SUKH DEV SINGH v. NARANJAN KAUR — 1997 DIGILAW 258 (HP)

JUDGMENT R.L KHURANA, J.—The only question falling for determination in the present regular second appeal is whether the suit filed by the plaintiffs on 20-4-1983 for specific performance of the agrement to sell dated 21-12-1972 is within time ? 2. Briefly stated, the facts of the present case are these. S/Shri Rattan Singh, Saran Singh and Gurbachan Singh sons of Rania alias Tarlok Singh residents of Shamsherpur, Tehsil Paonta Sahib District Sirmaur, on 21-12-1972 entered into an agreement to sell with one Piara Singh, father of appellants (hereinafter referred to as the plaintiffs), whereby they agreed to sell land, detailed in the plaint and hereinafter referred to as the land in dispute for a consideration of Rs. 25,000/-. A sum of Rs. 21,000/- as earnest money was received by them as under on the date of the agreement vide receipts separately executed : (i) Shri Rattan Singh Rs. 8,333.33 paise (ii) Shri Saran Singh Rs. 8,333.33 paise (iii) Shri Gurbachan Singh Rs. 4.333.34 paise In other words, while the entire sale consideration as per their share was received by S/Shri Rattan Singh and Saran Singh, a part payment was received by Shri Gurbachan Singh on the date of agreement itself. The remaining amount of Rs. 4,000/- was received by Shri Gurbachan Singh in two installments, that is, Rs. 3,800/- on 19-6-1973 and Rs. 200/- in 1981. 3. Shri Saran Singh above named died sometime in 1974-75 and was succeeded by respondents 1 to 8 (defendants 2 to 9 before the learned trial court). Since some of the legal heirs of the deceased Saran Singh were minors, the execution of sale deed in pursuance of the agreement to sell was postponed since requisite permission for the sale of property for and on behalf of such minors was required to be obtained. Shri Piara Singh abovenamed died in May, 1976 and was succeeded by the plaintiffs. 4. The defendants failed to execute the sale deed in favour of the plaintiffs in-spite of having been repeatedly called upon to do so. They ultimately in 1982 refused to execute the sale deed. The plaintiffs accordingly on 20-4-1983 filed the suit for specific performance of the agreement to sell. 5. Defendants No. 1 and 10, namely, S/Shri Rattan Singh and Gurbachan Singh did not contest the suit. They admitted the claim and suit of the plaintiffs in toto. 6. They ultimately in 1982 refused to execute the sale deed. The plaintiffs accordingly on 20-4-1983 filed the suit for specific performance of the agreement to sell. 5. Defendants No. 1 and 10, namely, S/Shri Rattan Singh and Gurbachan Singh did not contest the suit. They admitted the claim and suit of the plaintiffs in toto. 6. Defendants 2 to 9, the successors-in-interest of the deceased Saran Singh contested the suit. They denied the execution of agreement to sell dated 21-12-1972 by Saran Singh. The receipt of the sum of Rs. 8,333-33 paise by the said Saran Singh was further denied. An objection as to the suit not being within time was also raised. 7. The learned trial court vide judgment and decree dated 7-3-1987 decreed the suit of the plaintiffs for specific performance. The defendants were directed to execute the requisite sale deed in favour of the plaintiffs and to get it registered within a period of two months. The learned trial court came to the conclusion that a valid agreement to sell, Ex. PH, was executed by defendants 1 and 10 and the deceased Saran Singh for sale of the land in dispute. The whole of sale consideration stood paid. The plaintiffs were found to be in possession of the land in dispute in pursuance of the agreement to sell. The suit was found to be within time having been filed within three years from the date of the refusal of the performance of the agreement on the part of defendants, 8. The defendants 2 to 9 went up in appeal before the learned District Judge assailing the findings of the learned trial court on the issue of limitation, it was contended that time was the essence of the contract and as per the terms of the agreement safe deed was to be executed within one year from the date of attestation of mutation of exchange. The requisite mutation qua exchange was attested on 30-12-1972. The sale deed was to be got executed and registered by 30-12-1973. The suit having been filed on 20-4-1983 after more than 9 years of the expiry of the requisite date was, on the face of its, hopelessly time barred. 9. The requisite mutation qua exchange was attested on 30-12-1972. The sale deed was to be got executed and registered by 30-12-1973. The suit having been filed on 20-4-1983 after more than 9 years of the expiry of the requisite date was, on the face of its, hopelessly time barred. 9. The learned District Judge vide judgment and decree dated 13-6-1989 allowed the appeal of defendants 2 to 9 and after setting aside the judgment and decree of the learned trial court, dismissed the suit of the plaintiffs. The learned District Judge non-suited the plaintiffs on the ground of limitation by holding the suit being time-barred. The learned District Judge also came to the conclusion that time was of essence of the contract between the parties. The plaintiffs by way of the present second appeal have assailed the findings of the learned District Judge. 10. Article 54 of the Limitation Act, 1963, prescribes a period of Limitation of three years for a suit for specific performance of the contract. Such period is to be reckoned from the date fixed for the performance, and if no such date is fixed from the date when the plaintiff has noticed that the performance is refused. 11. The apex court in Chand Rani (Smt.) (Dead) by Lrs. v, Kamal Rani (Smt.) (Dead) by Lrs. (1993) 1 SCC 519 has held that as a general proposition of law, in the case of sale of immovable property there is no presumption as to time being the essence of the contract. To the similar effect has been held in Bibi Jaibuisha v. Jagdish Pandit and others, (1997) 4 SCC 481. The apex court has further held that even if time is not of essence of the contract, the court may infer that it is to be performed in a reasonable time if the conditions are evident: (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example the object of making the contract. 12. In Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488 it was held that the plea as to time is of the essence of the contract must be specifically raised and issue framed so that the other party has a right to lead evidence. 12. In Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488 it was held that the plea as to time is of the essence of the contract must be specifically raised and issue framed so that the other party has a right to lead evidence. It was observed in para 6 of the judgment: - "On the question whether the time is of the essence of the contract or not we are satisfied that the High Court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raised before the trial court and when the case of time being the essence of the contract was not put forward by the respondents in the trial court. Apart from the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract." No specific plea with regard to time being of essence of the contract was raised by the defendants in the present case. They had in fact denied the very execution of the agreement to sell Ex. PH by Saran Singh, their predecessor-in-inter-est. Their further case has been that the agreement could not be enforced as against them after the lapse of about ten years. 13. In the absence of specific pleadings and issue as to the time being of essence of the contract, the defendants cannot be allowed to raise such a question. The learned District Judge was, thus, in error in allowing the defendants to raise such a question and also in accepting such a plea while non-suiting the plaintiffs. 14. Even otherwise, a bare perusal of the agreement Ex. PH shows that time is not of the essence of the contract. The relevant term on which reliance has been placed by the learned District as well as the learned counsel for the defendants, when translated to English reads : - "Hence we hereby undertake in writing that we shall get the mutation regarding exchange of land effected in our favour and get the same attested within one year. Thereafter we shall get the sale-deed in respect of the land registered in favour of Sardar Pyar Singh after its preparation and attestation." 15. Admittedly, there has been some exchange of land as between the three promisors, namely, Gurbachan Singh, Rattan Singh and Saran Dass. Thereafter we shall get the sale-deed in respect of the land registered in favour of Sardar Pyar Singh after its preparation and attestation." 15. Admittedly, there has been some exchange of land as between the three promisors, namely, Gurbachan Singh, Rattan Singh and Saran Dass. This exchange also included the land in dispute. The above referred to term indicates that in order to felicitate the execution and registration of sale deed in terms of agreement Ex. PH, a mutation qua such exchange was required to be attested in favour of the promisors. Therefore, they undertook to get such mutation attested in their favour within one year. The sale deed was to be executed thereafter for which no time was fixed. 16. The learned District Judge by mis-reading the relevant term has erred in holding that time is of the essence of the contract and that the suit was barred by time. 17. It has been contended on behalf of the defendants that even if it be taken that time is not of essence of the contract, the agreement Ex. PH was required to be enforced within a reasonable time. It has further been contended that in the present case the plaintiffs have sought the enforcement of the agreement Ext. PH which was executed on 21-12-1972 only on 20-4-1983, that is, after a lapse and delay of more than 10 years. Such delay has not been explained by the plaintiffs. Failure to explain the delay would show inaction on their part in clear violation of ( the terms of the agreement. 18. The apex Court in Satyanarayana v. Yellogi Rao, (1965) 2 SCR 221 while pointing out the distinction between Indian law and the English law on the subject, has observed : "While in England, mere delay or laches may be a ground for refusing to to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. It is not possible or desirable to lay down the circumstance under which a court can exercise its discretion against the plaintiff. It is not possible or desirable to lay down the circumstance under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." 19. In the present case, there is nothing on the record to show inaction on the part of the plaintiffs. The circumstances causing delay cannot be attributed to the plaintiffs. The last installment towards sale consideration was paid vide receipt Ex. PK to defendant No. 10 in 1981. One of the promisors, namely, Saran Singh had died in 1974-75. The original promisee Piara Singh, father of the plaintiffs had died in May, 1976. Admittedly, as many as six legal heirs of the deceased promisor Saran Singh where minors. Therefore, permission was required for sale of the land in dispute on their behalf from a competent court under Section 8 of the Hindu Minority and Guardianship Act, 1954. Such legal heirs continued to be minors even as on the date of filing of the suit. Nothing has come on the record to show that defendant No. 2 Smt. Naranajan Kaur, mother and guardian of such minors, at any time took steps for obtaining the requisite permission to sell the shares of the minors in the land in dispute in terms of agreement Ex. PH. The defendants 2 to 9 have in fact denied the very execution of the agreement by the deceased Saran Singh. Therefore, the delay in the enforcement of the agreement is attributable to the defendants themselves, which also indicates the unwillingness to perform their part of the agreement. It is not the case of the defendants that they have always been ready and willing to perform their part of the agreement and that the plaintiffs were avoiding the performance thereof. 20. Resultantly, the present appeal is allowed. The judgment and decree dated 13-6-1989 of the learned District Judge are set- aside and that of the Learned Trial Court dated 7-3-1987 restored. The defendants are called upon to execute the requisite sale deed and get it registered in favour of the plaintiffs in terms of agreement Ex. 20. Resultantly, the present appeal is allowed. The judgment and decree dated 13-6-1989 of the learned District Judge are set- aside and that of the Learned Trial Court dated 7-3-1987 restored. The defendants are called upon to execute the requisite sale deed and get it registered in favour of the plaintiffs in terms of agreement Ex. PH within six months from today after obtaining the requisite permission under Section 8 of the Hindu Minority and Guardianship Act, 1954 if required. Parties to bear their own costs. Appeal allowed.