JUDGMENT (PER SMT. ROSHAN DALVI, J.) 1. The Appellants are the original Defendant s in the above Suit. They were sued upon an unregistered agreement dated 15th April, 1988 executed by them with the Respondent s on 15th April, 1988 for purchase of a Flat No.G- 30 in Army Welfare Co-operative Society (Organisation), Salunkhe Vihar at Pune for Rs.3,23,000 / - . The Appellants paid Rs.2,98,000 / - to the Respondent s out of the aforesaid consideration. They have been put in possession. They have remained in possession since. 2. The Respondent No.1 is a retired Army Officer. He was allotted the said premises. The said premises could be transferred only to the persons declared eligible for allotment of such dwelling units. It is the case of the Respondent s that the Appellants were not eligible but made representation to the Respondent s that they were eligible and consequently made members of the Society pursuant to which they executed agreement for sale in their favour. They later found out that the representations made by them were fraudulent. Hence, they sued the Appellants for declaration that the agreement is void and not binding on them and for recovery of the possession of the flat from the Appellants. In the alternative they have prayed for payment of the balance consideration Rs.25,000 / - with interest at the rate of 18% p.a and consequential expenses incurred by them in the execution of the agreement. 3. The agreement has been entered into on 15th April, 1988. The Suit was filed on 3rd December, 1998. The Appellants therefore, contend that the suit is barred by limitation. The learned Judge has considered the issue of limitation under Article 65 of the Limitation Act. He has computed the period of 12 years from the date of the agreement as the period available to the Plaintiffs to sue. 4. The Respondent s as the Plaintiffs sued for declaration of the voidability of the agreement. The suit, therefore, fell within Article 58 of the Limitation Act. 5. The chronology of the events and dates would be required to be considered initially to determine whether the right to sue accrued to the Respondent s as the Plaintiff's within 3 years of the execution of the agreement itself or thereafter. The suit, therefore, fell within Article 58 of the Limitation Act. 5. The chronology of the events and dates would be required to be considered initially to determine whether the right to sue accrued to the Respondent s as the Plaintiff's within 3 years of the execution of the agreement itself or thereafter. The Appellants were put in possession of the suit premises on the date of the execution of the agreement itself on 15th April, 1988. The irrevocable Power of Attorney was executed by the Respondent s in favour of the Appellants on 12th April, 1988. The nomination form in favour of Appellant was executed by the Respondent on 17th April, 1988. A public notice about the trans action was given on 25th June, 1989. The Respondent No.1 received a letter of the Army Welfare Organisation on 8th June, 1990 refusing permission to sell or transfer the suit premises to the Appellants. The Respondent s, therefore, had knowledge that the sale could not go through since June, 1990. 6. It is the case of the Appellants that they pursued the transaction on behalf of the Respondent s for many years thereafter and that much later on 28th May, 1998 a letter came to be addressed by the Army Welfare Organisation to Appellant No.1 informing her that the Respondent No.1 continued in the records of the Army Welfare Association as owner of the suit flat and that she may pursue her transfer application with the society since the flat has been transferred to Salunkhe Vihar Society. The Respondent s have contended that, that letter (not addressed to the Respondent No.1) but addressed to Appellant No.1 saved the bar of limitation and the suit having being filed on 3rd December, 1998 could not be dismissed as having been barred by limitation. The learned Judge has considered the issue of limitation on entirely different point. He has held that the suit will be governed by Article 65 of the Limitation Act since it relates to recovery of possession of immovable property. The suit is essentially for declaration that the agreement dated 15th April, 1988 executed between the parties is void. It is not for claiming recovery of possession of a property which has been lawfully in possession of the parties sued. The suit is essentially for declaration that the agreement dated 15th April, 1988 executed between the parties is void. It is not for claiming recovery of possession of a property which has been lawfully in possession of the parties sued. Article 65 relates to the right of presaiption that the defendant can legitimately claim if within the period of limitation mentioned in the said Article, (which is 12 years), the Plaintiff does not sue. It therefore, does not relate to suits based upon transfer of title. The applicable Article of the Limitation Act in this case for declaration that the agreement is void on the ground of the Appellant's making a fraudulent representation to the Respondent s is Article 58. It grants the party 3 years from the time the right to sue first accrued. The right to sue in this case first accrued on 8th June, 1990 when the first Respondent was informed about the refusal of the permission for sale. The suit should, therefore, should have been filed on or before 7th June, 1993. 7. The period of limitation cannot be saved by any correspondence made to the Defendant s by the granting authority. Hence, reliance upon the letter dated 28th May, 1998 addressed to the Appellants by the Army Welfare Housing Organisation is entirely misplaced. The suit became distinctly barred by the law of limitation. 8. On merits the Respondent /Plaintiff contended that the Appellants fraudulently represented to Respondent No.1 that they were eligible to purchase the Flat G-3 which is a property in Army Officers Quarters. Reliance is placed upon a letter dated 14th December, 1987 Exhibit- 39 in evidence addressed to Appellant No.1 making a reference to an application form submitted by her for spot scheme in 1 Trifty Apartment , where her membership has been considered and she has been registered for allotment of flat by the Army Welfare Housing Organisation. That permission or concession is not in respect of the flat of Respondent No.1 which is the suit premises. A representation made by such a letter cannot be stated to have deceived the Respondent No.1 into believing or concluding that the Appellant no.1 was eligible to be allotted the suit flat and which could have triggered his response to execute the agreement , obtain a large part of purchase consideration and put her in possession of the suit flat. 9. 9. The Respondent s as the Plaintiffs in the suit have not given specific particulars of the fraud stated to have been perpetrated upon them. They have not set out how and when they were deceived into executing the agreement which they want to avoid. The learned Judge has observed in para 24 of the judgment the admission of the Appellant no.1 that she had informed Respondent No.1 that her membership was accepted vide the letter Exhibit- 39. 10. A further fraudulent representation stated to have been made by the Appellants is relating to their relationship. It is contended by the Respondent s that it was represented to Respondent No.1 that the Appellant No.2 was the son- in- law of the Appellant No.3 and a retired Colonel from the Army. Upon such representation it is sought to be contended that since he was related to an Army personnel he could have been accepted as the member of the Army Welfare Organisation. 11. Aside from the fraud is the aspect of the deceit itself. Nothing, which though meant to deceive, but does not deceive is fraud. It has to be seen whether the Respondent No.1 was deceived by the representation as to the relationship as well as to the existence of the membership made by the Appellants. The Respondent had received a chunk of the consideration aggregating to Rs.2,98,000 / - out of agreed amount of Rs.3,23,000 / - on the date of the agreement itself. Consequently the Respondent s put the Appellants in possession of the suit premises. What the Court is to consider is the prejudice, if any, suffered by the Respondent s entitling them to sue. 12. It is contended on behalf of the Appellants that the Army Welfare Organisation has not called upon the Appellants to deliver possession to them. In fact they have directed them to take permission of the Society of the Co-operative Society where the suit premises is situated for transfer of the membership from the name of the first appellant to that of the Respondent . When Organisation itself allows the Appellants to reside in the premises and concedes the transfer to their names, no fraud can be stated to have been made out. 13. When Organisation itself allows the Appellants to reside in the premises and concedes the transfer to their names, no fraud can be stated to have been made out. 13. It may be mentioned that the parties were informed that though the Appellants could not be transferred the membership immediately after the agreement was entered into by the parties and they made their application for such transfer, it could be done after a period of 10 years. It, therefore, shows and lock- in period during which the flat could not be transferred as the Officers were allotted the quarter s in their capacity as such. The RespondentNo.1 as a retired Army Officer is imputed knowledge about the restriction against transfer. Despite such restriction Respondent No.1 proceeded to transfer his flat for consideration during such period. 14. If Respondent No.1 firmly believed in transferring the flat only to recognised members, he should have mentioned that requirement as the condition precedent to the agreement entered into by him. It was then incumbent upon him not to accept a large part of the consideration and to put the Appellants in possession of the flat agreed to be sold to them before that condition was satisfied. That having not been done, and the trans action having been completed for valuable consideration, most of it received by Respondent No.1, it does not lie upon him to challenge it on the ground that the flat should be transferred only to registered members or was only for Army Officers. 15. The Respondent No.1 has appeared in person and has relied upon the bye laws of Army Welfare Co-operative Housing Society Limited where the suit property is situated. These bye laws are not a part of the record. He contends that nevertheless they must be looked into by the Appellate Court to do complete justice to the parties. He has relied upon clause 17 which lays down the eligibility of the members of the Society. These are stated to be servicemen, Ex- service men, their widows etc. who are competent to contract and who desire to settle down in that society without owning another house, plot or flat themselves or by their family and who give requisite undertaking in that behalf. These are stated to be servicemen, Ex- service men, their widows etc. who are competent to contract and who desire to settle down in that society without owning another house, plot or flat themselves or by their family and who give requisite undertaking in that behalf. The Respondent No.1 has contended that the Appellants do not fit the eligibility criteria despite their representation to him, which he believed and therefore, they could not be members for the Society and could not get his flat transferred to their names. The subtle aspect that the Respondent No.1 has missed is that the bye laws constitute a contract between the member and the Society. It can therefore, be enforced only by the Society. If Respondent No.1 seeks to enforce the strict requirement of the eligibility criteria, he should have verified the representations made by the Appellants and enter into any transaction for transfer of the flat after satisfying himself about the proof of their eligibility in view of the aforesaid embargo upon himself. He failed to do so. He later acquired knowledge by the letter dated 8th June, 1990 that the permission for sale which he had sought was refused. The refusal does not mean the non eligibility of the Appellants. It is not even a refusal adinfinitum. The letter shows that the permission for sale could not be granted at that stage, but it could be granted after 10 years from the date of taking over the dwelling unit by the Respondent No.1. Hence, his case that the transaction became frustrated must be rejected on the basis of the said letter. Only Respondent No.1 was to blame for transferring the unit before time and during the 10 years lock- in period. 16. In the case of Shri krishan Vs. The Kurukshet ra University reported in AIR 1976 SC 376 it has been held that when a person upon whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It is neither a case of suggestio falsi, or suppressio veri. A candidate who was to appear for examination gave a written undertaking in a letter to the University to file a permission of his Superior Officers. It is neither a case of suggestio falsi, or suppressio veri. A candidate who was to appear for examination gave a written undertaking in a letter to the University to file a permission of his Superior Officers. It was held that if the University authorities acquiesced in the infirmities which the admission form contained and allowed the candidate to appear in the Examination, then by force of the University Statute the University had no power to withdraw the candidature of the candidate. In this case also if the Respondent No.1 handed over possession to the Appellants for consideration relying upon their representation, he himself cannot dislodge his own document. 17. Reliance has been placed by the Respondent as well as by the learned trial Judge upon clause 9 of the agreement between the parties, which runs as under :- “ Clause (9) : That in case the Society or the “Army Welfare Housing Organisation” does not transfer the said dwelling unit and five shares of Rs.50 / - each of the Society in the name and in favour of the purchasers within six months from the date of this agreement, the Vendor shall be liable and bound to refund the said amount of Rs.2,98,000 / - (Rupees Two lacs ninety eight thousand) only with interest at the rate of 6% per annum as stated in this agreement and also a further sum of Rs.1,02,000 / - (Rupees One lacs two Thousand) only as liquidated damages. ” (Uunderlining supplied) 18. Under this clause the Respondent No.1 would be liable to refund the amount of consideration Rs.2,98,000 / - received by him from the Appellants along with liquidated damages if the Appellants failed to get the flat transferred to their name either by the Society or by the Army Welfare Organisation. The clause is therefore, a default clause in favour of the Appellants. The Respondent No.1 who is the Vendor surprisingly relies upon the clause laying down his liability upon the contingency mentioned therein. There is no agreement between the parties that the Respondent s would be entitled to any declaration or recovery of possession upon the same contingency. The reliance upon the said clause by the Respondent s as well as the interpretation and effect by the learned trial Judge is completed misplaced. There is no agreement between the parties that the Respondent s would be entitled to any declaration or recovery of possession upon the same contingency. The reliance upon the said clause by the Respondent s as well as the interpretation and effect by the learned trial Judge is completed misplaced. The clause does not give any cause of action to the Respondent s to sue for declaration or recovery of possession. 19. The Respondent No.1, who appeared in person, argued the question of limitation on facts as well as the aspect of the fraud stated to have been perpetrated upon him. He also submitted his written argument s under the Contract Act as well as the Transfer of Property Act. His argument s on facts have been considered. 20. The Respondent No.1 has relied upon the Judgment in the case of Sita Ram Vs. Radha Bai, AIR, 1968 SC 534 in which an illegal agreement at the instance of the person who is himself a party to an illegality or fraud is held to be enforcible when illegal purpose has not been substantially carried out in effect and the Plaintiff does not rely on the illegality. This judgment is passed on the Doctrine of severebility of Contracts which does not apply to this case. It is not even contended that the Respondent No.1 was the party to the illegality. In fact the Respondent No.1 has not been at fault and hence, the Appellants have not invoked clause 9 of the agreement between the parties calling upon the Respondent No.1 to refund the consideration paid by them. 21. It is also contended by the Respondent No.1 that the agreement became impossible of performance and consequently the contract became frustrated under Section 56 of the Indian Contract Act when the Appellant's application for obtaining member ship for the Army Officers Units came to be refused. In fact the letter of May, 1998 does not show the refusal. It allows the Appellants to move the Society for transfer of membership. The contract therefore cannot be frustrated. The Respondent No.1 has relied on the judgment in the case of Satyabrata Ghosh Vs. Mugneeram Bangar and Co. In fact the letter of May, 1998 does not show the refusal. It allows the Appellants to move the Society for transfer of membership. The contract therefore cannot be frustrated. The Respondent No.1 has relied on the judgment in the case of Satyabrata Ghosh Vs. Mugneeram Bangar and Co. reported in AIR 1984, SC 44 which does not apply since it is not impossible to have the membership transferred after the lock in a period of 10 years from the purchase of the Army Officers Quarter s by the Respondent No.1. 22. The lis between the parties is largely decidable upon the aforesaid document s and the interpretation of the agreement admittedly executed by the parties. The interpretation of the aforesaid clause put by the learned trial Judge is liable to be rejected. No other particulars of fraud are stated to have been set out and given by the Respondent s as the Plaintiffs. The Respondent s have not been seen to be deceived even if the Appellants failed to obtain membership in their names. Consequently decreeing the suit in part for granting the relief of declaration and recovery of possession to the Plaintiffs upon return of the sale consideration is seen to be incorrect and improper. The Respondent s as the Plaintiffs could only have been entitled to the alternative claim prayed by them in the Suit under prayer clause ( c ) for return of balance consideration of Rs.25,000 / - had the suit been filed within the period of limitation. The Respondent s would not be entitled to any interest on any such amount for the 10 years period that they allowed to lapse prior to maintaining their action in law. The Respondent s would also not be entitled to any expenses of the transaction under which they received almost the entire consideration on execution itself. However, since the suit has been long delayed and is seen to be barred by law of limitation, even the alternative remedy fails. Consequently the judgment and order dated 4th December, 2002 of the learned VIIIth Joint Civil Judge (S.D.) Pune partly decreeing Respondent's suit is set aside. 23. The Appeal is allowed and consequently the Suit is dismissed as having been barred by the law of limitation as well as upon the Plaintiff's failure to prove any fraud by which they were deceived. 23. The Appeal is allowed and consequently the Suit is dismissed as having been barred by the law of limitation as well as upon the Plaintiff's failure to prove any fraud by which they were deceived. However, in the circumstances there shall be no order as to costs.