Smt. Shakuntla Narang and Others vs Smt. Usha Raghuraman and Others

V.K. Shali, J.—This is a Regular Second Appeal filed by the Appellant against the judgment dated 16th May, 2005 passed by Sh.A.S. Yadav, Additional District Judge, Delhi by virtue of which the learned Additional District Judge, Delhi set aside the judgment/order dated 21st February, 2004 of the learned Civil Judge dismissing the suit for specific performance/injunction etc. and remanding the matter back to the Trial Court for the purpose of trial.

Briefly stated the facts leading to the filing of the present Regular Second Appeal are that one Sh.K.C. Narang (since deceased) Defendant No. 4 in the suit and now being represented by his legal heirs Smt. Shakuntla Narang, Miss. Sangeeta Narang, Mrs. Indu Mehta, Mrs. Sudha Magoo and Sh. Subhash Narang who are all Appellants are the owner of property bearing No. F-91, Naraina Vihar, New Delhi-28.Sh. K.C. Narang, the predecessor in interest of the Appellants is purported to have entered into an agreement to sell dated 6th January, 1988 with Respondent No. 1 herein Smt.Usha Raghuraman (who was the plaintiff in the suit) to sell their entire terrace of the Ground floor with right to construct the upper floors for sale consideration of Rs. 1,10,000/-.It was alleged that the entire sale consideration had been paid by Smt.Usha Raghuraman to the predecessor in interest of the Appellant at the time of signing of the agreement and the latter in execution of its part performance of the agreement had not only executed agreement to sell dated 6th January, 1988 but also handed over the physical possession of the terrace of the Ground Floor to Smt.Usha Raghuraman-Respondent No. 1.The Appellants herein got the plans sanctioned for the purpose of construction by Respondent No. 1.The Respondent No. 1 also raised construction of the First Floor in the year 1988 but could not construct the second floor on account of paucity of funds.Thereafter, she requested the Appellants herein to take necessary permission from the Income Tax Authorities and DDA in terms of the agreement and to execute the documents so as to perfect her title.K.C. Narang did not do this, Smt.Usha Raghuraman Respondent No. 1 was forced to issue a notice on 9th July, 1993 calling upon K.C. Narang Defendant No. 4 in the suit, to apply for sale permission and perfect her title.Since no heed was paid, Smt.Usha Raghuraman filed a suit for Specific Performance, Injunction and Declaration to the effect that she is the owner of property of the first floor and above in respect of the suit property.

In the said suit, Respondent No. 1 Smt.Usha Raghuraman impleaded DDA, UOI and Government of NCT who are Respondent Nos. 2, 3 and 4 respectively in the present appeal, as parties.On notice being issued by the learned Civil Judge to Respondent Nos. 2 to 4 and the Appellants, some of them chose to file their written statement.DDA/Respondent No. 2 choose to file the written statement denying knowledge about the agreement to sell to have been executed by K.C. Narang although it was stated by them that the suit property was a leasehold property granted by the DDA to Sh.K.C. Narang on 20th April, 1968.So far as Union of India and Government of NCT of Delhi are concerned, who are the Respondent Nos. 2 and 4 herein, they did not file their written statement.

Sh.K.C. Narang, the predecessor in interest of the Appellants herein also filed their written statement and disputed the factum of agreement to sell dated 6th January, 1988 having been executed by him in favour of Respondent No. 1 Smt. Usha Raghuraman.He took the plea that as a matter of fact, Respondent No. 1 Smt.Usha Raghuraman had approached for taking the accommodation of the Appellants on rent and on her request, she was inducted as tenant in respect of the first floor of the property on a monthly rent of Rs. 2,000/- per month with the tenancy commencing from 1st June, 1989 but the factum of having received a sum of Rs. 1,10,000/- was admitted by the predecessor in interest of the Appellants but it was stated that the said amount was received only by way of rent and the same was adjusted towards payment of rent upto 31st December, 1993.Thus on merits, the Appellants contested the suit of the plaintiff for Specific Performance and the other reliefs claimed by Respondent No. 1.It may be pertinent here to mention that no plea of limitation whatsoever was taken by the Appellants in the suit.

The learned Civil Judge dismissed the suit vide order dated 21st February, 2004 by holding that the suit is barred by limitation.In this regard, the learned Civil Judge referred to the averments in paragraph 29 of the suit made by Respondent No. 1 Smt.Usha Raghuraman wherein she had stated that the cause of action for filing the suit had arisen on 6th January, 1988 when the agreement to sell was executed in her favour by the Appellants.The learned Civil Judge taking the plea that since Respondent No. 1 herself is saying that the cause of action has accrued to her on 6th January, 1989 and the period of limitation for filing a suit for specific performance is only three years the suit was barred by limitation as the same was filed on 22nd December, 1993.So far as the question of reckoning the period of limitation from the date of notice dated 9th July, 1993 is concerned, it was stated by the learned Civil Judge that the said notice is of no help to Respondent No. 1 Smt.Usha Raghuraman to enlarge her period of limitation on account of the fact that in the suit itself, she does not state anywhere on what date where and when she had approached the Appellants or their predecessor in interest Shri K.C. Narang for the purpose of execution of the sale deed or for the purpose of obtaining the permission from Income Tax authorities or the DDA as was envisaged under the agreement.Thus, in the absence of any such averment, the learned Civil Judge was of the view that the period of limitation is to be reckoned with effect from 6th January, 1988 and not with effect from 9th July, 1993 so as to enable the Respondent No. 1 to file the suit on 22nd December, 1993.Accordingly, the learned Civil Judge dismissed the suit of the Respondent No. 1 as being barred by limitation.

Respondent No. 1 feeling aggrieved by virtue of the aforesaid judgment of the learned Civil Judge dated 21st February, 2004 had preferred a Regular First Appeal to the learned ''District Judge, Delhi'' which came to be heard and decided by Sh.A.S. Yadav, Additional District Judge.The learned Additional District Judge set aside the judgment of the learned Civil Judge holding that as the time was not the essence of the agreement between the Appellants and Respondent No. 1, therefore, the suit of Respondent No. 1 could not be said to be barred by limitation.For the purpose of this, the learned Additional District Judge referred to Article 54 of Schedule 1 of the Limitation Act, 1963 which lays down that the suit for specific performance must be filed within 3 years from the date fixed for the performance of the contract, or, if no such date is fixed, within three years when the plaintiff has noticed that the performance is refused.The learned ADJ held that according to the agreement between the parties the time was not the essence of the agreement and,therefore, the period of limitation is to commence only after the notice had been given to the Appellants.

The learned ADJ, Delhi set aside the judgment of the learned Civil Judge and remanded the matter back to the Trial Court to be decided on merits.

I have heard the learned Counsel for the parties and also gone through the record.It is contended by the learned Counsel for the Appellant that the following questions of law are arising in the present Regular Second Appeal:

A. Whether suit for specific performance will be maintainable beyond period of 3 years upon performance of the agreement itself?

B. Whether is it necessary that there must be specific date of the performance?

C. Whether is it sufficient that date for specific performance is ascertainable from agreement or not?

D. Whether on performance of all obligations on the part of beneficiary, is it still open for beneficiary to file a suit for specific performance beyond period of 3 years?

E. Whether upon performance of obligations by the beneficiary in pursuance to the agreement to sell, for filing a specific performance suit, limitation would still lie under later part of Article 54 of the Limitation Act, 1963 or the earlier part of it?

F. Whether a party having performed all his obligation can sleep over the matter for a period of 5 years and can still take protection of Article 54 of the Limitation Act, 1963?

G. Whether other reliefs of declaration and injunction can be clubbed and granted in suit for specific performance?

H. Whether Court can set up independent plea/contention for a party?

I. Whether a suit for projecting possession of the party being an offensive remedy is available under provisions of Section 53A of Transfer of Property Act?

J. Whether Section 53A is applicable in the present case in view of the amendment made by Transfer of Property (Amendment) Act, 2002?

K. Whether a suit by a Transferee is maintainable for injunction to protect his possession despite the fact suit for specific performance is barred by limitation?

L. Whether suit for specific performance was in time and suit as such maintainable as filed by the plaintiff.

It was further contended by the learned senior counsel Mr.Rawal that the present appeal raised questions of law as to what is meant for the word "performance" as under the terms and conditions of the agreement.According to the learned Counsel for the Appellants this constituted a substantial question of law which needs to be interpreted in the instant case.It was also urged that in the instant case Respondent No. 1 on her own saying had made the entire payment of the sale consideration to the Appellants or his predecessor-in-interest and she has also received the possession of the property also, therefore, nothing remained to be performed on the part of the Appellants or his predecessor-in-interest.This entire transaction was done on 6th January, 1988 and, therefore, the period of limitation is to be reckoned with effect from 6th January, 1988.If done so, the present suit for specific performance was prima facie barred by limitation.

It was further contended by the learned Counsel for the Appellant that even assuming though not admitting that the Appellant was in possession of the said premises in the capacity of the owner.By virtue of Section 53A of the Transfer of Property Act she could at best defend her possession against the Appellants in pursuance to the part performance.It was contended by the learned Counsel for the Appellant that Section 53A of the Transfer of Property Act can be used as a shield and not as a word ''sword'' and, therefore, by taking help of this shield the present suit for specific performance could not be maintained which had become time barred though she could defend her possession.The learned Counsel for the Appellant had also relied upon the judgment in 2002 (II) AD (SC) 22 titled Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba.

As against this, the learned Counsel for the Respondent No. 1 had contended that as the Appellants and his predecessor-in-interest had not perfected their title, the Respondent No. 1 was constrained to send a notice to the Appellants on 9th July 1993.In this notice, the Appellants were specifically directed that they must obtain the necessary permission of the DDA as well as the Income Tax Authority to perfect the title of Respondent No. 1 and since they had failed to respond to the said notice the cause of action accrued to the Respondent No. 1 to file the present suit for specific performance only on account of having remain silent to the said notice.Reliance in this regard was also placed on Article 54 of the Limitation Act, 1963 to the effect that according to the said Act the period within which the specific performance suit is to be filed, the date fixed for the performance of the contract or if no such date is fixed when the plaintiff has an intimation that the performance is refused.Since the Appellant or his predecessor-in-interest had refused to respond to the notice dated 9th July, 1993 the period of limitation at best is to be reckoned with effect from 9th July, 1993 and hence the present suit of the plaintiff is well within time.

I have gone through the judgments of the learned Civil Judge as well as that of learned ADJ, Delhi.I have also gone through the documents relied upon by Respondent No. 1 in support of his case, apart from the pleadings of the parties.Article 54 of the Limitation Act, 1963 provides as under:

For specific performance of a contract Three years.

The date fixed for the performance or if on such date is fixed when the plaintiff has notice that performance is refused.

A perusal of the said Article clearly shows that the period of limitation for specific performance is three years and this period is to be reckoned from the date fixed for the performance of the contract or if no such date is fixed when the plaintiff as an intimation that the performance is refused.

A perusal of the agreement receipt and other connected documents dated 6th January 1998 clearly shows that there was no specific time fixed under the terms and conditions of the contract between the parties for the performance of the agreement.The learned ADJ, Delhi while dealing with this question as to whether the time was essence of the contract or not has dealt with the said issue as under:.

In order to find out whether the time was essence of the contract or not.It is appropriate to look at the agreement to sell.

Last 5 lines of page 3 of the agreement are relevant, which are reproduced as under:"The first party doth hereby agree to sell, convey and transfer the entire terrace of the ground floor with the right to construct the same as per bye-law, alongwith proportionate lease-hold rights etc. etc. unto the second party absolute and After the word "and" para 2 starts on page 4 thereafter para 3.Both the are not relevant for deciding the controversy.Para 4 & 5 which are relevant are reproduced as under:

That the first party shall obtain permission to sell the said portion from the DDA or any other

concerned authority in favour of the second party or the nominee/s.However, the unearned increase is to be paid at the time of sale permission shall be paid by the second party.

That the first party shall obtain the Income Tax Clearance Certificate in form 34-A under the provisions of Section 230-A(1) of the Income Tax Act, 1961, to sell the said portion in favour of the second party or the nominee/s.

So under the agreement no date has been given for the performance of the agreement.The notice was given for the first time on 9.7.1993 and since the sale deed was not executed and the suit was filed in Dec. 1993.

I find myself in full agreement with the observations passed by the learned ADJ, Delhi that under the agreement no date was fixed for the performance of the agreement.That being so the case of the Appellant is governed by the latter portion of Article 54 of the Limitation Act, 1963 for the purpose of finding out as to whether the suit for specific performance is within limitation.This period is to be reckoned when the plaintiff has noticed that the performance is refused.The Respondent No. 1 as reasonable person waited for considerable length of time for perfecting her title and since this was not done despite the entire sale consideration having been received, the Respondent No. 1 was constrained to have a notice and, therefore, file a suit for specific performance in December, 1993.

I do not find myself in agreement with the observations passed by the learned Civil Judge that as the plaintiff has not given any specific date, time or place when she was refused to perfect her title by the Appellant or his predecessor-in-interest, therefore, the suit by the plaintiff is barred by the limitation by assuming that the period of limitation is to be reckoned from the date of agreement that is 6th January, 1988.The Respondent No. 1 as a reasonable person before embarking on litigation which was forced on her had given a notice on 19th July, 1993 to the Appellants or his predecessor-in-interest to obtained requisite permission under the agreement so that she could perfect her title.No response was given to this notice dated 9th July, 1993, therefore, it was reasonable for the Respondent No. 1 to assume that the Appellants or his predecessor-in-interest are not inclined to perfect their title and hence she was left with no other alternative except to file the present suit for the specific performance, therefore, the period of limitation is to be reckoned in the instant case at best from 9th July, 1993 that is date on which the notice purported to have been issued to the Appellant.If that be so the suit of the plaintiff was within the period of limitation and the same has been rightly held to be so by the learned ADJ, Delhi.The learned ADJ, Delhi was perfectly right in setting aside the judgment of the learned Civil Judge dated 21st February, 2004 and remanding the matter back to the learned Civil Judge for the purpose of trial.The submission of the learned Counsel for the Appellant that the present appeal raises substantial questions of law with regard to the interpretation of the word ''performance'' is untenable nor does the questions formulated by the Appellant in the appeal which are reproduced in the appeal and hereinabove.None of the questions raises any substantial question of law.Under Section 100 of the CPC the Second Appeal is not admissible as a matter of right.The party wanting the Second Appeal to be admitted must be able to show that his appeal is involving a substantial question of law.Since this has not been done, therefore, the present appeal of the Appellant is dismissed.