AI Structured Summary
Not yet generated for this judgment
Judgment
S. Tamilvanan, J.—This appeal is directed against the Judgment and Decree, dated 25.10.1994 made in O.S. No. 347 of 1992 on the file
of the Principal Subordinate Judge, Erode. The appellants herein were defendants 1, 2 and 7 in the suit before the trial court.
The suit was filed by the respondent / plaintiff, seeking a decree against the appellants and others, directing them to pay specific amounts with
interest and costs, accordingly, the decree was passed by the trial court against the first appellant / D1 to pay a sum of Rs. 1,76,585/- along with
15% interest for the principal amount of Rs. 1,00,000/-. The second appellant / D2 was directed to pay a sum of Rs. 1,76,585/- along with 15%
interest for the principal amount of Rs. 1,00,000/-. The third appellant / D7 was directed to pay a sum of Rs. 88,293/- with 15% interest for the
principal amount of Rs. 50,000/- with cost. Further ,the appellants herein were directed to pay Rs. 6,000/- which was given by the respondent for
one Mumtaj Begum and one Hazra Bibi with interest and costs.
According to the respondent / plaintiff, he entered into an agreement, Ex.A.1, dated 11.03.1987 with the appellants and seven others to
purchase the property described in the plaint schedule, for a sale consideration of Rs. 7,85,000/-. On the date of agreement, Tmt.Mumtaj Begum
and Tmt.Hajaran Beevi were not present to sign the agreement, however, Rs. 2,71,000/- was received by the defendants therein as advance and
part of the sale consideration.
According to the respondent / plaintiff, the appellants and others were evading the performance of their part of the contract. Hence, he issued a
legal notice, dated 06.11.1989, marked as Ex.A.2. The appellants 1 and 2 sent a reply notice, dated 01.12.1989 marked as Ex.A.5, wherein the
appellants 1 and 2 have disputed the claim of the respondent.
Mr. K. Doraisami, learned Senior Counsel appearing for Mrs. Muthumani Doraisami, for the appellants contended that even as per the
pleadings, the trial court should have decided that the suit claim was barred by limitation, for which, he drew the attention of this Court to Section 3
of The Limitation Act, 1963. As per Section 3(1) of The Limitation Act, 1963, subject to the provisions contained in Section 4 to 24 (inclusive),
every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, though limitation has not been set up as
a defence by the other side.
According to the respondent, the agreement for sale, Ex.A.1 was entered into between the respondent, appellants and others on 11.03.1987.
The respondent has also admitted that as per Ex.A.1, agreement, time limit fixed for performance of contract was six months from the date of the
agreement and therefore, as per the agreement, it could have been performed on or before 10.09.1987. Further, there is a forfeiture clause stating
that if the respondent fail to perform his part of the contract, he will loose the advance amount paid and similarly, if the appellants and others fail to
perform their part of contract, the respondent could have the right of specific performance of the contract, through court of law and also entitled to
claim damages and costs.
The respondent herein, who was examined as P.W.1 has admitted that he had not filed any suit for specific performance of the contract, but
filed this suit only for return of the advance amount with interest.
As contended by the learned Counsel for the appellants, it is only a suit on money claim. As per Article 47, the limitation prescribed for money
claim is only three years. In case of specific performance of a contract, the limitation is three years from the date fixed for the performance of the
contract or if no such date is fixed, then the date of refusal for the performance of the contract has to be considered.
In the instant case, as per Ex.A.1, agreement for sale, time limit has been fixed as six months from the date of agreement and therefore, the time
limit for the performance of the contract would be 10.09.1987. From that date, within three years, the suit could have been filed and therefore, as
contended by the learned Counsel appearing for the appellants, for enforcement of specific performance, the suit could have been filed on or
before 10.09.1990. There is also a forfeiture clause under Ex.A.1 agreement. However, being an agreement for sale of immovable properties, on
the facts and circumstances, it cannot be held that time was the essence of the contract, but the parties cannot over rule the Limitation Act, since
the time limit stipulated under the Limitation Act is mandatory.
According to P.W.1, he paid the advance amount towards part payment of consideration on 11.03.1987. As he had filed the suit only for
recovery of the aforesaid amount, he could have filed the suit within three years from the date of agreement or at least within three years from the
time limit fixed for the performance of contract. But, it is seen that the suit was filed only 09.06.1992, after the expiry of the time limit.
In the written statement filed by the appellants, the appellants have specifically pleaded that the suit claim was barred by limitation. However,
the trial court has not framed any issue regarding question of limitation to maintain the suit. It is not in dispute that the court has to frame the issues
based on the pleadings of both the parties. As the appellants / defendants have raised the question of limitation for maintaining the suit, the trial
court should have framed a specific issue, regarding the same, but the issue regarding question of limitation has not been framed by the court
below, though the trial court has discussed the same in paragraph number 11 of the impugned Judgment.
As per Section 3 of the Limitation Act, 1963, every suit instituted, appeal preferred and application made for the prescribed period shall be
dismissed, though limitation has not been set up as a defence. In this case, the appellants as defendants have specifically raised their defence on the
ground of limitation.
P.W.2 and P.W.3 are attestors to the document Ex.A.1. They have deposed in their evidence that on 11.03.1987, the agreement for sale,
Ex.A.1 was entered into between the parties and Rs. 2,71,000/- was paid towards part of sale consideration. They have also admitted that though
there were thirteen parties to Ex.A.1, including the respondent herein, the said document was not signed by two of them, who were stated as party
number 8, Mumtaj Begum and party number 10, Hazra Bibi.
According to the respondent, the appellants had assured that they would get the signature of the said party number 8 and 10, however, could
not get their signatures as promised. This Court is of the view that Ex.A.1, agreement for sale, cannot be considered as an incomplete document,
merely because two of the parties stated therein could not sign, since it conveys the agreement and bind the parties, who were signed therein and
said to have received advance amount, therefore, as held by the court below, Ex.A.1, cannot be construed as an incomplete document, as far as
signatories to the documents are concerned.
In view of Section 3(1) of the Limitation Act, it is clear that after expiry of limitation, no suit can be instituted. In the instant case, as per the
pleadings of the respondent / plaintiff, the agreement for sale, Ex.A.1 was entered into between the parties on 11.03.1987, whereby, time limit for
performance of the contract was fixed as six months from the date of agreement.
Mr. K. Doraisami, learned Senior Counsel submitted that Article 54 of the Limitation Act is applicable for a suit for specific performance of
agreement of sale. As the respondent had filed the suit only for the refund of the advance amount, according to the learned Senior Counsel, Article
47 of the said Act is applicable and that the suit claim, in view of Article 47 of the Act is barred by limitation. In support of his contention, he relied
on the decision, P. Sivan Muthia and eight Ors. v. John Sathiavasagam reported in 1990 TLNJ 70, wherein a Division Bench of this Court, has
held that the time stipulated is three years, when there is a date fixed for the performance of a contract and if no date is fixed for the performance
of the contract, the time would be three years after the performance is refused by the other side. In this case, as per Ex.A.1, agreement for sale of
immovable property, for the performance of contract, six months time had been fixed from the date of the agreement, 11.03.1987. Therefore, the
last date fixed for performance, as stipulated in the agreement is 10.03.1990. Even for the return of the advance amount, being the money claim, as
per Article 47 of the Limitation Act, three years time limit would commence from the last date stipulated for the performance of the contract. In the
aforesaid decision, at page number 72, the Division Bench of this Court has observed as follows:
Now, there is a consensus before us that the Article of the Limitation Act 1963 that could be invoked is Article 47. The Article speaks about
recovery of money paid upon an existing consideration which afterwards fails and the time stipulated is three years from the date of the failure.
In this regard, the learned Senior Counsel drew the attention of this Court to Ex.A.1, agreement for sale, dated 11.03.1987 and also copy of
the legal notice issued by the respondent, marked as Ex.A.2 and the reply given by the appellants 1 and 2. In the reply notice, dated 01.12.1989,
the aforesaid appellants have denied passing of consideration. They have also stated that it is an incomplete agreement, since party number 8 and
10 mentioned therein have not signed in the agreement. Further, they have specifically stated that it is a time barred claim, since as per the recital in
the agreement, the time limit was fixed as six months from the date of agreement. It is seen that the respondent had not filed any suit for specific
performance of the contract for sale, based on Ex.A.1, but he has filed the suit only for return of the alleged advance amount paid to the appellants
herein. As per Ex.A.1, it is clear that the time limit for the performance of the contract was six months and therefore, the suit could have been filed
within three years from the last date fixed for performance of contract, in view of Article 47 of the Limitation Act, 1963 and accordingly, the suit
should have been filed within three years from the time limit stipulated for the performance of contract, as per the agreement.
The plaintiff has filed the reply notice, dated 01.12.1989 sent by the appellants 1 and 2 as Ex.A.5, apart from the returned covers, Exs.A.6 to
A.10, postal acknowledgment cards for service of notice as Exs.A.11 and A.12. The settlement deed, dated 05.06.1956 executed in favour of
Rafia Bibi by one Kadhar Sayub, which has been marked as Ex.A.13. It is seen that Exs.A.14 and A.15 are legal notices. Similarly, Ex.B.1 is the
settlement deed, dated 03.03.1976 executed in favour of Rafia Bibi by the first appellant and Ex.B.2 is the settlement deed, dated 03.03.1976
executed in favour of Rafia Bibi by the second appellant. The partition deed, relating to Rafia Bibi and others, dated 29.07.1977 has been marked
as Ex.B.3 and Exs.B.4 to B.19 are property tax receipts, water tax and electricity charge receipts, relating to the house.
Before the trial court, it is seen that the respondent / plaintiff was examined as P.W.1. P.W.2 and P.W.3 are the attestors to the agreement for
sale, Ex.A.1. The appellants 1 and 2 were examined as D.W.1 and D.W.2 and they disputed the agreement, Ex.A.1 and the claim made by the
plaintiff.
It is clear from the available oral and documentary evidence, as contended by the learned Counsel for the appellants, that the time limit for the
performance of contract was not extended, even as per Ex.A.1. Therefore, even if Ex.A.1, agreement for sale, dated 11.03.1987 is admitted as
true and genuine, the suit could have been filed within three years from the last date fixed for performance of the contract, as per Article 47 of the
Limitation Act, 1963. It is seen that the suit was filed only on 09.06.1992, after the expiry of the period of limitation. Therefore, in the light of the
decisions referred above, I hold that the suit filed by the respondent was not legally sustainable, in view of Article 47 of the Limitation Act, 1963
and as such, the appeal has to be allowed.
In the result, the appeal is allowed and the impugned Judgment and Decree passed by the court below is set aside. However, there is no order
as to costs.