleged that the respondent herein  perpetrated fraud on the Trust by colluding with the  Tivoli Court Pvt. Ltd., so that no effective legal steps  could be taken against the respondent herein.  It is further  alleged that the Director of Tivoli Court Pvt. Ltd. was  also a Director of the respondent company.   Consequently, the suit for eviction bearing no.87/81 was  allowed to be dismissed for default while suit for specific  performance was allowed to be decreed ex-parte.  That  even the subsequent application under Order IX Rule 13  CPC was allowed to be dismissed for default. In the  circumstances, it is submitted that the trial Court was  right in rescinding the agreement dated 16.8.1980.

       We do not find any merit in the above arguments.   At stated above, prior to the purported agreement dated  29.4.1981 in favour of Tivoli Court Pvt. Ltd., the  Trustees had consented to the Assignment dated



20.8.1970 by their lessee, Mohd. Ismail, in favour of the  respondent herein.  Pursuant to the said Assignment, the  said respondent was put in possession.  This assignment  was followed by oral agreement dated 16.8.1980 to  renew the lease.  In the circumstances, one fails to  appreciate the authority of the Trustees to enter into an  agreement dated 29.4.1981 to lease out the said property  in favour of Tivoli Court Pvt. Ltd.  On 25.7.1985, when  title suit no.176/81 came for hearing, no evidence was led  on behalf of the Trustees explaining circumstances under  which the Trust entered into the agreement dated  29.4.1981 with Tivoli Court Pvt. Ltd.  In the  circumstances, it is not open to the appellants herein to  go behind the said decree dated 25.7.1985.  Lastly, it may  be mentioned that the trial Court has rescinded the  agreement dated 16.8.1980 basically on the ground of  alleged breaches thereof.  In the circumstances, it is not  open to the appellants now to submit that the decree  dated 25.7.1985 was collusive and not binding on the  Trust estate.                    On behalf of the appellants, it was next submitted  that the respondent herein was not serious about  performing its obligations under the decree.  In this  connection, it was submitted that nothing prevented the  respondent from applying to the Court for execution of  the lease.  That, nothing prevented the respondent from  seeking extension of time to deposit the premium/rent.  It  was urged that the very fact that the respondent chose to  make no such application and slept on its rights for nine  years conclusively proves that it was not ready and  willing to perform its part of the contract and also its  obligations under the decree and in the circumstances, the  trial Court had rightly rescinded the oral lease agreement  dated 16.8.1980.  It was further submitted that the trial  Court while passing the decree had stated that within 90  days of the decree dated 25.7.1985, the lease shall be  executed i.e. all payments were required to be made  within that period.  That without such payments, a lease  could not be directed to be executed.  No steps were  taken by the respondent herein to renew the lease and pay  the premium in accordance with the agreement dated  16.8.1980.  No rent was offered during the period  25.7.1985 to 3.10.1994 when the appellants filed their  application for rescission of the oral lease agreement  dated 16.8.1980.  In the circumstances, it was submitted,  that, by implication, the respondent herein was obliged to  pay or tender the amount of premium of Rs.30 lacs  within 90 days from the date of the decree dated  25.7.1985.   It was urged that when the decree fixed 90  days for execution of the lease, it was implicit in the said  direction that the respondent herein shall pay or tender  Rs.30 lacs on or before 24.10.1985.  That, since the  respondent failed to pay or tender Rs.30 lacs on or before  24.10.1985, the appellants were entitled to seek  rescission of the agreement dated 16.8.1980.  That, when  the agreement for renewal of the lease dated 16.8.1980  provided for payment of monthly rent of Rs.30,000/-, it  was implicit in the decree dated 25.7.1985 for the  respondent to pay the monthly rent in terms of the  agreement dated 16.8.1980 and since the decree holder  failed to pay, in the aforestated terms, the appellants were  entitled to seek rescission of the decree dated 25.7.1985  under section 28(1) of the 1963 Act.  In the  circumstances, it was urged, that the respondent herein



was never ready and willing to abide by the terms and  conditions of the agreement and consequently, the trial  Court was right in rescinding the oral lease agreement  dated 16.8.1980.   

       We do not find merit in the above arguments.  The  short question which arises for determination in this case  is \027 whether the oral lease agreement dated 16.8.1980  was liable to be rescinded for alleged breaches.  Mr. L.N.  Rao, learned senior counsel appearing on behalf of the  appellants, at the very threshold, submitted that he would  like to confine his arguments to the question of rescission  only.  According to the learned counsel, the power of the  Court under section 28(1) to order cancellation of the  decree and order restoration of possession to the vendor  was a very wide question which need not to be gone into  in the present case.  

       In the light of the above, we may now examine the  above arguments advanced on behalf of the appellants.  

       In the present case, the decree for specific  performance is dated 25.7.1985 in suit no.176/81.  On  behalf of the plaintiff (respondent herein) PW1 was  examined.  He tendered evidence indicating that the  respondent herein was in possession.  No evidence was  led on behalf of the Trustees.  In the circumstances, the  trial Court decreed the suit on 25.7.1985 and passed an  order in following terms:\027 ".... Defendants do execute register and  deliver the lease in favour of the plaintiff  (respondent herein) in terms of the  agreement dated 16.8.1980 within 90 days  from the date of the decree, failing which  the decree holder (respondent herein) will be  at liberty to get the lease executed through  the Court\005."

       A bare reading of the order indicates that the  respondent herein was directed not to put the decree in  execution for 90 days from the date of the decree i.e.  25.7.1985.  The said order did not specify the period  within which the balance premium amount of Rs.26 lacs  was to be paid by the decree holder.  There is no default  clause in the said order.  It only directs the appellants to  execute the lease on or before 24.10.1985.  In the  circumstances, there is no merit in the argument  advanced on behalf of the appellants, that, impliedly, the  balance premium had to be tendered on or before  24.10.1985, failing which the agreement dated 16.8.1980  was liable to be rescinded.

       In the case of Abdul Shaker Sahib v. Abdul  Rahiman Sahib & another reported in [AIR 1923  Madras 284] while construing section 35 of the 1877 Act  (similar to section 28 of the 1963 Act) it has been held as  follows:\027         "\005After the original judgment for  specific performance it is the definite  practice in England that all consequential  relief by reason of any party failing to  comply with the terms of the judgment must  be sought by application to the Court by  which the judgment was passed.  Such  applications are made by motion in the



action showing that in England, after the  original judgment the action is by no means  ended but remains under the control of the  same Court.  If the default is made by the  purchaser in paying the purchase-money  there are several remedies open to the  vendor.  (1)  He may on motion in the action  obtain an order fixing a definite time and  place for payment and delivery over of the  conveyance and title-deed and can, after the  expiration of that time, levy execution for  the amount, if not paid.  (2)  He may apply  by motion in the action for an order  rescinding, not the judgment but the  contract, and in order to succeed in such a  motion he has to satisfy the Court that there  has been a positive refusal to complete,  which it may be observed in the present  case, the respondent has certainly not  proved.  A similar right is given by Section  35 of the Specific Relief Act of 1877.  (3)   He can enforce his unpaid vendor’s lien for  the purchase-money and costs.  (4)  He can  by motion in the action obtain an order for  sale by the Court of the property when he  will be at liberty to bid.  The proceeds of the  sale are paid into Court and the vendor gets  his contract price, interest and costs and the  purchaser the balance, if any.  Where the  vendor is in default, the remedies are even  more varied.

       It would seem to be absurd to hold  that the mere fact that a date of completion  is fixed in the original decree puts an end to  the action and that the control of the original  Court expires on the expiration of that date  \027 and thus substitute in effect for all the  known remedies stated above the simple  expedient of treating the action and the  decree as dead for all purposes and leaving  the vendor in undisturbed possession of  property which is not his\005."

       In the case of Hungerford Investment Trust  Limited v. Haridas Mundhra & others reported in  [(1972) 3 SCC 684] it has been held that when the Court  passes the decree for specific performance, the contract  between the parties is not extinguished.  That the decree  for specific performance is in the nature of preliminary  decree and the suit is deemed to be pending even after the  decree.  Hence, the Court retains control over the entire  matter even after the decree.  Since the Court retains  control over the matter, despite the decree, it is open to  the Court to order rescission of the agreement, when it is  found that the decree holder is not ready and willing to  abide by his obligations under the decree.  

       In the case of M. Sakuntala Devi v. V. Sakuntala  & others reported in [AIR 1978 A.P. 337] it has been  held that though section 28 does not confer power on the  Court to extend time, it recognizes its power to do so in  cases of default in payment.  

       In the case of K. Kalpana Saraswathi v. P.S.S.



Somasundaram Chettiar reported in [AIR 1980 SC 512]  it has been held as follows:\027         "It is perfectly open to the court in  control of a suit for specific performance to  extend the time for deposit, and 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  off-set by the false pleas raised in the course  of the suit by him and rightly negatived.   Nor are we convinced that the application  for consideration and extension of time  cannot be read, as in substance it is, as a  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 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 of the vendor’s debt as  implied 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 sterilize this decree is  necessary equity to which the appellant must  submit herself before she can enjoy the  fruits of specific performance."

       In the case of Sardar Mohar Singh v. Mangilal  reported in [(1997) 9 SCC 217] it has been held that  section 28(1) postulates that the Court does not lose its  jurisdiction after the grant of the decree for specific  performance nor it becomes functus officio.  Section 28  gives power to grant order of rescission of the agreement  which itself indicates that till the sale deed is executed,  the trial Court retains its power and jurisdiction to deal  with the decree of the specific performance.  Therefore,  the Court has the power to enlarge the time in favour of  the judgment-debtor to pay the amount or to perform the  conditions mentioned in the decree for specific  performance, despite the application for rescission of the  agreement/decree.

       In the case of Vaiyapuri Reddy & another v.  Sivalinga Reddiar reported in [(1970) 1 Madras L. J. 92]  it has been held that since the Court has, under section  28, the power to extend the period in cases where it has  already fixed a period of deposit, it should be deemed to  have the power to either fix a period or grant a fresh  period to deposit, particularly in cases where no such  period is fixed by the decree.  In that case, the Court  found that there were laches on the part of the plaintiff in  depositing the amount and yet the Court gave thirty days  time to the plaintiff to deposit the amount on the  application made by the defendants for rescission of the  contract.

       In the case of Ouseph & another v. Devassy  reported in [AIR 2001 Kerala 104] the decree was silent  as to the date by which the decree holder was to pay the



balance of the price.  Possession was with the decree  holder.  The purchaser deposited the balance before filing  of the petition for rescission of the agreement but after  expiry of the period fixed by the decree.  The decree  holder applied for condonation of the delay.  The same  was granted.  In doing so, the Court observed that section  28 enables the Court to extend the time which by itself  implies that mere failure to deposit the balance need not  result in the rescission of the contract.  On facts, it was  found that the decree was silent as to the date by which  the decree holder was to deposit the balance of the sale  consideration.  On facts, it was found that the decree  holder was in possession for 18 years.  On facts, it was  found that the vendor did not take any steps to get the  balance of the sale consideration.  That the vendor failed  to seek rescission for 18 years.  In the circumstances, the  Court allowed the decree-holder, condonation of delay in  depositing the balance consideration.                  In the case of V. S. Palanichamy Chettiar Firm v.  C. Alagappan & another reported in [AIR 1999 SC 918],  cited on behalf of the appellants, the vendee \026 decree  holder filed application for execution of the decree of  specific performance after five years.  No reason was  given for not putting the decree in execution for five  years.  Further, under the decree, there was a specific  direction to the decree holder to deposit the balance  purchase price within the stipulated period.  Under the  said decree, a further direction was given to the judgment  debtor to execute the sale deed on the vendee’s  depositing the balance purchase price.  It was a case of a  final decree.  In the execution application, the judgment  debtor applied for rescission of the agreement of sale on  the ground of default on the part of the vendee in failing  to deposit the balance price.  Under the above  circumstances, this Court held that the vendee, who had  applied for extension of time to deposit the balance price,  was not entitled to such extension.  This Court observed  that in deciding application under section 28(1), the  Court has to see all the attendant circumstances including  the conduct of the parties.  On facts, this Court found that  there was no default on the part of the vendor \026 judgment  debtor.  That no explanation whatsoever came from the  vendee \026 decree holder for failure to deposit the balance  price.  In the circumstances, on facts, this Court refused  extension of time to deposit the balance price.  Therefore,  the said judgment has no application to the facts of the  present case.

       Applying the above tests to the facts of the present  case, the decree in question is not a self operative final  decree.  It is a preliminary decree.  It merely directs the  Trust to execute the lease on or before 24.10.1985.  It  does not prescribe any consequence of non deposit of  premium.  It does not prescribe any consequence of non  tender of rent on or before 24.10.1985.  Till date, the  decree holder has paid the premium of Rs.30 lacs.  It has  paid rent amounting to Rs.96 lacs.  In the circumstances,  it cannot be said that the decree holder intended to  abandon the contract dated 16.8.1980.  There is no  positive refusal on the part of the respondent to complete  the lease.  There is no explanation given by the Trust for  not moving the application for rescission of the contract  for nine years.  The decree was passed on 25.7.1985  whereas the application for rescission of the agreement is



dated 3.10.1994.  As stated above, the Trust did not lead  the evidence in suit no.176/81.  The corresponding suit  no.87/81 filed by the Trust was dismissed for non- prosecution.  The Trust moved under Order IX Rule 13  CPC for setting aside the decree dated 25.7.1985. That  application was dismissed for default vide order dated  1.8.1987.  The Trust moved the application for  restoration which was also dismissed for default on  16.7.1988.   The Trust moved in appeal against the  decree dated 25.7.1985.  That appeal was also dismissed.   The decree holder has referred to the entire  correspondence between the parties which indicate that  during this period of nine years in the guise of  negotiations, the decree holder was prevented from filing  execution application.  The decree holder was repeatedly  assured of settlement.  The decree holder was repeatedly  assured that lease would be executed in its favour.   Attempt was also made by the Trustees during the  interregnum to lease the property to Dilip Chand  Kankaria and Smt. Sudha Kankaria.  Lastly, in the  present case, the decree holder was put in possession  under the deed of assignment dated 20.8.1970.   The  respondent was not put in possession under the  agreement dated 16.8.1980.  In the circumstances, the  trial Court erred in directing rescission of the said  agreement dated 16.8.1980.  For the aforestated reasons,  we do not find any merit in this appeal.   

       Before concluding, we may point out that till  date the decree holder has deposited Rs.96 lacs  including premium of Rs.30 lacs.  The decree holder  hereby undertakes to deposit the balance amount of  Rs.19,20,000/- within 30 days from the date of this  judgment.  He also undertakes to pay Rs.10,00,000/-  by way of compensation for loss, if any.                   In the circumstances, we direct the decree  holder to tender a sum of Rs.29,20,000/- within 30  days from today to the Trustees.  On receipt, the  Trustees shall execute the lease in favour of the  respondent herein for 70 years commencing from  1.5.1981 to 30.4.2051.                  In case the Trustees refuse to accept the said  amount, the respondent herein shall deposit the  aforestated amount of Rs.29,20,000/- in the Court of  2nd  Asstt. District Judge, Alipore, Calcutta. On such  deposit, the Officer nominated by the trial Court shall  execute the lease in favour of the respondent in terms  of the agreement dated 16.8.1980 and as directed by  the trial Court vide order dated 25.7.1985 in title suit  no.176/81.  

       In case of default, on the part of the respondent,  in tendering/depositing the aforestated amount within  the stipulated period of 30 days, the agreement dated  16.8.1980 shall stand rescinded and the title suit  no.176/81 shall stand dismissed.   

       As regards the payment of corporation tax,  learned counsel appearing on behalf of the  respondent has invited our attention to clause 4 of the  lease dated 25.11.1960 which reads as under:\027         "The entire occupier’s share of  Corporation rates and taxes and the excess



of Owner’s share of Corporation rates and  taxes over and above the rental amounts as  hereinbefore provided will be paid by the  Lessee in respect of the portions of the  properties hereby demised in addition to the  monthly rents hereby reserved."

       Relying on clause 4, learned counsel for the  respondent submitted that the Trust has failed to pay  its share of corporation tax in terms of clause 4  quoted above.  It was contended that the respondent  has till date paid an amount of Rs.40 lacs towards  corporation taxes.  That the respondent was entitled  to recover from the Trustees the owners’ share of  corporation tax.   

       In order to put an end to the dispute, we  suggested to the learned counsel appearing on behalf  of the respondent not to press its above claim for  contribution of corporation tax from the Trustees.   Learned counsel appearing on behalf of the  respondent has accepted our suggestion that for the  past period, the respondent will not make a claim for  contribution of owner’s share of the corporation tax.   To that extent, the respondent agrees not to press its  above claim.  

       In the written arguments dated 25.10.2004, the  appellants herein have filed their Statement of  Account.  A bare perusal of the said Statement  indicates the claim for interest @ 8.33% per annum  on monthly basis.  We do not find any basis for such  claim.  The entire Statement is for recovery of  occupation charges and interest.  The items  mentioned in the Statement do not fall within the  purview of the oral lease agreement dated 16.8.1980.   In the circumstances, it is not possible for this Court  to grant relief under Article 142 of the Constitution,  as prayed.

       Subject to the above, the appeal fails and is  dismissed, with no order as to costs.