Judgment :- 1. Defendants 1 and 2 in O.S. No. 193 of 1981, on the file of Principal District Munsifs Court, Kallakkurichi, are the appellants. 2. First respondent herein, as plaintiff, filed the above suit for specific performance of agreement for sale dated 15-6-1974 and marked as Ex.A-3. First respondent alleged that the appellants along with respondents 3 and 4, who are his brothers and defendants 3 and 4 in the suit, agreed to sell the property for a total consideration of Rs. 9,000/-. It is further said that on the same date, they received the entire sale consideration. The agreement provided that the defendants agreed to execute the sale deed whenever called upon by plaintiff prior to 15-6-1976, i.e. , two years time was given for performance of the contract. It is further said that in or about June 1975, defendants 3 and 4 left the village searching for their livelihood and they orally agreed that on their return they would execute the sale deed as per agreement even if it was beyond the period 15-6-1976. It is said that the appellants also agreed for the said arrangement. Defendants 3 and 4 did not return to the village and their whereabouts were also not known till 1980. When the plaintiff heard that defendants 1 and 2 were attempting to sell the property to third parties, he issued a notice on 4-11-1980, for which a reply was given on 9-11-1980 denying the agreement and refusing performance. It is further said that from the beginning of the year 1976, plaintiff had always been and is even now ready and willing to perform his part of the agreement and to provide necessary stamp papers to get the sale deed executed by defendants and have it registered. It is further said that the defendants have received the entire sale consideration and, therefore, they should be directed to perform the contract as orally agreed in 1975. It is further said that the plaintiff is in possession of the property from the date of the agreement, and, if for any reason, defendants trespassed into the property, plaintiff should be put in possession of the same. It is further said that even though a date was fixed for performance of the contract, it is not the intention of the parties to treat the same as the essence of the contract. It is further said that even though a date was fixed for performance of the contract, it is not the intention of the parties to treat the same as the essence of the contract. It is his case that time was never intended as essence of contract, and since the defendants have also received the entire sale consideration, the question of stipulating time also loses its importance. It is further said that since defendants have agreed to execute the sale deed whenever called upon by the plaintiff, without reference to 15-6-1976, the cause of action for the suit has arisen only on the date when they refused to perform their part of the contract. An alternative relief is also claimed that if for any reason, specific performance cannot be granted, plaintiff will be allowed to recover the sale consideration paid by him and a charge on the plaint property. The suit was, therefore, filed for specific performance of the agreement for sale, and if necessary, to direct the defendants to put the plaintiff in possession, alternatively asking the defendants to pay a sum of Rs. 9,000/- as a first charge on the plaint property. 3. Written statement was filed by appellants where they denied the transaction. According to the defendants, on 15-6-1974, there is no agreement for sale, nor did they receive Rs. 9,000/- as alleged. It is their case that sometime in the year 1974, they received a sum of Rs. 2,500/- agreeing to convey the suit properties within seven months. The price stipulated was Rs. 3,000/- per acre. It is their case that the plaintiff was never ready to perform her part of the contract. He never paid the balance consideration, nor did he possess the money to pay. The allegation that defendants 3 and 4 left the village was denied. It is their case that defendants 3 and 4 used to come and go from the village. It is also contended that the suit is barred by limitation. They also disputed the claim of the plaintiff that he is in possession of the same. They assert that they continue to be in possession. The alleged oral variation of the year 1975 was also disputed. They prayed for dismissal of the suit. 4. The trial Court, after elaborately discussing the entire evidence, both oral and documentary, came to the conclusion that the plaintiff is entitled to specific performance. They assert that they continue to be in possession. The alleged oral variation of the year 1975 was also disputed. They prayed for dismissal of the suit. 4. The trial Court, after elaborately discussing the entire evidence, both oral and documentary, came to the conclusion that the plaintiff is entitled to specific performance. It came to the conclusion that Ex. A-3 was properly executed by the defendants and they received Rs. 9,000/- as stated in the plaint. It further found that the plaintiff was put in possession though on the date of suit, defendants were in possession. The trial Court believed the evidence of P.W.2, the plaintiff and also the oral evidence adduced on the side of the plaintiff which consisted of the evidence of P.Ws.1, 3 and 4. The first defendant got himself examined as D.W.1 and an independent witness was examined as D.W.2. Against the decree granting specific performance, an appeal was filed by the appellants as A.S. 105 of 1987, on the file of Subordinate Judge, Vridhachalam. Before the lower Appellate Court, the only point urged was, the question of limitation. In paragraph 9 of the judgment, the lower Appellate Court has said as to what transpired before it. Learned Counsel for the appellants before the lower Appellate Court agreed that he is not pursuing other allegations except the question of limitation. 5. After recording the statement, the lower Appellate Court held that the plaintiff has proved his case, and time will run only when the performance was refused by the defendants. The performance was refused only by virtue of the reply notice dated 9-11-1980. The suit having been filed in 1981, the lower Appellate Court held that the suit is not barred by limitation. The appeal was dismissed, confirming the judgment of the trial Court. 6. It is against the concurrent judgments, the defendants 1 and 2 have preferred this Second Appeal. 7. The only substantial question of law that was raised for consideration at the time of admission of the Second Appeal reads thus: — “Whether the Courts below ought not to have seen that under the first limb of Article 34 of the Limitation Act, the time begins to run from the date fixed under the agreement?” 8. Since the only question that has to be considered is, regarding limitation, we have to take note of the provisions of the agreement Ex. A-3. Since the only question that has to be considered is, regarding limitation, we have to take note of the provisions of the agreement Ex. A-3. The relevant portion of the agreement Ex.A-3 reads thus: Tamil It is the case of the plaintiff that the above term of the agreement was varied by an oral agreement whereby the defendants agreed that they will execute the sale deed at any time when the plaintiff called upon them even though the period is beyond 15.6.1976. It is his case that the defendants 3 and 4 left the village and they agreed to execute the sale deed on their return. Since they could not return, the document could not be executed. At the same time, defendants 1 and 2 also agreed to the proposal given by defendants 3 and 4 to have the deed executed even if the period had expired. 9. How far the said case is proved is the point to be decided. Even though the Courts below have believed the case of oral variation, certain basic materials have been omitted to be considered by the Courts below which, according to the learned counsel for the appellants, entitles this Court to interfere under Section 100 of the Code of Civil Procedure. According to the learned counsel, the alleged variation in the oral sale is only to overcome the period of limitation. Several circumstances are brought to my notice. 10. In paragraph 5 of the plaint, allegation is that from the beginning of the year 1976, plaintiff has always been and is even now ready and willing to perform his part of the agreement. So, from the case put forward by plaintiff is that only when he becomes ready, the question of taking the conveyance from the defendants will arise. If the plaintiff is not ready till 1975, or till the beginning of the year 1976, an extension of time even prior to 1976 does not arise for consideration. It is clear from the said paragraph that from 15.7.1974, till the beginning of the year 1976, plaintiff was not ready and willing to perform his part of the contract. In this connection, learned counsel also brought to my notice tevidence of P.W.3. In cross-examination, the witness said that the two year period itself was provided at the instance of plaintiff since he did not have the funds to purchase the property. In this connection, learned counsel also brought to my notice tevidence of P.W.3. In cross-examination, the witness said that the two year period itself was provided at the instance of plaintiff since he did not have the funds to purchase the property. The relevant portion of his evidence reads thus: — Tamil This extract is taken from Koothapadayachi v. Arjuna Pillai, (1998) 1 LW 301 , at page 306: So, it was at the instance of the plaintiff himself, two years period was provided, so that the plaintiff can raise funds for purchase of stamp paper. In Ex.A-4 notice, the month in which they allegedly entered into an oral agreement, is not mentioned. Ex.A-4 is dated 4-11-1980, i.e. , a few days before the institution of the suit. Immediately a reply was sent by the appellants denying any such oral agreement. Between 1974 and 1980, there is not even a scrap of paper to show that there was any such oral agreement, and the defendants also agreed to the same. For the first time, only when the suit notice was issued, a statement was made regarding the oral agreement. Once the defendants have received the entire sale consideration and the allegation is that the plaintiff is also put in possession, there is no necessary for the defendants to have the time extended. They have lost nterest in the entire property and even the document is to be executed only at the instance of the plaintiff. If so, there is no necessity for the defendants to postpone the execution of the sale deed, and the plaintiff who alleges that he has parted with the entire consideration will be more anxious to have the deed taken at the earliest. If the plaintiff was ready only in the year 1976 to get the sale deed, the allegation in the plaint that sometime in June 1975, there was an oral agreement, cannot be believed. At the time, there would not have been any demand by the plaintiff to have the deed executed. If the plaintiff was really ready on that date, nothing prevented him from taking the sale deed on that day itself. The clause in the agreement is, whenever the plaintiff calls upon the appellants before 15.6.1976, the document has to be executed. So, if such demand was made in 1975, the document would have been executed at that time. If the plaintiff was really ready on that date, nothing prevented him from taking the sale deed on that day itself. The clause in the agreement is, whenever the plaintiff calls upon the appellants before 15.6.1976, the document has to be executed. So, if such demand was made in 1975, the document would have been executed at that time. In cross-examination, the variation under the oral agreement is explained by P.W.2. The relevant portion of his deposition reads thus: Tamil If this statement is accepted, there cannot be any question of variation. Defendants 3 and 4 offered to executs the sale deed on their return within three months. That was in June 1975. So, the parties never intended to extend the time beyond and 15-6-1976. The statement that the parties never intended to go beyond 15-6-1976 in also further made clear from the evidence. In his deposition, he further said thus: Tamil So, he was also expecting the defendants to come within three months from June 1975 to execute the sale deed. If this is the oral agreement, it is not a variation of the contract, and the parties intended that 15-6-1976 should be the deadline for execution of the deed. When the plaintiff himself was not ready to take the sale deed, the allegation that he demanded to execute the sale deed sometime in 1975 cannot be correct. The admission in the plaint was not taken into consideration by the Courts below. If he himself could not be ready to take the sale deed before 15.6.1976, there is no scope for any variation of the contract to get the time extended. The trial Court believed the evidence of P.W.1 and came to the conclusion that there was variation of the contract and no time was fixed. After holding that no time was fixed, trial Court held that limitation will run only from the date of refusal. This, according to me, is a patent illegality committed by the trial Court. If only the trial Court had taken into consideration the admission in the plaint and on that basis considered the evidence of P.W.1, the result would have been different. It is not a case of appreciation of evidence, but it is a non-application of mind by the trial Court. That mistake committed by the trial Court was repeated by the lower Appellate Court also. It is not a case of appreciation of evidence, but it is a non-application of mind by the trial Court. That mistake committed by the trial Court was repeated by the lower Appellate Court also. The lower Appellate Court also said that if there is an oral variation, the time stipulated in Ex.A-3 need not be given any importance, and the time will run only from the date of refusal to perform. Both the Courts below have also not taken into consideration that from 1974 to 4.11.1980, no evidence was let in to show that the plaintiff was ready and willing to take the sale deed between that time. The limitation for getting specific performance of contract is prescribed under Article 54 of the Limitation Act. It says, three years from the date fixed for performance or if no such date is fixed, when the plaintiff has notice that performance has been refused. Courts below have applied the second period, and have held that the suit is not barred by time. If a time is fixed for performance, limitation will have to start from that date. In this case, as per Ex.A-3 agreement, a date is fixed for performance, i.e., at any time before 15.6.1976. The suit ought to have been filed within three years from that date. The suit which was filed only in the year 1981, is, therefore, hopelessly barred by limitation. 11. In (1990) 1 SCC 104 (Ramzan v. Hussaini), their Lordship said that ‘the requirement of Art. 54 of the Limitation Act is not that the actual day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein’. In that case, the document was to be executed after redemption of a mortgage. The mortgage was redeemed in 1970. Notice preceding the institution of the suit was given in 1984. Plaintiff alleged that the suit will be instituted from the date of refu sal of performance and he has got three years from that date. The said contention was repelled. Their Lordships said that if the date could be ascertained or fixed by the contract, the limitation has to run from that date and not from the date of refusal. 12. The said contention was repelled. Their Lordships said that if the date could be ascertained or fixed by the contract, the limitation has to run from that date and not from the date of refusal. 12. In a recent decision reported in (1996) 8 SCC 365 = 1996 2 L.W. 266 (D.S. Thimmappa v. Siddaramakka), their Lordships said that unless the deed stipulates a date for performance, time is not always the essence of the contract. In that case, their Lordships said that ‘Limitation for specific performance begins to run from the date fixed in the contract or from the date of refusal to execute the sale deed. Since time is not the essence of the contract, the respondent had offered the payment of the amount before the expiry of the date of reconveyance but the appellant had refused to reconvey the same’. Their Lordships said that refusal to receive the money amounts to refusal to perform the contract and, therefore, time runs from that date. In that case, a period of eight years was provided for return of the sale consideration, and within the said period, the suit itself was filed. But their Lordships gave importance to the two clauses in Art. 54 of the Limitation Act. 13. In 1993 2 L.W. 411 ( Krishnan Nair, K. & 3 others v. K. Parameswaran Pillai & 23 others ), a Division Bench of our High Court had occasion to consider a similar question. In that case, the agreement provided that the document will be executed after final order was passed in the 145 Cr.P.C. proceedings that was pending on that date. Sec. 145 Cr.P.C. proceedings was taken in Revision and other proceedings before higher Courts and, ultimately, the executants were declared to be in possession. A notice was issued seeking execution of the deed since the agreement provided that the document will be executed after the ultimate decision of the higher authorities. The Division Bench held that the performance must be within one month from the date of order in Sec. 145 Cr.P.C. proceedings, and not from the date of final order in the Appeal and Revision. The Division Bench held that the performance must be within one month from the date of order in Sec. 145 Cr.P.C. proceedings, and not from the date of final order in the Appeal and Revision. In paragraph 15 of the judgment, their Lordships said that Art. 54 of the Limitation Act, 1963 prescribes a period of three years for a suit for specific performance of a contract from the date fixed for the performance or, if no such date is fixed, when the plaintiff has noticed that performance is refused’. In the present case, the date is fixed by the parties. Though actual date is not fixed, parties have mutually agreed as regards the time within which the contract should be performed. 14. It has been held in 1956 I-MLJ 163 (Muniswami Gounder v. Shamanna Gouda), that the words “date fixed” are comprehensive to include a date which can be ascertained with reference to an event certain to happen.The suit having been filed only on 18.7.1979, is clearly barred by limitation’. 15. In 1995 2 L.W. 710 ( Rajamani Ammal v. Neelambal Ammal and Neeld ), Abdul Hadi, J. has said that’ If a date is fixed for the performance of the contract, under an agreement for specific performance the period of limitation is three years from the said date. Only if no such date is fixed, the three years period begins to run from the date when the plaintiff has notice that the performance is refused. 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 column 3 to Art. 54 would apply’. Since I hold that a date has been fixed in this case, and even if there was an oral agreement as alleged by the plaintiff that also did not vary the terms of the contract, namely, Ex.A-3. Courts below have not seriously considered the scope of Art. 54 of the Limitation Act while granting a decree in favour of the plaintiff. That itself is sufficient for the dismissal of the suit. 16. Learned counsel for the respondent relied on the decision reported in AIR 1944 Mad. 218 = (1943) 56 L.W. 679 ( Mallikarjuna v. Pardhasaradhirao ). Courts below have not seriously considered the scope of Art. 54 of the Limitation Act while granting a decree in favour of the plaintiff. That itself is sufficient for the dismissal of the suit. 16. Learned counsel for the respondent relied on the decision reported in AIR 1944 Mad. 218 = (1943) 56 L.W. 679 ( Mallikarjuna v. Pardhasaradhirao ). In that case, the vendor agreed to execute a sale deed whenever his brothers who were studying elsewhere returned to the village. In that case, a Division Bench of this Court held that time will run only from the date of refusal. It was held thus: — “The contract was entered into on 18th July 1934, and the vendor promised to execute the sale deed when both of his brothers who were studying elsewhere returned to the village for the next vacation, i.e. , in May-June 1935: Held that this was too indefinite to be regarded as fixing a “date” for the performance of the contract and the period of limitation must be computed from the date of refusal to perform, i.e. , the date of the reply notice sent by the vendor wherein he denied the contract”. The above decision was referred to in (1990) 1 SCC 104 (supra). In paragraph 7 of the judgment, their Lordships considered the decision cited by learned counsel for the respondent. Their Lordships distinguishing the said decision, said that in that case the intending purchaser had no say at all as to when the brothers of the vendor would return to the village. In this case, it cannot be said that the plaintiff had no say when a definite date was fixed under the agreement, and when the alleged oral agreement also did not extend the time. Even though this is sufficient for allowing the Second Appeal, Learned counsel for the appellants as well as respondents argued about the readiness and willingness of the parties to perform their respective part of the contract. 17. Learned counsel for the appellants relied on a very recent decision of the Supreme Court reported in (1996) 4 SCC 526 (His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar) where their Lorships distinguished between readiness and willingness, and what is the importance of those words under Specific Relief Act. 17. Learned counsel for the appellants relied on a very recent decision of the Supreme Court reported in (1996) 4 SCC 526 (His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar) where their Lorships distinguished between readiness and willingness, and what is the importance of those words under Specific Relief Act. In paragraphs 2 and 3 of the judgment, their Lorships said that ‘There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the contract has to be properly scrutinised. The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances’. It is here, the importance of the pleadings comes into play. I have already said that in paragraph 5 of the plaint, the statement is only that from the beginning of the year 1976 the plaintiff has always been ready and willing to perform his part of the contract’. Under Section 16 of the Specific Relief Act, readiness and willingness from the date of agreement till the date of sale deed should be pleaded and proved. By the plaintiff making a statement in the plaint that he was ready from the beginning of the year 1976, an inference has to be drawn that he was never ready and willing to take a sale deed before that time. The evidence of P.Ws.2 and 3 also will only support the said inference. Even in cross-examination of P.W.2, he has said thus: — Tamil I have already extracted the evidence of P.W.1 why the period of extension was written as two years. So, even after the sale consideration was paid, plaintiff was never ready and willing to take the sale deed even though the document could have been made before 15.6.1976. Readiness should not only be shown as on 15.6.1976, but should also be shown during the entire two years period. The subsequent notice, namely, Ex.A-4 also does not disclose the readiness and willingness of the plaintiff. 18. In this case, plaintiff has said that he is in possession of the property and that too on 15.6.1974, the date of Ex.A-3 agreement. The subsequent notice, namely, Ex.A-4 also does not disclose the readiness and willingness of the plaintiff. 18. In this case, plaintiff has said that he is in possession of the property and that too on 15.6.1974, the date of Ex.A-3 agreement. If possession was also handed over on that date as alleged by plaintiff nothing prevented the parties from stating so. There is no statement in Ex.A3 that possession was handed over to plaintiff. From the above conduct also, it is seen that the plaintiff has come forward with a case which is not fully true. 19. Under the above circumstances, the discretionary relief of specific performance should not have been granted in favour of plaintiff. Even the plaintiff was aware that he cannot get specific performance as of right. That is why he has sought for the alternative relief of return of the advance amount paid. Once the suit is held as barred by limitation, plaintiff will not be entitled to the alternative relief also. 20. In the result, the question of law is found in favour of the appellants. O.S. 193 of 1981, on the file of District Munsifs Court, Kallakkurichi, is dismissed. The Second Appeal is allowed, however, without any order as to costs.