When limitation will commence in suit for specific performance?

Limitation   Act,   1963   –   Art.   54   –   Specific   performance   of  
contract – Date from which time runs – Held, either from date fixed for  
performance of contract, or if no such date fixed, then from date when 
plaintiff has notice that performance is refused – Amendment sought  
by vendee in suit seeking relief of specific performance – Amendment  
opposed   by   vendors   –   Held   amounted   to   notice   to   vendee   that  
performance is refused, and therefore limitation period began to run  
from date of opposition to said amendment.”  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.208 of 2013

 Smt. Kalawatibai wd/o Champatrao Satpute,

... Versus ...
Prakash s/o Vitthalrao Kondawar,
Citation;2014(3) ALL MR 534
CORAM : PRASANNA B. VARALE, J.
DATE     : AUGUST 12, 2013.

By the present second appeal, the appellants are challenging 

the   judgment   and   decree   passed   by   the   learned   District   Judge­1, 
Pandharkawada, dated 11/03/2013.
02]
The brief facts giving rise to the present appeal can be summarized 
as follows :
The appellants herein filed suit for specific performance of contract 
of   sale   with   an   alternative   prayer   of   refund   of   the   earnest   money   under   the 
provisions of the Specific Relief Act.   The subject matter of the proceedings was 
the lands having area 3 acres and 23 gunthas from Survey No.14/1 and 11 acres 
17 gunthas from Survey No. 14/2 of village Gaurala, Tahsil Moregaon, District 
Yavatmal. It was the case of the plaintiff that the defendants agreed to sale the 
suit   property   to   the   original   plaintiff   Champatrao   for   a   total   consideration   of 
Rs.67,000/­.  On the day of the agreement, plaintiff Champatrao paid Rs.10,000/­ 
towards earnest money.  Sale­Deed was to be executed on 15/04/1982.  It was the 
further case of the plaintiff that Rs.30,000/­ were to be paid on 31/12/1981 and 

as such the original plaintiff paid an amount of Rs.24,000/­ in cash and issued 
three cheques of Rs.2,000/­ each.   As it came to the knowledge of the plaintiff 
that the  defendants were  in arrears of Rs.1,651.76  ps. towards charges of the 
State Electricity Board and as those charges were not paid, the electricity supply 
was disconnected. It also came to the knowledge of the  plaintiff that as some 
house taxes were also due against the defendants, the plaintiff intimated his bank 
for stop of payment.  Out of the three cheques issued by the plaintiff, two cheques 

were encashed.  It was the case of the plaintiff that the balance consideration was 
to the tune of Rs.27,000/­ and the defendants had agreed to execute the sale­deed 
on or before 15/04/1992 in discharge of their liability.  It was further the case of 
the plaintiff that the suit lands were mortgaged by defendants with State Bank of 
India and the defendants were having an outstanding liability of Rs.14,000/­.  The 
plaintiff   submitted   that   the   defendants   agreed   to   him   to   clear   encumbrances 
before execution of the sale­deed.   The plaintiff called upon the defendants by 
issuing   notice   dated   26/04/1982   to   discharge   their   liabilities.     In   reply   dated 
17/01/1983, the defendants agreed to discharge their liability before execution of 
the sale­deed and asked him to remain present in the Office of Sub­Registrar on 
09/02/1983. But till 09/02/1983, the defendants failed to discharge their liability. 
Again   a   notice   dated   22/04/1986   was   issued   calling   upon   the   defendants   to 
discharge their  liability, but in spite of  an oral assurance, the liability was  not 
discharged by the defendants.  It was further the case of the plaintiff that in the 
meantime, it came to the knowledge of the plaintiff that a civil suit namely R.C.S. 
No.107/1983 before the learned Civil Judge Junior Division, Wani   was decreed 

against the defendants and on the basis of the decree, execution petition bearing 
No.56/1985 was preferred and in the said execution proceedings the suit fields 
were   attached.     The   plaintiff,   therefore,   filed   M.J.C.   No.5/1985   raising   an 
objection.   The   plaintiff   by   participating   in   the   proceedings,   expressed   his 
readiness and willingness to purchase the suit property, but the defendants were 
reluctant to discharge their liability.  The plaintiff had also filed a pursis at Exh.33 
in the execution proceedings and called upon the defendants to remain present 

before   the   Sub­Registrar,   Wani   on   28/01/1989   and   though   the   plaintiff   by 
remaining present there with the stamps of Rs.2,350/­, the defendants failed to 
execute the sale­deed.  On these grounds, the suit was filed.  
The   defendants   resisted   the   claim   of   the   plaintiff   by   filing   their 
written statement and counter claim.  It was the case of the defendants that the 
contract between the parties was for 3 acres and 23 gunthas of land from Survey 
No.14/1 with well and a constructed farm house.  As per the defendants, the total 
land was approximately 15 acres.  According to the defendants, the contract was 
reduced into writing and finalized on 20/06/1981.   The document was named 
and styled as 'Visarpurva Chitthi'.  On 20/06/1981, the plaintiff paid an amount of 
Rs.4,000/­   as   part   of   the   earnest   amount   by   agreeing   to   pay   Rs.6,000/­   by 
01/08/2081 towards balance of earnest amount. It was the case of the defendants 
that   as  per   the   terms  agreed   upon  by   the   parties,   on  payment   of  the  balance 
amount of Rs.6,000/­, the document was to be executed in favour of the plaintiff. 
It was further the case of the defendants that plaintiff was to pay Rs.30,000/­ on 
or   before   31/12/2081   and   the   defendants   was   to   place   the   plaintiff   in   “Khas 

Possession”   of   the   suit   property.     Thus   it   was   the   case   of   the   defendants   that 
payment of Rs.30,000/­ on or before 31/12/1981 was a condition precedent for 
delivery of the property.  It was further the case of the defendants that on failure 
to pay Rs.30,000/­ on or before 31/12/1981, they would be entitled to forfeit the 
amount   of   Rs.10,000/­   received   from   the   plaintiff.     As   per   the   terms,   if   the 
plaintiff would have paid Rs.30,000/­ as agreed initially and further would have 
paid an amount of Rs.27,000/­ on or before 15/04/1982, the plaintiff would have 

been entitled  to  claim sale­deed  and  registration at  his  costs.   The  defendants 
submitted   that   as   the   plaintiff   failed   to   pay   Rs.30,000/­   before   the   stipulated 
period   i.e.   on  or   before   31/12/1981   and   also   failed  to   pay  Rs.27,000/­  on  or 
before 15/04/1982, the plaintiff was also liable to pay damages of Rs.10,000/­ in 
failure   to   pay   the   above   referred   amount,   and   in   failure   of   the   terms   by   the 
plaintiff, the defendant was entitled to be restored in possession of the property. 
It   was   also   the   case   of   the   defendants   that   they   were   to   be   discharged   of 
encumbrances at the time of execution of registration of sale.  It was the case of 
the defendants that as per the terms of contract between the parties, the delivery 
of the possession was on complying of the terms of payment of the amount of 
Rs.30,000/­ on or before 31/12/1981.  It was also the case of the defendants that 
there occurred a mistake in writing the amount in the written contract between 
the  parties dated  20/06/1981, the  defendants emphasized  that  as the  plaintiff 
committed default of the terms of contract namely failure in making payment of 
Rs.30,000/­ on or before 31/12/1981, a communication as a reminder was issued 
to the plaintiff on 13/04/1982 calling upon the plaintiff to pay full consideration 

amount and get the sale­deed executed.   It was the case of the defendants that 
though the defendants were present in the office of Sub­Registrar on 15/04/1982, 
the plaintiff did not turn up and as such the defendant by issuing notice dated 
16/04/1982 cancelled the contract and informed the plaintiff about it.  It was the 
case of the defendants that as the amount due toward M.S.E.B. charges and house 
taxes was a partly amount and less than Rs.2000/­, the plaintiff ought not to have 
made   any   hue   and   cry   of   that   amount,  but   the   plaintiff   himself   was   not  in  a 
ig
position to clear the amount as agreed in cash.   The plaintiff was neither ready 
nor willing to perform his part of contract.  As the plaintiff failed to comply with 
the terms of the agreement between the parties, the defendants by issuing notice 
dated  16/04/1982  rescinded  the  contract and  informed  the  plaintiff about the 
same.     The   defendants   also   raised   the   ground   that   the   suit   was   barred   by 
limitation.  It was also the case of the defendants that they had concealed the fact 
of obtaining loan from State Bank of India by mortgaging one of the fields.  It was 
also   the   case   of   the   defendants   that   the   defendants   were   all   along   in   the 
possession of the suit lands and possession was never handed over and delivered 
to the plaintiff and on the contrary, the plaintiff tried to take forcible possession. 
The defendants thus resisted the claim of the plaintiff and also filed a counter 
claim. 
03]
Issues were framed by the learned Civil Judge Senior Division.  The 
learned Civil Judge Senior Division, Pandarkawada arrived at a conclusion that 
the suit filed by the plaintiff fails on two grounds namely the suit is hopelessly 
time   barred   and   the   plaintiff   failed   to   prove   his   readiness   and   willingness   to 

perform his part of contract.   Accordingly, the suit was dismissed.   The counter 
claim of the defendants was allowed and the plaintiff was ordered to handover 
the possession of the suit lands within three months.
04]
Feeling   dissatisfied   with   the   judgment   and   order   passed   by   the 
learned Civil Judge Senior Division, Pandharkawada, the plaintiff preferred appeal 
before   the   learned   District   Judge­1,   Pandharkawade.     The   appeal   was   also 
dismissed with costs by the judgment and order passed by the learned District 
ig
Judge, Pandharkawada.  The substantial questions raised by the plaintiff viz. Are 
the Courts below erred in non suiting the plaintiff on the ground of limitation, the 
Courts   below   erred   in   holding   that   the   time   was   essence   of   the   agreement 
between the parties.
The learned Civil Judge Senior Division, Pandharkawada, on remand 
05]
of the suit, recasted the earlier issues framed  and decided  the  suit along  with 
additional issues framed by him.  The learned Civil Judge Senior Division on the 
material issues, viz. Does plaintiff prove that he was ready and willing to perform 
his part of contract ?; Does plaintiff prove that defendants had committed breach 
of contract ? and Is plaintiff entitled to relief of specific performance i.e. execution 
of sale deed of suit lands ?, arrived at negative findings, whereas on the issue that 
Are defendants entitled to counter claim for possession as alleged ?, recorded an 
affirmative finding.   On the additional issues namely Whether suit is barred by 
law of Limitation ?, the learned Civil Judge recorded positive finding, whereas 
recorded negative finding on the issue that Whether plaintiff is entitled to refund 
of earnest amount and damages ?

Feeling aggrieved by the judgment and order passed by the learned 
06]

Civil Judge Senior Division, the plaintiff preferred an appeal before the learned 
District   Judge.     The   learned   District   Judge   finding   no   case   for   showing   any 
interference dismissed the appeal, whereas the counter claim was allowed.   The 
plaintiff,   who   is   the   appellant   before   this   Court,   has   raised   the   following 
substantial questions of law :
That the Courts below erred in non­suiting the plaintiff on the 
(A)

ground   that   the   suit   for   specific   performance   was   barred   by 
limitation.  In Paragraphs 4 and 5 of the plaint, it was averred by 
the plaintiff that the suit fields had been attached in a Civil Suit 
that   was   filed   by   the   State   Bank   of   India   against   the   original 
defendants   in   which   suit,   the   plaintiff   had   filed   pursis   on 
31/03/1989   expressing   willingness   to   purchase   the   aforesaid 
lands pursuant to agreement dated 01/08/1981.   In the written 
statement,   the   defendants   admitted   contents   of   aforesaid 
paragraphs   including   the   cause   of   action   as   pleaded   by   the 
plaintiff.  In such a situation, when there was no serious contest 
on   the   aspect   of   the   date   when   the   cause   of   action   arise,   the 
Courts below could not have ignored the aforesaid pleadings for 
non­suiting   the   plaintiff   on   the   point   of   limitation.     This 
erroneous approach gives rise to a substantial question of law.
(B)
That the Courts below fell in error in holding that time was the 
essence of the agreement between the parties.  The Courts below 

failed   to   notice   that   the   defendants   by   issuing   notice   on 
10/01/1983 had extended the time to execute the sale deed by 
09/02/1983.     Further   it   was   not   stated   in   the   subsequent 
communications after extension of time that the agreement stood 
cancelled at the instance of the defendants.  Further, there was no 
reply to the notice issued by the plaintiff on 22/04/1986.   This 
clearly   established   that   time   was   never   the   essence   of   the 
ig
contract.     Hence   on   account   of   non­consideration   of   relevant 
material on record, the findings recorded on the aspect of time 
being   an   essence   of   the   contract   as   well   as   on   the   issue   of 
limitation are perverse and same gave rise to another substantial 
question of law.
(C)
That, the defendants having admitted the cause of action to have 
arisen   on   28/04/1989   it   was   clear   that   the   suit   as   filed   was 
within   limitation.     While   refusing   the   decree   for   specific 
performance,   the   Courts   below   failed   to   consider   even   the 
alternate prayer for refund of the earnest amount and the suit in 
its   entirety   has   been   wrongly   dismissed.     Assuming   without 
admitting that the plaintiff was not entitled for decree for specific 
performance,  the  alternate   prayer  for  refund  of  earnest  money 
was   not   barred   by   limitation   and   same   ought   to   have   been 
considered on its merits.   Failure to do so, gives rise to another 
substantial question of law.

That,   the   conduct   of   the   defendants   in   not   disclosing   the 
(D)
encumbrances that had been created by them in the suit lands 
and further reluctance to clear the same has not been considered 
by   the   Courts   below.     On   the   other   hand,   the   readiness   and 
willingness   of   the   plaintiff   is   quite   evident   from   the   record   in 
view of various steps taken by the plaintiff including participating 
in the Darkhast proceedings that had been initiated by the State 

Bank   of   India   against  the  defendants   for   recovery   of  amounts. 
This aspect clearly proved that the plaintiff was always ready and 
willing  to  perform   his  part   of   the   agreement   while   defendants 
were guilty of suppression of material facts and non­disclosure of 
encumbrances on the suit land.  
(E)
That, the Courts below erred in decreeing the counter claim that 
was  filed  by  the   defendants.    On  a   proper   appreciation  of   the 
material   on   record,   it   is   clear   that   the   suit   for   specific 
performance was required to be decreed and the counter claim 
was required to be dismissed.
07]
Learned Counsel Mr. Mirza for the appellants vehemently submitted 
that both the Courts have erred in arriving at the conclusion that the claim of the 
plaintiffs was time barred i.e. suit filed by the plaintiffs (appellant herein) was 
time barred.  Mr. Mirza further submitted that the defendants though entered into 
an agreement, failed to pay the agreed amount. He further submitted that the 
plaintiffs initially were not aware to the fact that the property was mortgaged to 

financial   institute   like   Bank   and   execution   proceedings   were   already   pending. 
Mr. Mirza further submitted that the appellants were ready and willing to deposit 
the amount but for the subsequent disclosure of the mortgage, the   plaintiffs/ 
appellants were slow in performance of the agreement.  It was the submission of 
Mr. Mirza on the backdrop of the provisions of the Limitation Act that though a 
date was fixed in the agreement, the same was extended by action of the parties 
and   that   there   was   no   refusal   on   the   part   of   the   plaintiffs.     Mr.   Mirza   also 

submitted that a pursis was filed on record and the learned Courts below failed to 
appreciate that the receipt was placed on record submitting that the amount was 
paid.  Mr. Mirza further submitted that by act of the parties, the parties agreed for 
extension of the time for performance of the contract and on the backdrop of such 
extension of time, the Courts below ought not to have arrived at a conclusion that 
the suit filed by the plaintiffs was barred by limitation.  Mr. Mirza, in support of 
his submission, placed heavy reliance on the following judgments :
(i)

Nathulal vs. Phoolchand, reported in  AIR 1970 SUPREME COURT  
  
546(1).
(ii)  
Panchanan   Dhara   and   others   vs.   Monmatha   Nath   Maity   (dead)  

through Lrs. and another, reported in ( 
  2006) 5 SCC 340.

(iii)  
Agya Rani Dua vs. Vidyagauri J. Tripathi and another reported in 
  
2007(3) Mh.L.J. 480.
08]
Mr.   Mirza   also   submitted   that   the   appellants   are   raising   certain 
additional substantial questions of law as follows :
1. Whether the Courts below were justified in dismissing the suit on 

the   ground   of   limitation   though   in   terms   of   Article   54   of   the 
Limitation Act, the period prescribed therein shall began from the 
date fixed for performance or when the plaintiff has noticed that 
performance   is   refused,   admittedly   in   this   matter   the   date   was 
extended   by   the   defendant   and   performance   was   not   refused   till 
filing of suit ?
2. Whether the learned Courts below were justified in holding that, the 

plaintiff is not in legal possession of suit field, though section 53­A 
of   Transfer   of   Property   Act   protects   possession   taken   by   the 
Transferee in part performance of the contract ?
3. Whether   the   learned   Courts   below   have   properly   construed   the 
terms of agreement to sale dated 01/08/1981 and further receipt 
dated 30/12/1981 executed on same document (Exh.36) ?
4. Whether the parameters applied by Courts below while shifting the 
burden of proving readiness and willingness on the plaintiff is as per 
the provisions of Section 55 of the Contract Act that too emerging 
the fact of suppression of mortgage of suit field by defendant ?
5. Whether   the   defendant­vendor   is   guilty   of   suppression   of   fact   of 
mortgage   and   did   not   perform   his   obligation   of   clearing   the 
mortgage, can be permitted to take advantage of his own wrong and 
then to raise the plea of limitation.  
09]
Per contra  learned Counsel Mr. Madkholkar for the respondents in 
his   detailed   submissions   raised   the   point   namely   the   appeal   is   not   at   all 

entertainable  as it is lacking  any substantial question of law.   Mr. Madkholkar 
submitted   that   though   the   appellant   has   named   and   styled   the   substantial 
questions   of   law   initially   and   also   subsequently   as   the   additional   substantial 
questions of law, none of these can be termed to be a substantial question of law. 
Mr. Madkholkar further submitted that these so called substantial questions of law 
are only a challenge on the factual aspects, which are already raised before the 
learned Civil Judge Senior Division while deciding the suit as well as before the 

Appellate Court while deciding the appeal.   Mr. Madkholkar also submitted that 
the   learned   Civil   Judge   Senior   Division   on   appreciation   of   the   oral   and 
documentary evidence arrived at a conclusion that the suit filed by the plaintiffs 
was time   barred   suit.    The   learned   Civil   Judge   Senior  Division  as  well   as   the 
Appellate   Court   further   arrived   at   a   conclusion   that   the   plaintiff   was   not   in 
possession of the property and as such the judgment and order was passed by 
both the Courts below against the plaintiff.   Mr. Madkholkar further submitted 
that   in   view   of   the   judgment   of   the   Apex   Court,   the   Second   Appeal   can   be 
entertained only when the substantial question of law is raised,   whereas in the 
present appeal, no substantial question of law is involved and the challenge of the 
appellants   is   only   on   the   factual   aspect   of   the   case.     Mr.   Madkholkar   further 
submitted that even the plaint filed by the appellants/plaintiffs does not satisfy 
the form as required under the provisions of the Code of Civil Procedure and the 
requirement as per Form No.47 and Form No.48.  In a counter to the submissions 
of  the   learned  Counsel  Mr.  Mirza  for   the   appellants  that  a  pursis  was  filed  to 
shows   that   the   time   was   extended   by   the   act   of   parties,   learned   Counsel   Mr. 

Madkholkar for the respondents submitted that as the pursis finds no place in the 
Code, the sanctity of the so called document/pursis is hardly of any substance 
and,   therefore,   filing   of   the   pursis   in   execution   proceedings   on   behalf   of   the 
appellants/plaintiffs   has   no   barring.     Mr.   Madkholkar,   in   support   of   his 
submissions ,placed heavy reliance on the following judgments :
1.  
T.L. Muddukrishana and another vs. Smt. Lalitha Rammchandra Rao,
  
reported in AIR 1997 SC 772.

2.  
Venkappa   Guruppa   Hosur   vs.   Kasawwa   c/o.  Rangappa   Kulgod
 , 
reported in AIR 1997 SC 2630.
3.  
Shakuntala (Smt) vs. Narayan Gundoji Chavan and others, reported 
  
in (1999) 8 SCC 587.
4.  
Manjunath   Anandappa   Urf.   Shivappa   Hansi   vs.   Tammanasa   and  

others, reported in 2003 AIR SCW 1830.
5.  
Pukhraj D. Jain and others vs. Gopalakrishna, reported in  (2004) 7 
  
SCC 251.
6.  
R.K. Parvatharaj Gupta vs. K.C. Jayadeva Reddy,
  reported in (2006) 2  
SCC 428.
7.  
Gunwantbhai   Mulchand   Shah   and   others   vs.   Anton   Elis   Farel   and
  
others, reported in (2006) 3 SCC 634.
8.  
Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and  

others, reported in (2009) 5 SCC 462.
9.  
Ram Niwas Gupta vs. Mumtaz Hasan and others,
  reported in (2008) 
17 SCC 362.

10.  
Gurdev Kaur and others vs. Kaki and others,
  reported in AIR 2006 SC  
10]
1975.
On   perusal   of   the   judgment   of   the   learned   Civil   Judge   Senior 
Division in R.C.S. No.64/2008, it reveals that the sale­deed was to be executed on 
15/04/1982 and the parties were expected to remain present in the Office of Sub­
Registrar, Wani for execution of sale­deed on 15/04/1982.   The defendants on 
13/04/1982   intimated   the   plaintiff   in  advance   by   issuing   a   communication   to 

remain present in the office of Sub­Registrar, Wani on 15/04/1982 for execution 
of sale­deed.  Though the defendants were present in the Office of Sub­Registrar, 
Wani on the given date, the plaintiff did not turn up as such the defendants by 
issuing   notice   terminated   the   contract   and   resultantly   the   sale­deed   was   not 
executed.  It is interesting to note that the plaintiff has not deposited the receipt 
of the notice.  On the appreciation of the documents placed on record, the learned 
Civil   Judge   Senior   Division   found   that   a   notice   was   issued   by   the   defendants 
dated 10/01/1983 about extension of time to 09/02/1983 for execution of sale­
deed.  The notice was replied by the plaintiff.  The ground raised by the plaintiff 
that he had purchased some stamp paper on 0`9/02/1983, and as such he was 
present on the given date was not accepted by the learned Civil Judge Senior 
Division on the ground that merely because some stamps purchased on that date 
would not lead to a conclusion that the plaintiff was present in the office of the 
Sub­Registrar.   In my opinion, no fault can be found with the view taken by the 
learned Civil Judge Senior Division.   Though in explanation, it was tried to be 
offered by the plaintiff for not performance of the contract on his part because of 

a   belated   disclosure   of   the   mortgage   of   the   property,   both   the   Courts   i.e.   the 
learned Civil Judge Senior Division as well as the Appellant Court, found that the 
explanation  offered   by  the   plaintiff   is  neither   convincing   nor   acceptable.     The 
learned Civil Judge Senior Division on appreciation of the evidence arrived at a 
conclusion that the fact that there were certain dues towards M.S.E.B. and house 
taxes, the property was mortgaged to the bank was made known to the plaintiff 
and   as   such   there   was   neither   misleading   nor   concealing   at   the   hands   of   the 
The   learned   Civil   Judge   Senior   Division   on   appreciation   of   the 
12]

defendants.
evidence found that the possession of the property was never delivered to the 
plaintiff and it was with the defendants.   Thus, on the factual aspects, on the 
backdrop of the oral evidence as well as documentary evidence, both the Courts 
found   no   favour   with   the   case   of   the   plaintiff.     Though   it   was   an   attempt   of 
learned   Counsel   Mr.   Mirza   for   the   appellants   to   submit   that   as   the   time   was 
extended by the act of the parties, the conclusion arrived at by the Courts below 
that the suit was time barred is an erroneous conclusion, I am unable to accept 
the submission of the learned Counsel Mr. Mirza.
13]
Mr.   Madkholkar,   learned   Counsel   for   the   defendants   has   made 
available the copy of plaint for my perusal.  On perusal of the copy of plaint, I find 
considerable merit in the submissions of the learned Counsel Mr. Madkholkar that 
the plaint fails to satisfy the necessary requirement.   Mr. Madkholkar submitted 
that though it is stated in the plaint that the defendants did not discharge their 
liability till 09/02/1983 and the plaintiff issued notice on 22/04/1986 upon the 

defendants and asked them to perform their part of contract.   Mr. Madkholkar 
further submitted that the plaintiff has kept a convenience silence about his part 
for   the   period   from  1983   to   1986.     Mr.  Madkholkar   further   submitted   on  the 
backdrop of the fact of the case that the suit filed by the plaintiff itself was barred 
by limitation.  Mr. Madkholkar also submitted that as the time was essence of the 
contract and the plaintiff failed to show his readiness and willingness to perform 
the contract, the ultimate result was that the suit was dismissed on account of 

these two grounds.  Mr. Madkholkar also submitted that as no error can be found 
either   in   appreciation   of   the   evidence   or   in   the   conclusion   arrived   at   by   the 
learned Civil Judge Senior Division as well as the learned Appellate Court, the 
appeal is wholly meritless and deserves to be dismissed.   Mr. Madkholkar also 
submitted that as the plaintiff miserably failed to prove that the suit was within 
limitation in absence of the specific pleadings in the suit, his attempt for raising 
additional substantial grounds of law, which would lead to an amendment, either 
is not sustainable nor acceptable.  
14]
Mr. Madkholkar, in support of his submissions, placed heavy reliance 
on the judgment of the Apex Court  in the case of T.L. Muddukrishana and another  
vs.   Smt.   Lalitha   Rammchandra   Rao,  reported   in  AIR   1997   SC   772.  As   the 
defendants   was   successful   in   establishing   his   case   that   the   suit   filed   by   the 
plaintiff was barred by limitation, it will be necessary to consider the judgment 
relied by the learned Counsel Mr. Madkholkar for the defendants in support  of his 
submissions.     Mr.   Madkholkar,   in   support   of   his   submission,   has   also   placed 
reliance on the judgment of the Apex Court in case of Venkappa Guruppa Hosur vs.  

Kasawwa c/o. Rangappa Kulgod,  reported in  AIR 1997 SC 2630,  wherein it has 
been held that, “it could be seen that the suit document itself was denied as early as  
in 1960.  As a consequence, mere issuance of notice dated August 22, 1972 does not  
stop the running of limitation period.  Once the same has began to run, it runs its  
full course.  Therefore, the suit having been filed after the expiry of 3 years from the  
date of the knowledge of denial, by operation of Article 54 of the Schedule to the  
Limitation Act, 1963, the suit is hopelessly barred by limitation.   The High Court,  

therefore, is right in dismissing the suit in the second appeal”. The   facts   of   the 
present case are nearly identical and as such the learned Counsel Mr. Madkholkar 
was justified in placing reliance on those judgments in support of his submission. 
Similar is the case in the judgment of the Apex Court in the case of  Shakuntala  
(Smt) vs. Narayan Gundoji Chavan and others, reported in (1999) 8 SCC 587.  The 
issue   is  also  dealt  in detail   in  the  judgment  of  the   Apex   Court  in  the   case   of 
Manjunath Anandappa Urf. Shivappa Hansi vs. Tammanasa and others, reported in 
2003 AIR SCW 1830, wherein the the Apex Court observed thus :  
12.
The basic fact of the matter is not in dispute. The agreement  
was   entered   into   on   or   about   1.10.1978.   Apart   from   the   vague  
statements made in Paragraph 6 of the plaint as noticed hereinbefore,  
the plaintiff has not placed any material on record to show that at any  
point of time and far less within a period of 3 years from the date of  
the said agreement, he ever asked Defendant No. 1 to execute a deed of 
sale in his favour or tendered the balance amount of consideration to  
her. The plaintiff admittedly served a notice dated 8.8.1984 upon the  

Defendant No. 2 alone, that is much after the expiry of the said period  
of 3 years. He, only upon having come to learn that Defendant No. 1  
had transferred the property in suit in favour of the appellant herein,  
filed   the   suit.   Admittedly   the   Defendant   No.   1   did   not   receive   any  
notice.
Section 16(c) of the Specific Relief Act reads thus:
13.

"Specific performance of a Contract cannot be enforced in favour of a  
person,   who   fails   to   aver   and   prove   that   he   has   performed   or   has  
always been ready and willing to perform the essential terms of the  
contract which are to be performed by him, other than terms of the  
performance of which has been prevented or waived by the defendant."
15.
Forms   47   and   48   of   the   Appendix   A   of   the   Code   of   Civil  
Procedure prescribe the manner in which such averments are required  
to be made by the plaintiff. Indisputably, the plaintiff has not made  
any   averment   to   that   effect.   He,   as   noticed   hereinbefore,   merely  
contended that he called upon defendant No. 2 to bring defendant No.  
1 to execute a registered sale deed. Apart from the fact that the date of  
the   purported   demand   has   not   been   disclosed,   admittedly   no   such  
demand   was   made   upon   defendant   No.   1.   We   may   notice,   at   this  
juncture, that the plaintiff in his evidence admitted that defendant No.  
1 had revoked the power of attorney granted in favour of defendant  
No. 2. In his deposition, he merely stated that such revocation took  

place after the agreement for sale was executed. If he was aware of the 
fact that the power of attorney executed in favour of defendant No. 2  
was revoked, the question of any demand by him upon the defendant  
No. 2 to bring the defendant No. 1 for execution of the agreement for  
sale would not arise at all. Furthermore, indisputably the said power  
of attorney was not a registered one. Defendant No. 2, therefore, could  
not execute a registered deed of sale in his favour. The demand, if any,  

for execution of the deed of sale in terms of the agreement of sale could  
have been, thus, made only upon the Defendant No. 1, the owner of  
the property. The balance consideration of Rs.10,000/­ also could have  
tendered   only   to   Defendant   No.   1.   As   indicated   hereinbefore,   the  
purported notice was issued only on 8.8.1984, that is, much after the  
expiry of period of three years, within which the agreement of sale was  
required to be acted upon.
30.
There is another aspect of the matter which cannot be lost sight  
of. The plaintiff filed the suit almost after six years from the date of  
entering into the agreement to sell. He did not bring any material on  
records to show that he had ever asked defendant No. 1, the owner of  
the property, to execute a deed of sale. He filed a suit only after he  
came to know that the suit land had already been sold by her in favour  
of the appellant herein. Furthermore, it was obligatory on the part of  
the   plaintiff   for   obtaining   a   discretionary   relief   having   regard   to  
Section 20 of the Act to approach the court within a reasonable time.  

Having   regard   to   his   conduct,   the   plaintiff   was   not   entitled   to   a  
15]
discretionary relief.
Thus Mr. Madkhodkar also justified in his submission in respect of 
the suit filed by the plaintiff being time barred and also missing the requirement 
of the Code under Form Nos. 47 and 48.   The Apex Court also in the case of 
Pukhraj D. Jain and others vs. Gopalakrishna, reported in (2004) 7 SCC 251 held 
“C.

thus :
Limitation   Act,   1963   –   Art.   54   –   Specific   performance   of  
contract – Date from which time runs – Held, either from date fixed for  
performance of contract, or if no such date fixed, then from date when 
plaintiff has notice that performance is refused – Amendment sought  
by vendee in suit seeking relief of specific performance – Amendment  
opposed   by   vendors   –   Held   amounted   to   notice   to   vendee   that  
performance is refused, and therefore limitation period began to run  
from date of opposition to said amendment.”  
The facts of this case are identical and as such the judgment of the 
Apex Court in the case of R.K. Parvatharaj Gupta vs. K.C. Jayadeva Reddy, reported 
in  (2006) 2 SCC 428  is applicable to the present case, as relied by the learned 
Counsel Mr. Molkhodkar.  
16]
Learned   Counsel   Mr.   Madkholkar   also   placed   reliance   on   the 
judgment of the Apex Court in the case of Ahmadsahab Abdul Mulla (2) (dead) by  
proposed Lrs. vs. Bibijan and others, reported in (2009) 5 SCC 462. He was right in 

submitting that the controversy, if any, is set at restby the Apex Court in case of 
Ahmadsahab   Abdul   Mulla   (2)   (dead)   by   proposed   Lrs.   vs.   Bibijan   and   others, 
reported in  (2009) 5 SCC 462,   the Apex Court, on the backdrop of the earlier 
judgments   and   the   word   “date”,   arrived  at   a   conclusion,   which   is  reflected   in 
Paras 9, 10, 11, and 12.  Learned Counsel Mr. Madkholkar also placed reliance on 
the judgment of the Apex Court in the case of Gurdev Kaur and others vs. Kaki and  
others, reported in AIR 2006 SC 1975 in support of his submission relating to the 

scope of Section 100 of the Code, wherein the Apex Court observed that, the High  
Court would have jurisdiction of interfering under S.100, C.P
.C. only in a case where  
substantial   questions   of   law   are   involved   and   those   questions   have   been   clearly  
formulated in the memorandum of appeal.   It is further observed that  it must be  
clearly understood that the legislative intention was very clear that legislature never  
wanted second appeal to become 'third trial on facts' or 'one more dice in the gamble' 
The Apex Court also observed in Para 69 thus :
“Now,   after   1976   Amendment,   the   scope   of   Section   100   has  
been drastically curtailed and narrowed down. The High Courts would  
have jurisdiction of interfering under Section 100 C.P
.C. only in a case  
where substantial questions of law are involved and those questions  
have been clearly formulated in the memorandum of appeal. At the  
time of admission of the second appeal, it is the bounden duty and  
obligation of the High Court to formulate substantial questions of law  
and then only the High Court is permitted to proceed with the case to  
decide   those   questions   of   law.   The   language   used   in   the   amended  

section specifically incorporates the words as "substantial question of  
law" which is indicative of the legislative intention. It must be clearly  
understood that the legislative intention was very clear that legislature  
never wanted second appeal to become "third trial on facts" or "one  
more   dice   in   the   gamble".   The   effect   of   the   amendment   mainly,  
The High Court would be justified in admitting the second appeal  
ig
(i)
according to the amended section, was:
only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question; 
(iii) A duty has been cast on the  High Court to formulate  substantial  
question of law before hearing the appeal; 
(iv) Another part of the Section is that the appeal shall be heard only on  
that question.
17]
Thus   on   appreciation   of   the   judgment   and   order   passed   by   the 
learned Civil Judge Senior Division and the Appellate Court on the backdrop of 
the submission of the learned Counsel Mr. Madkholkar and the judgments of the 
Apex Court, in my opinion, the present appeal is devoid of merit.  The appellants 
have miserably failed to raise any substantial question of law.   The appeal thus 
being wholly meritless, no indulgence is warranted.  
In the result, the appeal is dismissed.