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India Media Services Private Limited v/s Newsprint Trading and Sales Corporation

    GA 1349 of 2008, CS 486 of 2002

    Decided On, 30 July 2008

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SANJIB BANERJEE

    For the Appearing Parties: S.K. Kapur, Ajoy K. Chatterji, Tapas Banerjee, A.P. Aggarwal, Anindya Mitra, I.P. Mukherjee, Ritzu Ghosal, Advocates.



Judgment Text

SANJIB BANERJEE, J


(1.) The vicissitudes of the real estate market and the recent unabated trek of property prices due north have resulted in the substantial skirmishes between the principal dramatis personae here, including this present attempt to disentangle a valuable Hyderabad property that appears to have been parked beyond the reach of the third defendant under a consent decree.


(2.) The third defendant has applied for rescission of the agreements of September 7, 2000 and June 12, 2002 and the consequential annulment of the consent decree of March 17, 2004 passed on the basis of the two agreements.


(3.) The third and fourth defendants are engaged in the business of publication of newspapers. The fourth defendant is a subsidiary of the third defendant. The second defendant is a foreign concern and the first defendant is the Indian agent of the second defendant. The third and fourth defendants obtained supply of newsprint from the first and second defendants, were immediately unable to pay therefor and offered the first and second defendants a Hyderabad property in lieu of the money owed. The first and second defendants dithered over the third defendant's offer as to the property; and the plaintiff stepped in.


(4.) A first agreement was entered into on September 7, 2000 between the third defendant on the one hand and the first and second defendants and the plaintiff on the other. The Hyderabad property was agreed to be sold by the third defendant under this agreement to the plaintiff at a consideration of Rs.21.1 crore and the plaintiff agreeing and undertaking to pay such amount to the first and second defendants in discharge of the debts of the third and fourth defendants owed to the first and second defendants on account of the supply of newsprint.


(5.) A second agreement was executed on June 12, 2002 by which the first and second defendants transferred the debt owing to such defendants from the third and fourth defendants in favour of the plaintiff. The third defendant was a confirming party to the agreement which provided that the debt would stand assigned in favour of the plaintiff upon execution of the conveyance relating to the Hyderabad property by the third defendant in favour of the plaintiff.


(6.) The third defendant says that the conveyance could not be executed, the first agreement failed and the second agreement became incapable of execution. The plaintiff instituted CS No. 486 of 2002 claiming, as assignee of the second defendant, a money decree the Indian equivalent whereof was in excess of Rs.42 crore. The plaintiff applied for an order in the nature of attachment before judgment and also for judgment upon admission. The suit was decreed in part on March 17, 2004 on the basis of consent terms that broadly provided as follows: i. The third defendant would transfer the Hyderabad property to the plaintiff in terms of the agreements of September 7, 2000 and June 12, 2002 at a consideration of Rs.21.1 crore. ii. The registration of the conveyance would be completed within eight weeks from the date of the decree (by May 12, 2004). iii. The third defendant would register the conveyance in Hyderabad. All registration fees and expenses incidental to the registration would be borne by the plaintiff. iv. In default of the third defendant registering the said conveyance, the Registrar, Original Side, of this Court would execute and register the deed in the name and on behalf of the third defendant. v. The interim, order passed at the plaintiffs behest would continue to operate only against the Hyderabad property and stand vacated in respect of the Bangalore properties of the third and fourth defendants. vi. The suit would stand dismissed against the fourth defendant. vii. The plaintiffs claim in respect of the invoices of the first and second defendants assigned in the plaintiffs favour, and incorporated in Schedules B1 and B2 to the second agreement, would stand satisfied and adjusted in full. viii. The balance claim of the plaintiff would stand to trial.


(7.) Before the grounds that find place in the application or the other grounds urged from the Bar are noticed, the history of the several skirmishes that the principal parties here were engaged in needs to be recounted: i. The plaintiffs two applications for attachment before judgment and judgment upon admission, being GA No. 4200 of 2002 and OA No. 4203 of 2003, stood disposed of by the decree of March 17, 2004, ii. The third defendant's application for the Registrar to execute the conveyance, being GA No. 3035 of 2004, was disposed of by an order dated November 21, 2005 requiring the third defendant to apply for execution of the decree. iii. The plaintiffs execution application, EC No. 8 of 2005, by which the plaintiff sought the appointment of a receiver to sell the Hyderabad property and make over the sale proceeds to the plaintiff (the balance of the sum of Rs.21.1 crore and interest being claimed from the third defendant) was dismissed by the same order of November 21, 2005 as the plaintiff sought an execution which was at variance with the decree. iv. The plaintiffs appeal from the order dated November 21, 2005, being APOT No. 20 of 2006 was effectively dismissed by an order of January 16, 2006. The third defendant's cross-objection also did not find favour with the Appellate Court. (Item Nos. ii, iii and iv are broadly grouped as the first stage of the post- decree clash between the plaintiff and the third defendant.) v. GA No. 3995 of 2005 (T No. 559 of 2005) was filed by the third defendant seeking rescission of the agreements and offering payment to the plaintiff of the sum of Rs.21.1 crore. Such application was dismissed by an order of May 18, 2007. vi. The plaintiff launched further execution proceedings by way of EC No. 1 of 2006 this time seeking execution of the conveyance relating to the Hyderabad property, which was allowed by the same order of May 18,2007. vii. The third defendant preferred an appeal from the order dated May 18, 2007 which was dismissed on October 16, 2007. viii. The third defendant filed petitions before the Supreme Court for special leave to appeal from the order of October 16, 2007 which were dismissed on April 7, 2008. (Item Nos. v, vi, vii and viii are broadly grouped as the second stage of the post-decree clash between the plaintiff and the third defendant.) ix. The plaintiff has filed GA No. 3390 of 2007 for implementation of the order of May 18, 2007 which is pending. x. The plaintiff has filed another application, GA No. 1311 of 2008, also for implementation of the order of May 18, 2007 which is pending.


(8.) The argument made on behalf of the third defendant at the final hearing travels a fair distance beyond what has been put on paper in the application. The plaintiff says that the orders sought cannot be made in view of the previous rounds of adjudication between the parties and insists that the present application is in abuse of process and is deserving of exemplary costs. What the plaintiff suggests is that the principles of res judicata or constructive res judicata do not afford the third defendant an opportunity to urge the grounds that find mention in its application. As to the additional grounds put forth in course of argument, the plaintiff, says that it did not come to Court to meet any ground that had not been taken in the application.


(9.) After narrating the divers post-decree proceedings and the results thereof, the third defendant founds this application on the plaintiffs alleged disinclination and unwillingness to perform its obligations under the consent decree or to have the Hyderabad property transferred or conveyed in its favour. At paragraph 19 of the application 30 counts of the plaintiffs alleged disinterest have been listed, but all the sub-paragraphs beginning (a) and ending (dd) have to be seen as particulars of the plaintiffs unreadiness or unwillingness or lack of interest to perform its obligations under the decree. At the immediate succeeding paragraph of the application, the third defendant elucidates that the particulars preceding such paragraph would make it evident "that the plaintiff has never been ready and willing to specifically give effect to the two agreements dated 7 September 2000 and 12 June, 2002 or to act in terms of the said decree and has thereby unquestionably disentitled itself to have the said Hyderabad property conveyed in its favour."


(10) As the application meanders through four subsequent, short paragraphs into the reliefs seeking, in effect, discharge of the third defendant's obligations under the consent decree, there is nothing more of note. The first relief is for the two agreements and the consent decree being "rescinded and/or annulled" and the second seeks a declaration that the consent decree "is inexecutable and not binding upon" the third defendant. The third principal relief emphasises that the consent decree "be rescinded and set aside."


(11.) At the prolonged final hearing, that was not cut short much to the chagrin of the plaintiff, four further points have been stressed by the third defendant: i. That the orders passed at the two stages, in effect requiring the third defendant to execute the conveyance of the Hyderabad property, have no legal force in view of the amended provision of section 39(4) of the Code of Civil Procedure and the Supreme Court's reading of the effect of such amended provision in a decision reported at 2007(4) SCC 795, Mohit Bhargava vs. Bharat Bhushan Bhargava. ii. To the extent the consent decree of March 17, 2004 has subsequently been modified by any order of Court not assented to by the third defendant, the same is a nullity. iii. The order passed on May 18, 2007 was in course of execution and, since the hearing was upon special assignment or a matter carried as. partly-heard despite a change in the determination, the Hon'ble Judge did not take up the matter as the regular interlocutory Court. The insinuation is that the Hon'ble Judge inherently lacked jurisdiction to modify the decree in execution, even if it be assumed that if the Hon'ble Judge had presided over the interlocutory Court he would have had the authority so to do. iv. The order of the Supreme Court passed on April 7, 2008 accords the third defendant a charter to urge all grounds now taken, whether in the application or in course of argument.


(12.) If the substance of what the third defendant urges has to be gone into, the threshold objections of the plaintiff have first to be brushed aside. The third defendant says that the finality or conclusiveness of all that is contained in the order dated November 21, 2005 is undone by the following sentence in the Appellate Court order of January 16, 2006: "We further make it clear that any observation made by us either by this Court or by the Hon'ble First Court in connection with this appeal will not stand in the way to decide the matter by the appropriate forum, if occasion so arise(s)."


(13.) Assuming that the third defendant is right in its assessment in such regard, it is next to be seen whether the present challenge survives the second round of combat between the plaintiff and the third defendant. There is no window for further scuffle on the same points that has been left open by the Appellate Court order of October 16, 2007. The appeal was dismissed with little words of consolation for the third defendant: "Accordingly, we are of the considered opinion that the appellant (the third defendant) has failed to make out the case in this matter and we are also of the considered opinion that the Hon'ble First Court has correctly assessed the facts of the case and the law and there is no ground to question the said order delivered by the Hon'ble First Court. Accordingly, we affirm the said decision and dismiss this appeal."


(14.) The third defendant exhorts that the door that was slammed shut on its face by such Appellate Court order has been left ajar enough by the Supreme Court order of April 7, 2007 to permit the third defendant to slip in and canvass the grounds that it now seeks to urge. The Supreme Court order, spread over two short paragraphs, reads as follows: "We are not inclined to interfere in this matter. The special leave petitions are accordingly, dismissed. It is stated that there is an attempt for execution beyond the terms of the decree. It is open to the petitioner to highlight this aspect before the Appropriate Court. We express no opinion in that regard."


(15.) Faced with the substantial broadside against the orders made in the first and second stages of the post-decree clashes, the plaintiff makes an interesting, if slightly condescending, point. The plaintiff says that the entire attempt must be viewed as part of the third defendant's endeavour to wriggle out of its obligations under the agreements and the consent decree, be it for the perceived increase in land price or for some other more sinister motive. The plaintiff cautions against falling for the third defendant's bait, that the Court should steer clear of all grounds urged that are not reflected in the application. The plaintiff apprehends that a pronouncement against the defendant on the grounds extraneous to the application may be just the handle that the third defendant desires to try and obtain an Appellate Court order of stay of further steps in implementing the decree and enforcing the subsisting orders. Even if such reason cannot be countenanced or heard to be urged, it is necessary that the plaintiffs concern of the arena of conflict being expanded beyond the bounds of the immediate lis, be addressed.


(16.) Though the law and the precedents that the parties bring may not be of immense relevance in the context of the view that is taken herein, it is necessary that they are, at least, acknowledged. The third defendant says that section 28 of the Specific Relief Act, 1963 is wider than the words of the opening limb of sub-section (1) thereof suggest. The plaintiff refutes such argument and says that it must be limited to the plain meaning of the words. Section 28 of the said Act provides: "28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.-(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money 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 such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1), the Court- (a) shall direct the purchaser or lessee, if he has 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 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 lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase money or other sum which he is ordered 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 purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely- (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be 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 be in the discretion of the Court,"


(17.) The third defendant relies on a judgment reported at AIR 1956 SC 359, Jai Narain Ram Lundia vs. Kedar Nath Khetan and Ors., and says that if a decree involves reciprocal obligations, the failure of a party to discharge its obligations would disentitle such party from seeking enforcement of the obligations of the other party thereto. The third defendant says that a decree must be implemented upon its terms and it is either executed as it is or not at all unless the Court which passed it alters or modifies it. For these two aspects, the third defendant relies on paragraphs 18 and 24 of the report: "18. Much of the argument about this revolved round the question whether the equitable rules that obtain before decree in a suit for specific performance continue at the stage of execution. It is not necessary for us to go into that here because the position in the present case is much simpler. When a decree imposes obligations on both sides which arc so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the Executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an Executing Court cannot do. There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an Executing Court cannot do. The only question therefore is whether the decree in the present case is of this nature. We are clear that it is. 24. The next point urged by the appellant was that as the plaintiff did not raise the present objection before the Federal Court when it passed its decree he is precluded from doing so now. It is true this would have been a good ground for resisting a decree for specific performance but, is no answer to the objection to execution. The defendant, undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution because the decree, in view of its language and intendment, must either be executed as a whole or not at all; it cannot be split up into different and uncorrected parts and be executed unilaterally. It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree later if he did not know these facts at the time, as he says it was of the plaintiff. The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court which passed it alters or modifies it."


(18.) The other judgment that the third defendant relies on is one reported at 2007(4) SCC 795, Mohit Bhargava vs. Bharat Bhushan Bhargava. The third defendant asserts that notwithstanding this Court having made the decree, the introduction of sub-section (4) of section 39 of the Code requires the Court passing the decree to desist from proceeding in execution against a property outside its jurisdiction, unless the execution is covered by Order 21 Rule 3 of the Code where some of the immovable properties may be situate within the Executing Court's jurisdiction and others beyond. Paragraphs 7 and 8 of the report have been placed: "7. There cannot be any dispute over the proposition that the Court which passed the decree is entitled to execute the decree. This is clear from section 38 of the Code which provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 42 of the Code indicates that the Transferee Court to which the decree is transferred for execution will have the same powers in executing that decree as if it had been passed by itself. A decree could be executed by the Court which passed the decree so long as it is confined to the assets within its own jurisdiction or as authorised by Order 21 Rule 3 or Order 21 Rule 48 of the Code or the judgment-debtor is within its jurisdiction, if it is a decree for personal obedience by the judgment- debtor. But when the property sought to be proceeded against, is outside the jurisdiction of the Court which passed the decree acting as the executing Court, there was a conflict of views earlier, some Courts taking the view that the Court which passed the decree and which is approached for execution cannot proceed with execution but could only transmit the decree to the Court having jurisdiction over the property and some other Courts taking the view that it is a matter of discretion for the Executing Court and it could either proceed with the execution or send the decree for execution to another Court. But this conflict was set at rest by Amendment Act 22 of 2002 with effect from 1.7.2002, by adopting the position that if the execution is sought to be proceeded against any person or property outside the local limits of the jurisdiction of the Executing Court, nothing in section 39 of the Code shall be deemed to authorise the Court to proceed with the execution. In the light of this, it may not be possible to accept the contention that it is a matter of discretion for the Court either to proceed with the execution of the decree or to transfer it for execution to the Court within the jurisdiction of which the property is situate. 8. Pending a suit, the Court approached with the suit, may have jurisdiction to order attachment of a property even outside its jurisdiction. In execution, under Order 21 Rule 54 of the Code, it may also have jurisdiction to order attachment of the property prohibiting the judgment- debtor from transferring or charging the property in any way when it exercises its jurisdiction over the judgment-debtor though not over the property itself. It could in such a case issue a precept in terms of section 46 of the Code and thereupon, the Court to which the precept is sent, has to actually attach the property in the manner prescribed. Section 136 of the Code provides for an order of attachment in respect of a property outside the jurisdiction of the Court and sending the order of attachment to the District Court within whose local limits the property sought to be attached is situate, as provided for therein. But section 136 clearly excludes execution of decrees from within its purview. An execution against immovable property lying outside the jurisdiction of the executing Court is possible in terms of Order 21 Rule 3 of the Code which governs a case where the particular item of immovable property, forms one estate or tenure situate within the local limits of jurisdiction of two or more Courts, and one of those Courts is approached for execution of the decree against that property. In a case where Order 21 Rule 3 has no application, the position seems to be that if a decree-holder wants to proceed against a property situate outside the jurisdiction of the Court which passed the decree, he has to get the decree transferred to the appropriate Court for execution on moving the Executing Court in that behalf. Whatever doubts there might have been earlier on this question, must be taken to have been resolved by the introduction of sub-section (4) of section 39 of the Code which is a mandate to the Executing Court to desist from proceeding against a property situate outside its jurisdiction, unless it be a case coming under Order 21 Rule 3 of the Code."


(19.) The plaintiff relies on a judgment reported at 2005(9) SCC 262, Kumar Dhirendra Mullick vs. Tivoli Park Apartments (P) Ltd. The plaintiff says that the facts of that case as would appear from the report would suggest that even if harsh consequences were to visit the judgment-debtor following a decree for specific performance, there is little room for the Court to sympathise with such party. The plaintiff agrees with the third defendant and defers to the venerable proposition that when a Court passes a decree for specific performance the contract is not extinguished and the Court is not rendered functus officio, but the decree is in the nature of a preliminary decree and the Court retains control over the matter even after the decree. While the plaintiff places the judgment to suggest the limited scope of section 28 of the Specific Relief Act, the third defendant submits that the Supreme Court recognises that it is open for a Court to order rescission of the agreement forming the decree for specific performance, if it is found that the decree-holder is not ready or willing to abide by his obligations under the decree. The third defendant relies on paragraph 27 of the report which does not confine the extent of the Court's inquiry to only the payment to be tendered by the decree-holder but speaks of the further expanse of the investigation into the entire gamut of the decree-holder's obligations under the decree: "27. In the case of Hungerford Investment Trust Ltd. vs. Haridas Mundhra, 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."


(20.) It is necessary that the order of May 18, 2007 be seen, now that it has stood the test in the appeal and the Supreme Court did not entertain the resultant petitions for special leave to appeal. The following questions were formulated in the order: "i. Whether the decree is a nullity having regard to the aforesaid facts narrated? ii. Whether this question can be agitated at this stage? iii. Whether the decree and order passed is a consent decree under the provision of Order 23 Rule 3 of the Code of Civil Procedure? iv. Whether the relief sought for in the application can be granted by this Court."


(21.) Upon recording the arguments on either side, it was held that the decree was valid and it did not suffer from any illegality or infirmity, far less from inherent lack of jurisdiction. The contention that the decree was inexecutable as it embodied mutual rights and obligations and the plaintiff had failed to discharge its side of the bargain was repelled. The Court found that "both parties were equally recalcitrant at one point of time." The order of May 18, 2007, in its operative part, provides for ten-fold directions in its concluding paragraph: "This application (the plaintiffs execution proceedings being EC No. 1 of 2006) succeeds. The defendant No. 3 is directed to execute and register deed of conveyance having joined Indian Express Newspapers (Bombay) Limited, Narimanpoint, Mumbai-400 021, in favour of the applicant- plaintiff in terms of decree and order dated 17th March, 2004 as per draft being Annexure I to this application upon the plaintiffs paying all costs and expenses therefor within six weeks from the date of receipt of signed copy of the minutes of this order, failing which liberty is given to mention. The defendant No. 3 is directed to deliver vacant and peaceful possession of the property in question in terms of prayer (c) of column 10 of tabular statement within fortnight from date of execution and registration of conveyance. In default thereof, liberty to mention. Costs of this application is assessed at 600 GMs to be paid by the third defendant. In view of this order subsequent application (the one made by the third defendant) fails."


(22.) The third defendant does not restrict its case on the alleged disinclination on the plaintiffs part to obtain conveyance to the period subsequent to the order of May 18, 2007 or to the period subsequent to the matters decided by such order being set at rest. The third defendant goes back to the decree of March 17, 2004 and says that the plaintiff's failure to obtain conveyance within eight weeks from the decree, the unnecessary pages expended by the plaintiff in raising queries as to the third defendant's title to the Hyderabad property, the plaintiffs failure to act in terms of the agreements recognised by the consent decree, the plaintiffs inability to put on the table the substantial sum on account of stamp-duty for the conveyance, the plaintiffs insistence on the Mumbai associate of the third defendant being added as a party to the conveyance, the plaintiffs initial attempt to bypass the consent decree and apply to Court for payment and the plaintiff's unabashed effort in putting forward Annexure I to its execution application being EC No. 1 of 2006 - all demonstrate the plaintiffs unreadiness and unwillingness in such measure that the third-defendant is entitled to rescission of the two agreements and annulment of the consent decree.


(23.) Attractive as some of the grounds are, established canons require the permissible heads to be discerned from those that are completely unavailable to the third defendant in the sense that the third defendant cannot be allowed to urge them. Be it on the touchstone of res judicata or constructive res judicata or other hues of the public policy that the underlying theory of res judicata recognises, the alleged inaction or disinclination of the plaintiff up until the order of May 18, 2007 cannot be looked into. Whether or not the third defendant urged the grounds that it now espouses in its application for rescission of the agreements and annulment of the decree, it is not open for the third defendant to cite any of them at this stage. The principle of finality of a judgment depends less on the correctness thereof than on its having become conclusive qua the parties thereto. That is not to suggest that the third defendant brings any meritorious challenge as to the basis of the order dated May 18, 2007, but merely that even if a worthy challenge were launched the Court, would be unable to probe it.


(24.) The plaintiff says that it had put in the amount on account of stamp- duty in a separate account with its Advocate-on-record, that it demanded of the third defendant that the steps required to be taken by the order dated May 18, 2007 be completed and that it has made two applications for implementation of the order dated May 18, 2007. In any event, such order remained under a cloud till the Appellate Court put its stamp of approval thereon by the order dated October 16, 2007 and, whether or not there was any stay; the cloud was finally removed by the Supreme Court dismissal of the special leave petitions on April 7, 2008. There is nothing that the third defendant brings that can question the plaintiffs readiness and willingness subsequent to April 7, 2008.


(25.) There is yet a more fundamental score on which the third defendant's present endeavour may be faulted and its motive questioned. If this be seen as an application under section 28 of the Specific Relief Act, it must be appreciated that such provision permits a judgment-debtor under a decree allowing specific performance to seek rescission of the agreement, on the post-decree conduct of the decree-holder. Ordinarily, and as section 28(1) of the Specific Relief Act expressly recognises, a decree-holder who is successful in obtaining specific performance is entitled to conveyance upon tendering the consideration or balance consideration. The third defendant criticises the stray, and apparently unsubstantiated, sentences in the plaintiffs affidavit that it had paid the first and second defendants and thus was required to do no more to obtain conveyance. This question can no longer be gone into once it is seen that the first and second defendants had assigned the debt due from the third and fourth defendants to the plaintiff. Even if the assignment is complete only upon the conveyance being executed, it does not require the plaintiff to do any more than be ready with the stamp-duty and ask for conveyance of the deed that it forwards to the third defendant.

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There is no deed that now needs to be prepared by the plaintiff, as Annexure I to the plaintiffs execution application being EC No. 1 of 2006 has been held by the order dated May 18, 2007 to be the form of the document that has to be executed for transfer of the Hyderabad property. Upon the plaintiff providing ample evidence that money on account of stamp-duty remains deposited with its Advocate, there is no further obligation that the plaintiff can be said to have been required to discharge and which the plaintiff has failed to discharge. (26.) And so, to the other counts of challenge that remain unsaid in the application but have been vociferously aired in course of argument. The plaintiff is right that such grounds should be altogether disregarded as the extent of the present exercise is to be limited to the application and the ambit of section 28 of the Specific Relief Act despite any temptation to step out and kill all the spin in the googly or wrong one or chinaman that the third defendant delivers. Since it is the fearful stick of nullity that the third defendant brandishes not only to beat the plaintiff with but also to undermine orders of Court that have attained finality, it is a matter that needs to be met. (27.) The first three additional grounds urged have been voiced with an undertone of nullity. The challenge to the order of May 18, 2007 on the ground of section 39 of the Code has been discussed and discarded by the Appellate Court. Whether or not the Appellate Court decision on such aspect runs foul of the Mohit Bhargava dictum of the Supreme Court, it is a matter concluded between these parties and, in any event, a judgment of a superior forum and not open to question here. That consent terms could not be varied except by consent was an argument open to the third defendant in its appeal at the second stage and whether or not it was urged it cannot be pursued here. It is equally difficult to accept that a Judge of a High Court carrying over a partly-heard matter from his interlocutory determination can be said to have inherently lacked jurisdiction to modify the decree as he was to be considered only as the Executing Court while deciding the plaintiff's application being EC No. 1 of 2006. Again, such point is not open to the third defendant after its failed appeal from the order of May 18, 2007. (28.) The special feature of nullity that the third defendant chants is a vain effort, in the present context, to make a distinction without a difference. Nullity is no magic wand to wish away every unfavourable finding. It is no mantra that opens up every closed portal. A challenge on the ground of nullity cannot be repeated ad nauseum to improve its worth and its various shades explored at successive bends till a best fit is found which would stick. A plea of nullity levelled and negated precludes a suitor from re-agitating it as much as any lesser charge. And, nullity, like patriotism elsewhere, is often a last refuge of the desperate. (29.) The first three additional grounds argued are simply not available to the third defendant at this stage. In asserting the fourth additional ground inspired by the Supreme Court observation, the third defendant appears to have jumped the gun somewhat. Even if there is any sting for the plaintiff in the tail of the order dated April 7, 2008, this is hardly the juncture to cite it and seek rescission of the agreements or annulment of the decree. (30.) The application fails without even considering the point of limitation raised by the plaintiff. GA No. 1349 of 2008 is dismissed with costs assessed at 6000 GMs.
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