Judgment 1. The defendant has preferred the second appeal aggrieved against the judgment and decree made in A.S.No.64 of 1983, dated 12.12.1983 on the file of District Court, East Thanjavur, Nagapattinam, confirming the decree and judgment of the Court of the Subordinate Judge of Mayiladuthurai in O.S.No.127 of 1981, dated 18.2.1983. 2. The case in brief is as follows: The plaintiff filed a suit for specific performance of the agreement of sale or in the alternative of recovery of Rs.15,610 from the defendant. The plaintiff entered into a written agreement of sale in respect of the suit property with the defendants father Subba Rao on 1.7.1976 agreeing to purchase the property for a sum of Rs.16,500. As per the agreement, the parties have to complete the sale by 15.2.1977. But time is not the essence of the contract. The plaintiff paid a sum of Rs.3,000 by way of advance even on the date of the agreement and later paid Rs.2,000 on 21.8.1976. Rs.1,500 on 26.2.1977 and Rs.1,000 on 1.7.1977 towards the agreement of sale. These payments were endorsed by the plaintiffs father on the agreement itself. The plaintiff also paid another sum of Rs.3,000 on 10.8.1977 with the defendants father but the same was not endorsed in the agreement. Thus in all, the plaintiff has paid a sum of Rs.10,500 towards the sale transaction. The plaintiff was and is ready and willing to pay the balance amount and complete the said sale transaction. The defendants father was postponing the completion of the sale. On 20.8.1977, the defendants father issued a notice to the plaintiff, calling upon him to complete the sale within a week and in the notice, he has not referred the several payments made by the plaintiff. The plaintiff thereupon issued a reply notice on 30.8.1977 expressing his readiness and willingness, but, however, he did not come forward to complete the sale. On 19.9.1979, the plaintiff issued a notice to the defendants father, calling upon him to complete the sale. The defendants father evaded to receive the same and the same was returned. The father of the defendant died in August, 1980. The defendant is the only heir and legal representative of the defendants father. The plaintiff approached her in the second week of October, 1980 to execute the sale deed, but she refused to do so. The defendants father evaded to receive the same and the same was returned. The father of the defendant died in August, 1980. The defendant is the only heir and legal representative of the defendants father. The plaintiff approached her in the second week of October, 1980 to execute the sale deed, but she refused to do so. The plaintiff is ready and willing to pay the balance of sale consideration viz., Rs.6,000 and furnish the stamp papers. If for any reason the agreement of sale is not specifically performed by the defendant he is entitled to get back from the defendant as an alternative remedy a sum of Rs.10,500 with interest at 12% per annum from 10.8.1977 and this claim is made without prejudice his right from the main relief. The suit is in time having been filed within three years from the date of refusal by the defendant to execute the sale deed. 3. The defendant resisted the suit contending that she came to know about the agreement only later. The plaintiff never met her in connection with the sale agreement. Since the plaintiff did not perform his part of the contract during the life time of Subba Rao, it has become unenforceable after his lifetime. The suit is also barred by limitation. The defendant has entered into an agreement on 31.1.1982 with one Kuppuswamy Ayyar to sell the suit property for Rs.13,000 and received Rs.9,500. The plaintiff has been evading to perform his part of the contract. The suit has been filed by the plaintiff in order to prevent her from selling the property to Kuppuswamy Iyer. The plaintiff was not in possession of funds to perform his part of the contract. He is not entitled to the relief of specific performance also. The alleged payments said to have been made by the plaintiff to her father are also denied. 4. The trial court framed 3 issues and Exs.A-1 to A-6 were marked and P.Ws.1 and 2 were examined on the side of the plaintiff. On the side of the defendant, Exs.B-1 to B-3 were marked and D.W.1 was examined. The trial court decreed the suit for specific performance of contract with costs. The defendant preferred A.S.No.64 of 1983 on the file of District Court, Nagapattinam and the appeal was also dismissed and aggrieved against this, the defendant has come forward with the second appeal. On the side of the defendant, Exs.B-1 to B-3 were marked and D.W.1 was examined. The trial court decreed the suit for specific performance of contract with costs. The defendant preferred A.S.No.64 of 1983 on the file of District Court, Nagapattinam and the appeal was also dismissed and aggrieved against this, the defendant has come forward with the second appeal. After filing the second appeal, the plaintiff died and the legal representatives are impleaded as respondents 2 to 7. 5. The points that arise for consideration are: (1) Whether the plaintiff is entitled to the relief of specific performance of contract. (2) Whether the suit is barred by limitation. (3) Whether the plaintiff is entitled to the alternative relief for recovery of Rs.15,610 with interest. (4) To what relief. 6. Points:There is no dispute that the plaintiff and on Subba Rao entered into an agreement under Ex.A-1 dated 1.7.1976, whereby Subba Rao agreed to convey the property for a sum of Rs.16,500. The plaintiff further stated that even on the date of Ex.A-1, a sum of Rs.3,000 was paid by way of advance and apart from that subsequently, the payments were also made under Exs.A-2 to A-4 and they were also endorsed in the document. Further a sum of Rs.3,000 was also paid on 10.8.1977, but the same was not endorsed in the document. The plaintiff claimed that he was always ready and willing to perform his part of the contract on payment of the balance amount, but only the father of the defendant was postponing the same. Subbarao died in August, 1980 and the suit was filed on 3.9.1981. 7. The learned counsel for the defendant contended that the plaintiff is not entitled to the relief of specific performance of contract as he had committed breach of the contract. The plaintiff had no funds in his hands at the relevant point of time and he had not even purchased the necessary stamp papers for engrossing the sale deed and complete the sale transaction. The suit filed by the plaintiff is also barred by time since even according to Ex.A-1, the sale transaction has to be completed before 15.2.1977. However, the plaintiff is also not entitled to the discretionary relief of specific performance on the facts and circumstances of this case. The suit filed by the plaintiff is also barred by time since even according to Ex.A-1, the sale transaction has to be completed before 15.2.1977. However, the plaintiff is also not entitled to the discretionary relief of specific performance on the facts and circumstances of this case. This relief is also not available to the party in a case where money compensation is sufficient to meet the ends of justice. Both the courts below have also failed to consider the alternative relief of money compensation claimed by the plaintiff. Art.54 of the Limitation Act is applicable to the case on hand. Even assuming that only second of the Article would apply, the last date for filing a suit is three years and even then the suit claim is barred by time in any view of the matter. The decision relied on by both the courts below in New India Assurance Co. Ltd. v. Food Corporation of India, etc. 96 L.W. 116 is not applicable. 8. I have heard the submissions of the learned counsel on either side and also perused the documents and other materials connected in the case. Both sides have pointed out the relevant paragraphs in the judgment of the courts below. It is practically conceded that there is an agreement of sale between the father of the defendant and the plaintiff under Ex.A-1, dated 1.7.1976. At one point of time, the defendant disputed the payments said to have been made by the plaintiff under Exs.A-2 to A-4 and also on 10.8.1977. However, P.W.2 has been examined in order to prove these payments, Moreover, the plaintiff has pointed out these payments even during the lifetime of Subba Rao but, however, no rejoinder was sent disputing these payments. It is only under these circumstances, both the courts came to the conclusion that payments under Exs.A-2 to A-4 were made and they were also endorsed in the document and similarly the last payment of Rs.3,000 was made on 10.8.1977. Now the learned counsel for the defendant is not seriously disputing about Ex.A-1 or the payments said to have been made by the plaintiff towards the sale agreement. Now the learned counsel for the defendant is not seriously disputing about Ex.A-1 or the payments said to have been made by the plaintiff towards the sale agreement. The main contention put forward by the learned counsel for the defendant is that the suit claim is barred by limitation and further more a discretionary relief of a specific performance cannot be granted to the plaintiff and at best, the plaintiff would be entitled to get recovery of the amount which is claimed as an alternative relief. 9. Subba Rao issued a notice to the plaintiff under Ex.B-1, dated 20.8.1977 calling upon the plaintiff to perform his part of the contract. The reply was sent under Ex.B-2 dated 30.8.1977. The learned counsel for the defendant first contended that time is the essence of the contract since there is a recital in the document itself that the parties have to complete the sale by 15.2.1977 and as the suit has not been filed within three years, the suit is barred by time. The learned counsel for the plaintiff contended that time is not the essence of the contract since even after the expiry of 15.2.1977 several payments have been made with Subba Rao and he had received the same. The learned counsel for the plaintiff further pointed out that the second part of Art.54 of the Limitation Act alone can be made applicable to the case on hand and in that case, the cause of action will commence only from the date of refusal of a specific performance of contract. The plaintiff sent a notice under Ex.A-1, dated 19.9.1979 and the notice was returned undelivered and as such, the suit was filed within three years from the said date. The learned counsel for the defendant would contend that first part of Art.54 of the Limitation Act alone can be applicable and if that be so, the suit is barred by time and, as such, the plaintiff is not entitled to the relief of specific performance. 10. The learned counsel for the defendant relied upon a Bench decision of this Court in P.Sivan Muthian and others v. John Sathiavasagam P.Sivan Muthian and others v. John Sathiavasagam P.Sivan Muthian and others v. John Sathiavasagam (1980)1 MLJ. 490wherein it is observed that, “the first part of Art.54 of the Limitation Act could be invoked only when there is a definite date fixed for performing thecontract. 490wherein it is observed that, “the first part of Art.54 of the Limitation Act could be invoked only when there is a definite date fixed for performing thecontract. It is true that the expression ‘date fixed’ could mean either the date expressly fixed or the date which can be fixed with reference to a future event, which is certain to happen. If on the other hand, the date is to be ascertained, depending upon an event which is not certain to happen, this part of Art.54 is not at all applicable. In that contingency, it is only the latter part of Art.54 that could be invoked treating the case as one in which no date has been fixed for performance and that would be three years from the date when the plaintiff has notice that performance is refused.” This decision is exactly applicable to the case on hand. 11. The learned counsel for the defendant also relied upon another decision of this Court in Rajamani Ammal v. Neelambal Ammal alias Neela (1995)2 L.W. 710 , wherein it is observed 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 the essence of the contract is not relevant for determining whether column 3 to Art.54 would apply”. This decision is exactly applicable to the case on hand in all fours. 12. It is clear from Art.54 of the Limitation ct that for specific performance of a contract, the period of limitation is three years. Column 3 relates to the commencement of the cause of action. The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice, that performance is refused. The plaintiff takes shelter under Second part of Art.54 whereas the defendant is relying upon the first part of Art.54. Column 3 relates to the commencement of the cause of action. The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice, that performance is refused. The plaintiff takes shelter under Second part of Art.54 whereas the defendant is relying upon the first part of Art.54. The ratio from the aforesaid decisions is evidently clear that only if no such date is fixed, the three years period begins to run from the date when the plaintiff had notice that the performance is refused. But under Ex.A-1, there is a clear recital that the sale has to be completed by 15.2.1977 and accordingly, I am of the view that part 1 of Art.54 alone will apply to the case on hand. If that be so, the plaintiff ought to have filed a suit on or before 15.2.1980. However, the suit has been filed much thereafter, it is also necessary to state that although Subba Rao, (the father of the defendant) died in August, 1980 the plaintiff has not chosen to file the suit immediately but he waited and filed the same only on 3.9.1981. Hence, it is evidently clear that the suit filed by the plaintiff is barred by time and only to get over the same and the bring the case under part 2 of Art.54, the plaintiff contended that he has got notice that performance was refused only on 19.9.1979. Both the courts below have not properly appreciated the position of law and there was miscarriage of justice. As the suit filed by the plaintiff was barred by time, the plaintiff is not entitled to the claim of specific performance of the agreement of sale and, as such, the findings of both the courts below are liable to be set aside. 13. The plaintiff has claimed an alternative relief of recovery of the amounts paid by him with interest, even in the lower appellate court, the defendant stated that she has no objection to repay the sum of Rs.10,500 with interest. The lower appellate court also gave a finding that the plaintiff would be entitled to a decree for recovery of Rs.10,500 with interest at 6% from the date of plaint till realisation and the same is not disputed now. The lower appellate court also gave a finding that the plaintiff would be entitled to a decree for recovery of Rs.10,500 with interest at 6% from the date of plaint till realisation and the same is not disputed now. As adverted to even in the grounds of appeal, it is stated that the plaintiff would be entitled to get return of the amount and not the relief of specific performance. Hence, I hold that the plaintiff would be entitled to a decree for recovery of a sum of Rs.10,500 with interest at 6% per annum from the date of suit till realisation. 14. For the reasons stated above, the second appeal is allowed and the judgments and decrees of the courts below are set aside and the suit is decreed that the plaintiff would be entitled to the alternative relief of recovery of a sum of Rs.10,500 with interest at 6% per annum from, the date of suit till date of realisation and in other respects, the suit is dismissed. In the peculiar circumstances, there will be no order as to costs.