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2008 DIGILAW 744 (DEL)

S. KULDIP SINGH v. H. K. L. CHAUDHARY (SINCE DECEASED) THROUGH HIS L. RS.

2008-08-06

REKHA SHARMA

body2008
JUDGMENT Rekha Sharma, J.-This appeal is directed against the judgment of Additional District Judge dated March 9,2007 affirming the judgment and decree of the Civil Judge dated December 24, 2004 who had dismissed the suit of the plaintiff for declaration and specific performance of Agreements dated January 17, 1983 and March 18, 1983. 2. The appellant was a tenant in the premises bearing No. 1585/17, New No. U-l, Naveen Shahdara, Delhi (hereinafter referred to as the suit property) on a rent of Rs. 32/- per month. On January 17, 1983, the landlady Smt. Banaras Kaur entered into an Agreement with the appellant to sell the suit property for a total consideration of Rs. 66,000/- out of which she received Rs. 5,000/- as earnest money. Thereafter, on March 18, 1983, she entered into another Agreement with the appellant with respect to the same property. The said Agreement contained a stipulation that before the execution of the actual sale deed by the parties, the landlady Smt. Banaras Kaur would obtain a No Objection Certificate from the Municipal Corporation of Delhi to the effect that the previous house tax had been paid. It also contained a stipulation that if the landlady failed to obtain the No Objection Certificate within 9 months from the date of the Agreement, the appellant could get the sale executed through a decree of the Court. Few months after the Agreement, on September 19, 1983, the landlady expired. 3. It so happened that on January 14, 1988, respondent No.1 Shri H.K.L. Chaudhary now represented through his legal heirs filed an eviction petition against the appellant under Section 14(1)(a) of the Delhi Rent Control Act claiming himself to be the owner of the suit property on the ground that he had purchased the same from the legal heirs of Banaras Kaur on March 6, 1987 for a consideration of Rs. 35,000/-. On coming to know of the sale deed allegedly executed by the legal heirs of Smt. Banaras Kaur in favour of Shri H.KL. Chaudhary, the appellant filed a suit for declaration and for specific performance of Agreements dated January 17, 1983 and March 18, 1983. 4. The question which arose for consideration before the trial Court as well as before the first Appellate Court was whether the suit filed by the appellant was within limitation. Both the Courts have held the suit to be barred by time. 4. The question which arose for consideration before the trial Court as well as before the first Appellate Court was whether the suit filed by the appellant was within limitation. Both the Courts have held the suit to be barred by time. Aggrieved by the finding, the present appeal has been preferred. 5. It is not in dispute that the limitation for filing a suit for specific performance is covered by Article 54 of the Limitation Act, 1963. The said Article reads as under: Description of suitperiod of limitationTime from which period begins to run For specific perfor-Three yearsThe date fixed for the mance of a contract performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. 6. The appellant had sought specific performance of the Agreements dated January 17, 1983 and March 18, 1983. The suit was filed on August 22, 1989. Going by the period of limitation as provided in Article 54 of the. Limitation Act, the maximum period by which the appellant ought to have filed the suit was March 18,1986 for that is the date when three years would have expired from the second Agreement to Sell dated March 18, 1983. However, according to the appellant, the period of limitation did not expire on March 18, 1986. It was contended before the two Courts below as well as before this Court that in the Agreement dated March 18, 1983, it was agreed upon between the parties that before the execution of the actual sale deed, the landlady was to obtain No Objection Certificate from the MCD indicating that the previous house tax had been paid. It was alleged that she failed to fulfil this condition inasmuch as no such certificate was obtained and, therefore, she committed breach of the agreement and the breach continued till such time she obtained the No Objection Certificate. Accordingly, it was argued that because of the continuous breach of the Agreement by the landlady, the limitation of three years could not have begun to run against the appellant till the landlady performed her part of the Agreement by obtaining No Objection Certificate. Accordingly, it was argued that because of the continuous breach of the Agreement by the landlady, the limitation of three years could not have begun to run against the appellant till the landlady performed her part of the Agreement by obtaining No Objection Certificate. The said submission on behalf of the appellant was countered from the side of the respondent by referring to that part of the Agreement dated March 18, 1983 wherein it was recorded that in case the landlady failed to obtain the No Objection Certificate within 9 months of the date of the Agreement, the appellant was free to get the sale executed through a decree of the Court. The said period of nine months expired on December 18, 1983. Therefore, the outer limit by which the appellant ought to have filed the suit for specific performance was December 18,1986. He actually filed the same on August 22, 1989. 7. It was not disputed by the appellant that there was stipulation in the Agreement dated March 18, 1983 that if Banaras Kaur failed to obtain the No Objection Certificate within 9 months of the date of the Agreement, the appellant was free to get the sale executed through the Court. There was thus was an option available with the appellant which he failed to exercise. It was, therefore, not open for the appellant to contend that Banaras Kaur continued to be in breach of the Agreement. The suit was clearly barred by limitation. 8. The appeal has no merit. The same is dismissed. Appeal dismissed.