Rajamani Ammal vs Neelambal Ammal @ Neela

Abdul Hadi, J.—The plaintiff in O.S. No. 2053 of 1988 on the file of the IV Assistant Judge, City Civil Court, Madras has preferred this

Second Appeal against the reversing judgment and decree in A.S. No. 291 of 1993 on the file of the Principal Judge, City Civil Court, Madras.

The said reversing judgment set aside the decree for specific performance granted by the trial court and dismissed the suit. The specific

performance asked for is with reference to Ex. A1 sale agreement dated 15.5.1974 executed by the defendant in favour of the plaintiff, for sale of

the suit immovable property for a sum of Rs. 11,500/- six month''s time was stipulated under Ex. A1 for the execution of the sale deed. The suit

was filed on 26.2.1988. The lower appellate Court has inter alia held that the suit is barred by limitation and that it is also hit by Section (16)c of

the Specific Relief Act.

But, Learned Counsel for the appellant submits that the lower appellate Court has erred in law in having observed thus:-

In an agreement for sale of immovable property, time is generally of the essence i.e., the stipulated time is a very essential condition to be complied

with strictly by the parties.

But, this observation of the lower appellate Court is no doubt not correct and the judgment relied on by Learned Counsel for the appellant, viz.

Indira Kaur and Ors Vs. Sheo Lal Kapoor, also observes that the law is well settled that in a transaction of sale of immovable property, time is not

of the essence of the contract.

But, as I have already pointed out, the court below has also held that the suit is barred by limitation and Section 16(c) of the Specific Relief Act

also has not been complied with by the plaintiff. Taking up the first of the abovesaid findings that the suit is barred by limitation, imposed the

question to Learned Counsel for the appellant that even though the above referred to ob salvation of the court below extracted is not for reel, how

does he attack the other above stated finding of the court below regarding limitation But, he did not give any direct answer to the question posed

by me, but only repeatedly (sic) emphasized that the Court below has approached tin case wrongly in having made the abovesaid ob salvation that

time is the essence of the contract in the case of agreement for sale of immovable property. But, even though the abovesaid observation of the

lower appellate court is not correct that by itself will not lead to the conclusion the finding of the court below that the suit is barred by limitation is

also not correct. Learned Counsel for the appellant did not make any separate argument as to how the abovesaid finding regarding limitation is not

correct. Even in the Memorandum of Grounds, I am unable to see any specific ground taken up against the above an finding on limitation.

On the abovesaid question of limitation the relevant article is Article 54 of the Limitation Act, 1963 which runs as follows-

For specific Three years The date fixed for the

performance of a performance or if no such

contract date is fixed when the plaintiff

notice that performance is

refused.

So, if a date is fixed for the performance of the contract, the period of limitation is three years from the said date. Only if no, such date is fixed, the

three year period begins to run from the date when the plaintiff has notice that the performance is refused. But, this latter clause we have no

application to the present case since the date is fixed under Ex. A1 for the performance of the contract. Under Ex. A1 the contract must be

performed within six months from 15.5.1974. In other words, the contract could be performed on or before 15.11.1974. In this connection, the

oral evidence of P. W. 1 may also be seen. P.W. 1 the husband of the plaintiff, admits in cross-examination thus:-

He also admits thus:-

P.W. 1 nowhere deposed that the said period of six months fixed, was extended by any express or implied subsequent agreement between the

parties.

Where the time for performance is fixed, limitation would begin to run as from that time and the question whether time was of the essence of the

contract is not relevant for determining whether the abovesaid column 3 to Article 54 would apply. (Vide also page 894-895 of U.N. Mitra''s Law

of Limitation, 10th Edition, and Sumerchand v. Sukumchand 1965 Jab. L.J. 82 cited thereon).

Further, it is also significance to note that the lower appellate Court also points out thus:-

Plaintiffs husband P.W. 1 Chelliah, has admitted that no notice was issued by the plaintiff to the defendant between the agreement dated 15.5.74

and the date of filing the suit in February, 1988.

No doubt, the plaintiffs case is that apart from the payment of advance of Rs. 3001/- out of the abovesaid total consideration of Rs. 11,500/-,

the plaintiff has also paid Rs. 1,000/- on 1.11.1974, Rs. 1000/- on 1.4.1976, Rs. 1,500/- on 1.5.1978, Rs. 1,500/- on 25.6.1979, Rs. 500/- on

10.5.1982 and Rs. 500/- on 26.4.1985. But the defendant''s case is that these payments are false and the alleged endorsements Exs.A2 to A6

said to show the said payments are forgeries. With reference to this aspect, the point for determination set out by the lower appellate Court is,

Whether the endorsements Exs.A2 to A6 and more particularly Exs.A5 to A6 are true and valid and whether the suit is in time. The dates of the

last two of the said endorsements are 10.5.1982 for a sum of Rs. 500/- and 26.4.1985 for another sum of Rs. 500/-. Those endorsements are

Exs.A3 and A6 respectively. The other endorsements Exs.A2 to A4 were earlier. ""With reference to these endorsements, the observations of the

lower appellate Court are as follows:-

Both these endorsements (Exs.A5 and A6) have been signed by P.W. 2 Selvam, who is none other than the nephew of P.W. 1 Chelliah. In his

evidence P.W. 2 did not say, who wrote the endorsements Ex. A5 A6. the said writer, whose name is not known, has not been examined by the

plaintiff. Likewise, the writer of all the earlier endorsements Exs. A2 to A4 has not been examined to support plaintiffs case. P.W. 6. Srinivasan,

who is running a press, deposed that he was present, when Rs. 500/- was received by the defendant from the plaintiff. But, he does not give the

date of payment and he was not attested either Ex. A5 or Ex. A6 each of which refers to payment of Rs. 500/-. The evidence of P.W. 1 to 3 fails

to prove the truth of all these endorsements.

With reference to this finding of the Court below, Learned Counsel for he appellant did not make any attempt to assail the said finding that the

abovesaid endorsement has not been proved to be true.

For all these reasons, the finding of the court below regarding limitation/question cannot be disturbed and on that aspect, I do not find any

substantial question of law arising. Then, once the suit is barred by limitation, there is no necessity to go into the other aspects. In the result, the

Second Appeal is not admitted, but dismissed. CM.P. No. 6235 of 1995 for injunction is consequently dismissed.