It has to be held that the suit is not barred by limitation as there
was no refusal on the part of the defendant No. 1 to perform his
part of contract. The suit instituted therefore is not barred by
limitation. The substantial questions of law as framed are
answered accordingly.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 282 OF 1992
Venunath S/o Sambha More
V E R S U S
Limbabai D/o Abaji Jamdar
CORAM : R.G.KETKAR, J.
DATE OF JUDGMENT : 17 th NOVEMBER, 2014
Citation;AIR 2015(NOC)468 Bom,2015(1)ABR341
By this Appeal, u/s 100 of the Code of Civil
2.
Procedure, 1908 (for short, ' C.P.C.' ), original defendant No. 2
has challenged the Judgment and decree dated 30/06/1980
passed by the learned Civil Judge, Senior Division, Ausa in R.C.S.
No. 62/1980, as also the Judgment and decree dated 11/02/1992
passed by the learned Additional District Judge, Latur in R.C.A.
No. 96 of 1986. By these orders, the Courts below decreed the
Suit instituted by Limbabai D/o Abaji Jamdar through her legal
representative for specific performance of contract dated
12/08/1973. The Courts below directed the legal representative
of defendant No. 1 Niranjan and defendant No. 2 Venunath
Sambha More to jointly execute the registered sale deed in favour
of the plaintiff after accepting the consideration of ` 500/
(Rupees Five Hundred only ) in respect of house bearing 1166
(old), which is renumbered as 1318/1 (new) admeasuring East
West 87 feet from southern side and 57 feet from northern side
and 32 1⁄2 feet NorthSouth including 7 khan Dhaba bounded by
Govt. road from East, by the land and house of Dwarkadas from
West, by the house of Sambha More from South and the open
house No. 1166/1 from northern side at Ausa. (for short, ' suit
house ' ). The Courts below also declared that the sale deed
dated 16/07/1977 executed by defendant No. 1 Niranjan in
favour of defendant No. 2 Venunath Sambha More is not binding
on the plaintiff. Defendant No. 2 is permanently restrained from
causing any interference or obstruction in the peaceful possession
of the plaintiff over suit house. The parties shall hereinafter
referred to as per their status in the trial Court. The relevant and
material facts giving rise to the present Second Appeal are as
follows.
3.
The plaintiff instituted Suit for specific performance
of contract dated 12/08/1973 and for perpetual injunction
interalia contending that defendant No. 1 Niranjan was the
exclusive owner of the suit house. By an agreement dated
12/08/1973 (Exh. 56), defendant No. 1 agreed to sell his house
to Limbabai, the original Plaintiff (since deceased), for total
consideration of ` 1500/ (Rupees One Thousand Five Hundred
only ). Defendant No. 1 accepted ` 1000/ (Rupees One
Thousand only ) towards earnest money. Defendant No. 1 also
executed a receipt at Exh. 57 and put plaintiff Limbabai in
possession of the suit house. It is further contended that the
plaintiff had applied to defendant No. 1 to specifically perform
his part of contract, but defendant No. 1 had not done so. The
plaintiff further asserted that he was and is still ready and willing
to perform his part of contract. On 16/07/1977, defendant No.
2 purchased the suit house despite having notice that defendant
No. 1 had already agreed to sell suit house to the plaintiff and
handed over possession. The cause of action accrued to plaintiff
on 16/07/1977. The plaintiff, therefore, instituted Suit for
specific performance of agreement of the suit house and for
perpetual injunction restraining defendants No. 1 and 2 from
causing any interference or obstruction in the peaceful possession
of the plaintiff's possession over the suit house.
4.
Defendant No. 2 resisted the Suit by filing Written
Statement at Exh. 39 and denied all the adverse allegations
against him. It was contended that the document dated
12/08/1973 is a false and forged document and the same is not
admitted by him. It was further denied that the plaintiff had
purchased the suit property from defendant No. 1 and also taken
possession thereof. Defendant No. 2 did not admit execution of
the agreement and receipt. It was contended that defendant No.
2 had purchased the suit property on 16/07/1977 by executing
registered sale deed. Defendant No. 1 did not file Written
Statement.
During the pendency of the Suit, defendant No. 1
5.
expired. He was issueless and he died leaving behind Kamlakar,
as he was the only legal representative. He was brought on
record by the plaintiff. The Suit proceeded only against
defendant No. 2 as the contesting party.
6.
On the basis of the pleadings of the parties, the
learned trial Judge framed necessary Issues. The parties led oral
as well as documentary evidence in support of their case. After
considering the evidence on record, the learned trial Judge held
that plaintiff proved that defendant No. 1 agreed to sell suit house
to the plaintiff by agreement of sale dated 12/08/1973. The
plaintiff also established that defendant No. 1 executed agreement
of sale in respect of the suit premises on 12/08/1973. It was also
held that defendant No. 1 had received earnest amount amount of
` 1000/ (Rupees One Thousand only ) from the plaintiff and
accordingly executed its receipt. The learned trial Judge held
that the plaintiff proved her possession over the suit house on the
basis of the agreement of sale. The learned trial Judge also held
that the plaintiff was and is ready and willing to perform her part
of contract. The learned trial Judge further held that the
defendant No. 2 is not a bonafide purchaser for value without
notice. Defendant No. 2 had purchased the suit house from
defendant No. 1 though he was aware of the transaction between
plaintiff and defendant No. 1 and that in pursuance thereof,
plaintiff was put in possession of the suit house. The learned trial
Judge further declared that the sale deed dated 16/07/1977 is
not binding on the plaintiff.
Aggrieved by that decision, defendant No. 2 preferred
Appeal before the District Court. The The learned District Judge
dismissed the appeal on 11/02/1992. It is against these
decisions, defendant No. 2 has preferred this Appeal.
7.
8.
The Appeal was admitted on 30/07/1992 as grounds
No. (III) (IX) and (XII) raise substantial questions of law.
Grounds No. (III) (IX) and (XII) read as under :
agreement of sale at Exhibit 56 dated 12 th
August, 1976 and arrived at a wrong
“ (III) The learned Judge misconstrued the
conclusion.
(IX) The learned Judge failed to consider the
fact that Section 16 of the Specific Relief Act
bars the relief of specific performance of a
contract who fails to 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
and in view of this provision as the plaintiff
has failed to prove that as per the agreement
she approached defendant No. 2 with amount
of consideration remaining and asked the
defendant No. 2 to execute the sale deed and
in absence of such readiness, the Suit can not
be decreed in favour of the plaintiff.
(XII) The learned Judge failed to consider
the fact that under Article 54 of the
Limitation Act, Suit of specific performance is
to be filed within three years from the date of
refusal to perform the contract and as such
suit of the plaintiff is failed beyond the period
of limitation.
9.
In support of this Appeal, Ms. Kulkarni submitted that
the Courts below have not properly construed agreement of sale
dated 12/08/1973 at Exh. 56, thereby arrived at erroneous
conclusion. She submitted that though no date is fixed for
performance of contract, nonetheless, it can not be said that there
was indefinite period during which plaintiff could institute Suit
for specific performance. Though time is not the essence of
contract, the agreement imposed duty on the plaintiff to call upon
the defendant No. 1 to execute the sale deed. She invited my
attention to the relevant recitals of the agreement in that regard.
The agreement recited that the total consideration for selling the
suit property is ` 15,00/ (Rupees One Thousand Five Hundred
only ) and that the defendant No. 1 received ` 1,000/ (Rupees
One Thousand only ) towards earnest amount. The remaining
amount of ` 500/ (Rupees Five Hundred only ) is to be paid at
the time of execution of the sale deed. The plaintiff was to
arrange remaining amount of ` 500/ (Rupees Five Hundred
only ) and was to call upon the defendant No. 1 for executing
sale deed in his favour. Ms. Kulkarni submitted that in paragraph
5 of the plaint, it is merely asserted that he had applied to the
defendant to specifically perform the agreement on his part, but
the defendant No. 1 has not done so. However, no details are
furnished in paragraph 5 as regards the date and time when he
called upon the defendant No. 1 to perform his part of contract.
That apart, the plaintiff did not issue any notice calling upon the
defendant No. 1 to execute the sale deed and straight way
instituted Suit for specific performance of contract. She
submitted that since the plaintiff did not issue any notice calling
upon defendant No. 1 to execute the sale deed before instituting
10.
performance of contract.
the Suit, the plaintiff can not maintain the Suit for specific
Ms. Kulkarni further submitted that the plaintiff was
and is not ready and willing to perform his part of contract.
Paragraph 5 of the plaint though confirms form No. 47 prescribed
under C.P.C., no details are given therein. She further submitted
that no cause of action was accrued to the plaintiff for instituting
the Suit. In that regard, she invited my attention to the
assertions made in paragraph 8 of the plaint. She further
submitted that the plaintiff has neither pleaded nor proved his
continuous readyness and willingness and, therefore, the Courts
below committed error in decreeing the Suit. She submitted that
after the agreement of sale dated 12/08/1973, plaintiff did not do
any overt act and kept silence till institution of the Suit. In other
words, plaintiff had abandoned/waived his right to claim specific
performance of contract. This is more so when defendant No. 1
had sold the suit property in favour of defendant No. 2 on
16/07/1977. This is also not a fit case for exercising discretion in
favour of the plaintiff while granting specific performance. In
that regard, she relied upon Section 20 of the Specific Relief Act,
1963. She also invited my attention to the evidence of Kamlakar
at Exh. 52 and submitted that perusal of his testimony also shows
that plaintiff did not establish readyness and willingness. Though
in paragraph 5 of the plaint, it is contended that plaintiff had
applied to defendant No. 1 for specific performance of contract,
no such application is produced on record. What is produced on
record are the applications dated 21/09/1978 (Exh. 60) and
25/04/1979 (Exh. 61). These applications are made by the
original plaintiff to the Chief Officer, Municipal Council, Ausa. In
other words, no application as contemplated by agreement of sale
dated 12/08/1973 was ever made by the plaintiff.
11.
Ms. Kulkarni further submitted that even though
defendant No. 2 did not set up plea of limitation in Written
Statement, having regard to Section 3 of the Limitation Act, the
Court is obliged to dismiss the Suit even if limitation has not been
set up as a defence.
Ms. Kulkarni invited my attention to the findings
12.
recorded by the Courts below and in particular paragraph 7 of the
trial Court's Judgment. The learned trial Court observed that
plaintiff asserted in the plaint that he was ready and willing to
perform his part of contract, but it was defendant No. 1 who
refused. She submitted that the said finding is contrary to the
evidence on record and is not supported by any evidence. On the
other hand, the plaintiff did not produce any application to
substantiate his contentions in paragraph 5 that he had applied to
defendant No. 1 for performing his part of contract. She further
submitted that the learned District Judge while formulating points
for determination, did not frame point as regards readyness and
willingness of the plaintiff.
13.
In support of her submissions, she relied upon
following decisions :
( i)
Ram Awadh (dead) by L.Rs. and
others Vs. Achhaibar Dubey and another, AIR
2000 Supreme Court 860 to contend that
where the plaintiff who fails to aver and to
prove readiness and willingness to perform his
part of agreement, relief of specific
performance may not be granted.
(ii)
Motilal Jain Vs. Smt. Ramdasi
Devi and others, AIR 2000 Supreme Court
2408 (1) to contend that delay in filing the
Suit for specific performance is relevant factor.
The aspects of delay are relevant in case of
specific performance of contract for sale of
immovable property : (i) Delay running
beyond the period prescribed under the
Limitation Act : (ii) Delay in cases where
though the suits are within the period of
limitation, yet (a) due to delay the third
parties have acquired rights in the subject
matter of suit; (b) in the facts and
circumstances of the case, delay may give rise
to plea of waiver or otherwise it will be
inequitable to grant a discretionary relief.
(iii)
Pushparani S.Sundaram and
others Vs. Pauline Manomani James
(Deceased) and others, 2001 AIR SCW 2347
to contend that since no notice was issued by
the plaintiff to defendant No. 1 before
instituting the Suit, it ought to be held that the
plaintiff did not establish his readyness and
willingness. Mere plea about readyness and
willingness without proof thereof is not
sufficient for granting relief of specific
performance.
Lastly, she submitted that the Suit is even otherwise
14.
barred by limitation under Article 54 of the Limitation Act, 1963,
as the agreement of sale was executed on 12/08/1973 and the
Suit is instituted on 05/02/1980. For all these reasons, she
submitted that the impugned orders are liable to be quashed and
set aside, thereby dismissing the Suit instituted by the plaintiff for
On the other hand, Mr. M.L.Dharashive supported the
15.
specific performance of contract.
impugned orders. He submitted that P.W. 1 Kamlakar deposed
that original plaintiff Limbabai was ready and willing to perform
her part of contract. Even P.W. 1, who was brought on record
after the death of original plaintiff, deposed that he was and is
ready and willing to perform his part of contract, viz. payment of
balance consideration of ` 500/ (Rupees Five Hundred only ).
In other words, both Limbabai and Kamlakar were and are ready
and willing to perform their part of contract. He further
submitted that the courts below after considering the evidence on
record have concurrently decreed the suit by holding that plaintiff
was and is ready and willing to perform his part of contract.
Plaintiff has pleaded and proved his readiness and willingness.
He submitted that defendant No. 2 is not a bonafide purchaser
for value without notice. Defendant No. 2 was aware that in
pursuance of agreement of sale, original plaintiff was put in
possession. Despite that, defendant No. 2 purchased the suit
property from defendant No. 1. He submitted that the courts
below after appreciating the evidence on record, have
concurrently held that the defendant No. 2 is not a bonafide
purchaser. The relief of specific performance being an equitable
relief, the courts below have properly exercised discretion in
favour of the plaintiff while granting the relief. In view of the
conduct of the defendant No. 2, no case is made out for invoking
powers of this Court u/s 100 of C.P.C.
16.
I have considered rival submissions of the learned
counsel for the parties. I have also perused the material on
record as also original record.
17.
As noted earlier, the Appeal was admitted on grounds
No. (iii), (ix) and (xii) as they raise substantial questions of law.
Ms. Kulkarni submitted that the courts below did not construe the
agreement of sale dated 12/08/1973 properly and arrived at
wrong conclusion. It is not possible to accept this submission.
Perusal of the recitals of the agreement shows that no time is
fixed for performance of contract. It however does not mean that
the agreement stipulated indefinite period for performance of
contract. Section 46 of the Indian Contract Act, 1872 lays down
that where, by the contract, a promiser is to perform his promise
without application by the promisee and no time for performance
is specified, the engagement must be performed within a
reasonable time. Explanation thereto lays down that the
question “ what is a reasonable time ”, is, in each particular case,
a question of fact. The question, therefore, is whether in the facts
and circumstances of the present case, it can be said that the
plaintiff demanded specific performance within a reasonable time
or not.
18.
In the case of Chand Rani (Smt) (dead) by L.Rs.
Vs. Kamal Rani (Smt) (dead) by L.Rs., (1993) 1 Supreme
Court Cases 519, the Constitution Bench held in paragraph 19 as
under,
“
It is a wellaccepted principle that in
the case of sale of immovable property, time
is never regarded as the essence of the
contract. In fact, there is a presumption
against time being the essence of the
contract. This principle is not in any way
different from that obtainable in England.
rights of the parties in the case of specific
performance of contract to sell real estate,
Under the law of equity which governs the
law looks not at the letter but at the
substance of the agreement. It has to be
ascertained whether under the terms of the
contract the parties named a specific time
within which completion was to take place,
really and in substance it was intended that
it should be completed within a reasonable
time. An intention to make time the essence
of the contract must be expressed in
unequivocal language ”.
The Apex Court thereafter considered earlier
19.
decisions, as also Section 55 of the Contract Act. After
considering the Judgments, it was observed in paragraph 25 thus,
“
From an analysis of the above case
law, it is clear that in the case of sale of
immovable property, there is no
presumption as to time being the essence of
the contract. Even if it is not of the essence
of the contract, the Court may infer that it is
to be performed in a reasonable time if the
conditions are evidence :
1.
From the express terms of the
contract ;
from the nature of the property ; and
3. from the surrounding circumstances,
contract ” .
20.
for example : the object of making the
2.
In the present case, admittedly, the agreement does
not stipulate any specific period. The parties to the agreement
did not issue any notice to make the time as an essence of
contract. Having regard to the settled position in law that in a
suit for specific performance, generally time is not essence of
contract, the courts below after appreciating the evidence on
record, have concurrently held that plaintiff has made out a case
for grant of specific performance. Section 3 of the Limitation Act
undoubtedly lays down that even though limitation has not been
set up, if the suit is instituted, after the prescribed period of
limitation, the court shall dismiss the suit. In the first place,
there is no refusal on the part of the defendant No. 1 to perform
his part of contract by issuing notice as contemplated under
Article 54 of the Limitation Act. No material is produced on
record to show that defendant No. 1 refused to perform his part of
contract. Secondly, no period of limitation is prescribed in the
agreement of sale. Thirdly and more importantly, limitation, in
the facts and circumstances of the case, is not a pure question of
law but is a mixed question of law and fact. Admittedly,
defendant No. 2 did not take up a plea that suit is barred by
limitation. As noted earlier, explanation to Section 46 lays down
that the question what is a reasonable time is a question of fact.
The Courts below have concurrently decreed the suit.
Ms. Kulkarni relied upon decision of the Apex Court
21.
in the case of Motilal Jain (supra). In the case of Motilal (supra),
the Apex Court has held that aspects of delay are relevant in the
case of specific performance of contract for sale of immovable
property, namely (i) Delay running beyond the period prescribed
under the Limitation Act; (ii) Delay in cases where though the
suits are within the period of limitation, yet (a) due to delay the
third parties have acquired rights in the subject matter of suit; (b)
in the facts and circumstances of the case, delay may give rise to
plea of waiver or otherwise it will be inequitable to grant a
discretionary relief. In that case, plaintiff had entered into
agreement for consideration of ` 25,000/ (Rupees Twenty Five
Thousand only ), out of which he had paid ` 17,000/ (Rupees
Seventeen Thousand only ) at the time of execution of
agreement of sale. The balance of ` 8,000/ (Rupees Eight
Thousand only ) was to be paid within five months at the time of
execution of registered sale deed in favour of the plaintiff. The
plaintiff sent notice on 15/03/1978 and thereafter on
04/04/1978 and finally on 26/11/1978. The plaintiff thereafter
instituted Suit in the year 1979. The learned trial Judge decreed
the Suit. The High Court confirmed the finding of the trial court
that defendant executed agreement of sale. High Court,
however, noted that the suit was filed after two years of the
accrual of the cause of action and and after about one year of last
notice issued on 26/11/1978 and from the averment in the plaint,
the readiness and willingness could not be inferred. It was
further held that there was no evidence to prove the readiness
and willingness. The High Court accordingly set aside the
Judgment of the trial Court with regard to relief of specific
performance, but granted decree for compensation. The Apex
Court observed in paragraph 6 that the last notice was issued on
26/11/1978 and from that date, the Suit was filed only after 9
months and not after more than one year. Therefore, on the facts
the ground of delay can not be invoked to deny the relief to the
plaintiff. As noted earlier, the courts below have held that
plaintiff has made out case for grant of specific relief. I have also
held that suit can not be said to be barred by limitation. In view
thereof, the reliance placed on Motilal Jain's case (supra) does not
advance the case of the plaintiff.
Ms. Kulkarni submitted that there is discrepancy as
22.
regards mentioning the number of the property in the agreement
of sale and in the plaint. The courts below did not find any
discrepancy as regards number in mentioning suit property in the
agreement of sale and the plaint. I do not see any good and valid
reason for taking a different view.
23.
The submission advanced by Ms. Kulkarni that the
courts below misconstrued the agreement of sale dated
12/08/1973 at Exh. 56 and arrived at wrong conclusion is
unacceptable. For the reasons already indicated, I do not see that
the courts below have committed any error in that regard.
24.
Ms. Kulkarni submitted that the courts below have
committed any error in granting relief of specific performance
when the plaintiff had neither pleaded nor proved his readiness
and willingness. In paragraph 5, plaintiff had made general
averments in conformity with form No. 47 of C.P.C.. However, no
details are given. In fact, plaintiff never made any application to
defendant No. 1 calling upon him to execute the sale deed. The
applications at Exhs. 60 and 61 were made to the Municipal
Council and not to the defendant No. 1. Thus, since the plaintiff
did not make any application to defendant No. 1 or did not issue
any notice to defendant No. 1 before instituting the Suit, the
courts also ought to have dismissed the Suit on this ground alone.
Perusal of paragraph 5 of the plaint with form No.
25.
I do not find any merit in this submission.
47 of C.P.C. shows that plaintiff, in tune with form No. 47, has
made assertions in paragraph 5. The submission that no details
are given by the plaintiff in paragraph 5 is also not acceptable as
it is a matter of evidence. The courts below after appreciating
the evidence of P.W. 1 Kamlakar, have recorded finding that
Limbabai as also P.W. 1 both were and are ready and willing to
perform their part of contract. It is also material to note that
total consideration was fixed as ` 1500/ (Rupees One Thousand
Five Hundred only ), out of that, plaintiff had paid ` 1000/
(Rupees One Thousand only ) towards earnest amount and the
remaining amount was ` 500/ (Rupees Five Hundred only ) to
be paid at the time of execution of the sale deed.
26.
Ms. Kulkarni further submitted that no cause of
action is pleaded in the plaint. Perusal of paragraphs 7 and 8 of
the plaint clearly shows that plaintiff has pleaded necessary facts
27.
showing the accrual of cause of action.
Ms. Kulkarni further submitted that, in any case,
after execution of agreement of sale on 12/08/1973, no overt act
was done by the plaintiff. The silence of the plaintiff amounts to
waiver of his claim towards specific performance. As I have
already indicated that Suit is neither barred by law of limitation
nor it can be said that it was filed after expiry of reasonable time,
I do not find any merit in the submission of Ms. Kulkarni. This is
more so when in pursuance of the agreement of sale, the plaintiff
was already put in possession of the suit property.
28.
Ms. Kulkarni relied upon the decision referred in the
case of Ram Awadh (supra). The Apex Court observed in
paragraph 6 that the obligation imposed by Section 16 is upon the
Court not to grant specific performance to a plaintiff who has not
met the requirements of Clauses (a), (b) and ( c) thereof. A
Court may not, therefore, grant to a plaintiff who has failed to
aver and to prove that he has performed or has always been ready
and willing to perform his part of the agreement, the specific
performance whereof he seeks. In the present case, I have
already held that the plaintiff has pleaded and proved his
continuous readiness and willingness. In view thereof the
decision in the case of Ram Awadh (supra) does not advance the
case of defendant No. 1.
Ms. Kulkarni submitted that plaintiff did not make
29.
any application to the defendant No. 1. She also did not issue any
notice to the defendant No. 1 calling upon him to perform his part
of contract. The plaintiff is, therefore, not ready and willing to
perform his part of contract. She relied upon the decision of
Pushparani (supra). In that case, it was observed that except for
a mere plea about readiness and willingness, there was no other
plaintiff has not only pleaded but also proved his readiness and
willingness. The plaintiff instituted the Suit that itself constitutes
the notice to the defendant No. 1.
evidence on record to prove the same. In the present case,
30.
That finally takes me to the question whether
defendant No. 2 can be said to be the bonafide purchaser. The
courts below have held that in pursuance of the agreement of
sale, original plaintiff was put in possession of the suit property.
Defendant No. 2 was aware of this fact and despite that he
purchased the suit house. The Courts below, therefore, held that
defendant No. 2 can not be said to be a bonafide purchaser for
value without notice. The said finding is purely finding of fact
based upon appreciation of evidence on record. I, therefore, do
not find that the courts below committed any error in decreeing
In the result, Appeal fails and the same is dismissed.
31.
the Suit.
It has to be held that the suit is not barred by limitation as there
was no refusal on the part of the defendant No. 1 to perform his
part of contract. The suit instituted therefore is not barred by
limitation. The substantial questions of law as framed are
answered accordingly.
32.
In view of dismissal of the Appeal, C.A. Nos. 2234 of
1992 and 2235 of 1992 do not survive and the same are also
disposed of.
33.
At this stage, Ms. Kulkarnni states that interim relief,
that was operating pending the Appeal, may be continued for a
period of eight weeks. She states that by the interim order,
decree for execution of the sale deed was stayed by this Court. In
view thereof, notwithstanding the dismissal of the Appeal, the sale
deed shall not be executed for a period of eight weeks from today.
Order accordingly.
[R.G.KETKAR, J.]
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