Chakky Rudrani vs Velayudhan Krishnan

M.M. Pareed Pillay, J.—Appellant is the Plaintiff in O.S.121 of 1981 of the Principal Sub Court, Alleppey. She filed the suit for specific performance of an oral agreement. Defendant (Respondent) denied the agreement. The trial Court on a consideration of the evidence upheld the case of the Plaintiff with regard to the oral agreement and decreed the suit. Defendant filed A.S.36 of 1986 before the District Court, Alleppey. The learned District Judge concurred with the findings of the Sub Judge with regard to the oral agreement set up by the Plaintiff in the suit. But the learned District Judge finding that the suit is barred by limitation dismissed it.

Case of the Plaintiff is that on 7.11.1972 the Defendant entered into a contract with her to sell the suit property for Rs. 7,000/- and received the amount from her on the same day agreeing to execute the sale deed as soon as he received back the document of the property after clearing off certain liability due to a bank. Plaintiffs case is that she was given possession of he property on 7.11.1972 itself and that she was always ready and willing to perform her part of the contract, but the Defendant failed to perform his part. Defendant filed written statement stating that there was no agreement to sell the property to the Plaintiff. According to the Defendant on 7.11.1972 on receipt of Rs. 7,000/- from the Plaintiff the property was given in possession to her for enjoyment of the same. Learned District Judge has agreed with the findings of the trial Court upholding the agreement of sale as alleged by the Plaintiff and that the property was given to her as part performance of the contract.

Contention of the Plaintiff is that the District Judge went wrong in holding that the suit is barred by limitation. Counsel pointed out that the averments in the plaint would really show that Plaintiff became aware of the refusal on the part of the Defendant in performing his part of the contract only on 20.6.1980 and therefore the period of limitation starts from that date and not at any time prior to that. In the plaint it is stated that the Plaintiff came to know on 20.6.1980 that the liability to the Bank was cleared and that the Defendant had received back the document.

Counsel for the Defendant pointed out that the evidence in the case disclose the fact that the Plaintiff was aware of the refusal on the part of the Defendant to perform his part of the contract much prior to the date alleged in the plaint and as the suit had been filed long after the period of limitation the District Judge''s finding cannot be assailed.

Article 54 of the Limitation Act governs the period of limitation for specific performance of the contract. The article provides for three years as the period of limitation for a suit on specific performance of the contract. Three years period of limitation runs in two parts under the Article (i) from the date fixed for the performance; or (ii) if no such date is fixed, when the Plaintiff has notice that the performance is refused in a case where date if fixed for specific performance of the contract there cannot be any ambiguity with regard to the date and so the limitation runs from that date. In a case where the agreement is silent with regard to the date on which the contract is to be performed the date of refusal known to the Plaintiff is the basis for computation of the period of limitation. In other words, promisor''s refusal and promisee''s knowledge of such refusal commence the starting point of limitation. In a case where no time was fixed as per the agreement for the performance of the contract the period of limitation starts from the date when the Plaintiff could be imputed with the notice of he refusal of the performance of the contract. The notice of the refusal of the performance of the contract can be gathered from the evidence and circumstances emerging from the case.

Plaintiff''s case is that she came to know of the Defendant''s refusal to perform his part of the contract only on 20.6.1980 when he obtained back the document from the bank and hence the suit filed on 5.6.1981 is not barred by limitation. Plaintiff had filed O.S.53 of 1975 for injunction against the Defendant with respect to the very same property. Ext.A-1 is the judgment Ext.A-1 judgment shows that the Plaintiff has asserted in the plaint in O.S.53 of 1975 that he Defendant avoided execution of the sale deed and so she (plaintiff) was compelled to present Ext.A-4 petition before the S.N.D.P. Sakha. The above averments in O.S.53 of 1975 is indicative of Plaintiffs awareness of Defendant''s attitude even before she lifted Ext.A.-4 petition before the S.N.D.P. Sakha. In the written statement filed by the Defendant in O.S.53 of 1975 he has refused the agreement. His definite stand was that he never agreed to sell the property to the Plaintiff. Denial of the agreement by the Defendant tantamounts to refusal to perform his part of the contract. Contention that the Defendant has not expressly stated in the written statement in O.S.53/1975 that he was not willing to perform his part of the contract and so it would not amount to refusal is not tenable. As the Plaintiff was aware of the denial of the agreement when the written statement in O.S.53 of 1975 was filed the limitation starts from that date. The suit filed in 1981 cannot save the bar of limitation on the mere averments in the plaint that the Plaintiff came to know of the refusal of the Defendant to perform his part of the contract only on 20.6.1980, whereas the evidence in the case would certainly indicate that the Plaintiff was really aware of the Defendant''s refusal when the written statement in O.S.53 of 1975 was filed. As the refusal to perform his part of the contract can be gathered from the evidence in the case and as the denial of the agreement in the written statement in O.S.53 of 1975 really amounts to refusal to perform his part of the contract and as the suit is notified within three years of such refusal the District Judge was justified in holding that the suit is barred by limitation.

There is no merit in the Second Appeal. The second appeal is dismissed. No costs.