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Andhra High Court · body

2010 DIGILAW 253 (AP)

G. Ramanamma v. P. Chiranjeevi Rao

2010-03-31

V.AFZULPURKAR

body2010
JUDGMENT : 1. This appeal is by the plaintiff against the dismissal of her suit, for specific performance of agreement of sale dated 09.09.1989, being O.S.No.35 of 1995 by judgment and decree dated 28.09.2000. 2. Since it is a plaintiff’s appeal the parties herein are referred to as they are arrayed in the suit. The material facts are as follows: 3. Under Ex.A1 dated 09.08.1989 the defendant agreed to sell the schedule property, which is approximately 100 gadis, [1 Gadi = 8 sq. yards and thereby the approximate area covered under Ex.A1 agreement is about 800 sq. yards] to the plaintiff at Rs.1,500/- per gadi. The English translation of the original agreement in Telugu, which is certified by both the learned counsel, as correct, is considered during the hearing of this appeal. The essential ingredients of the agreement are as follows. 4. As per the recitals of the said agreement, the said land belonging to the ancestors of the defendant, which is in his absolute possession and enjoyment, was agreed to be sold at Rs.1,500/- per gadi and Rs.20,000/- was received as advance on the date of agreement. The defendant, further, agreed to execute the registered sale deed or sale deeds in favour of plaintiff or any of her nominees on full payment of balance price in two months after getting the land measured at the expenses of the defendant and in presence of the plaintiff, as desired by the plaintiff and the possession shall be handed over to the plaintiff either in a single transaction or more transactions. If the balance amount is not paid in time, the plaintiff was required to pay interest at Rs.1.50 ps. and then obtain the deed or deeds from the defendant. Then on 22.09.1989 the plaintiff made further payment of Rs.22,500/- through Chilakapati Venkayamma and the defendant was requested to execute a registered sale deed in favour of said Venkayamma for 15 gadies. On 05.10.89 the plaintiff made further part payment of Rs.27,000/- through Sri. Perugu Brahmananda Rao whereupon the defendant executed another sale deed covering 18 gadis in favour of Brahmananda Rao. The said payment dated 22.09.1989 is recorded on the reverse of Ex.A1, which is separately endorsed and marked as Ex.A4 and further payment dated 05.10.1989 is separately endorsed and marked as Ex.A5. Perugu Brahmananda Rao whereupon the defendant executed another sale deed covering 18 gadis in favour of Brahmananda Rao. The said payment dated 22.09.1989 is recorded on the reverse of Ex.A1, which is separately endorsed and marked as Ex.A4 and further payment dated 05.10.1989 is separately endorsed and marked as Ex.A5. Thus, as against Rs.94,500/- paid by the plaintiff till the date of plaint, the defendant had executed sale deeds to the extent of 33 gadis and according to the plaintiff, the balance area of 67 gadis remained to be conveyed by the defendant. 5. The plaintiff alleges in the plaint that she demanded the defendant to execute a sale deed with respect to 67 gadis but the defendant evaded. It is alleged that the defendant consented the plaintiff to occupy and use the portion of remaining land stating that at the time of registration measurement will be taken and entire site of 67 gadis as per the agreement will be given possession of. Meanwhile alleging that the plaintiff has encroached on a strip of site on the Southern extreme end of the balance land, the defendant filed O.S.No.43 of 1991 before the District Munsif Court, Ongole against the plaintiff. The plaint in the said suit is marked as Ex.A14 and the said suit was for recovery of possession of a strip of site of about 5’ width on the Southern side. The plaintiff, further, alleged that while making endorsements Exs.A4 and A5 with respect to 33 gadis conveyed thereunder the defendant fraudulently mentioned the extent of the land under the schedule as 77½ gadis and 72½ gadis respectively, taking advantage of the illiteracy and absence of the plaintiff at the time of the endorsements and registration of said sale deeds. The plaintiff alleged that the said endorsements and the reduced area of site from 100 gadis to 77½ gadis and further to 72½ gadis were made by the defendant in Exs.A4 and A5 with a view to reduce the land agreed to be conveyed to the plaintiff. Thereafter, there was exchange of notices between the parties commencing with notice Ex.A6 dated 31.07.1991 issued by the defendant’s counsel to the plaintiff alleging that without paying the balance amount the plaintiff has encroached and trespassed on to the defendant’s site and began constructions whereupon the defendant was constrained to file O.S.No.43 of 1991 and obtain temporary injunction. Thereafter, there was exchange of notices between the parties commencing with notice Ex.A6 dated 31.07.1991 issued by the defendant’s counsel to the plaintiff alleging that without paying the balance amount the plaintiff has encroached and trespassed on to the defendant’s site and began constructions whereupon the defendant was constrained to file O.S.No.43 of 1991 and obtain temporary injunction. By the said notice, the plaintiff was called upon to pay for the balance of the site within a week of the receipt of the notice and to stop construction work till the balance is paid and registered sale deed is obtained. 6. The said notice was replied to by the plaintiff under Ex.A7 dated 05.08.1991 stating that the site, which is the subject matter of O.S.No.43 of 1991 is purchased by the plaintiff and she is always ready to pay the balance sale consideration, as she has sufficient money. However, as the defendant did not state as to how much extent is sold and how much is due to pay, the defendant was called upon to state the same to enable the plaintiff to pay the balance amount and obtain a registered sale deed. Under further reply notice Ex.A8 dated 18.03.1992 the defendant alleged that without paying the money, the plaintiff has trespassed and began constructions on the unsold site, which compelled the defendant to file O.S.No.43 of 1991. It was also alleged that this clearly shows the intention of the plaintiff in not coming forward for registration so as to cover up high handed acts of encroachment and the extent of the site is already mentioned in the two registered sale deeds executed for 33 gadies, which is within the knowledge of the plaintiff and as such, the defendant is prepared to execute the registered sale deed for the balance extent including the extent covered by the registered sale deeds, referred to above, after taking due measurements at the time of registration. The plaintiff was, therefore, called upon to pay the balance amount and take registered sale deed within 15 days failing which the agreement would stand cancelled and advance of Rs.20,000/- will be forfeited. This notice was again replied to by the plaintiff under Ex.A9 dated 05.04.1992 mentioning that the plaintiff is ever ready with the balance of sale consideration to obtain registered sale deed but the site is not measured. This notice was again replied to by the plaintiff under Ex.A9 dated 05.04.1992 mentioning that the plaintiff is ever ready with the balance of sale consideration to obtain registered sale deed but the site is not measured. The plaintiff denied that she is an encroacher and that defendant himself put the plaintiff in possession and the plaintiff constructed a house. The defendant was, therefore, called upon to obtain measurements instead of playing hide and seek and fix the boundaries for the rest of the land leaving the way for same width for the road on the Northern side. 7. After exchange of notices, the plaintiff filed the present suit for specific performance being O.S.No.35 of 1995 on 13.04.1995. The plaint allegations in substance represent the events, as above, and by reiterating that the plaintiff is ever ready and willing to perform her part of the contract and that the defendant is evading to perform his part of the contract even after admitting his liability to execute the sale deed as per the agreement, the present suit for specific performance was filed for balance 67 gadis calling upon the defendant to execute the sale deed for the said balance land by receiving the sale consideration and for possession etc. 8. The said suit was resisted by the defendant. In the written statement, the defendant admitted Ex.A1 agreement and the receipt of the consideration but disputed that the balance remaining land is not as claimed by the plaintiff and stated that the balance land has been correctly noted in the endorsements Exs.A4 and A5 while registering two sale deeds in favour of the nominees of the plaintiff. It was also asserted that at that time the land was measured and the actual extent arrived at as mentioned in Ex.A4, whereas Ex.A1 mentions the approximate extent of 100 gadies. It was asserted that the measurement of the entire site was taken with the consent and in the presence of the plaintiff and accordingly, after excluding the land already registered only to the extent of 33 gadis, the balance of 44½ gadis are left out, which the defendant is always ready to execute a sale deed in respect thereof, but the plaintiff is not coming forward to pay the balance amount. The defendant also alleged that the plaintiff has high-handedly and illegally occupied part of the balance land and started making unauthorized constructions and had encroached all along South to the width of 5’ into the defendant’s site and raised a compound wall of 3’ height, which gave rise to the defendant filing O.S.No.43 of 1991. The defendant, therefore, claimed that the plaintiff is guilty of wrongful encroachment and illegal construction, is a trespasser and suppressing these facts, the suit for specific performance is filed. The defendant also stated that he would file a separate suit for recovery of balance extent of encroached land against the plaintiff. The suit filed by the plaintiff was, therefore, resisted on the ground that it is not maintainable as it lacks material particulars, no cause of action subsists nor the suit is within limitation and the plaintiff is not entitled to specific performance both on facts as well as on law. It was, further, alleged that Ex.A1 agreement stood cancelled and in view of the conduct of the plaintiff, he is liable to pay profits for the unlawful possession of the site of the defendant from 1991 onwards. 9. On the basis of the above pleadings, the trial Court framed the following issues and additional issues: 1. Whether the plaintiff is entitled for specific performance of agreement to the extent of 67 gadis as prayed for? 2. Whether the plaintiff is entitled for delivery of possession of the said 67 gadis of vacant site? 3. To what relief? ADDITIONAL ISSUES: 1. Whether the plaintiff is entitled for the value to the extent of site deficit of 100 gadis as per value as on the date of the decree for the suit? 2. Whether the suit is barred by limitation? 3. To what relief? 10. On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A16 were marked while the defendant examined himself as D.W.1 and marked Exs.B1 to B12. While P.W.1 is the plaintiff herself, P.W.2 is the broker in the real estate business at whose instance the transaction in question was entered into and P.W.3 is the purchaser under Ex.A5 endorsement. 11. The trial Court found on issue Nos.1 and 2 that the plaintiff is not entitled to specific performance as prayed for and consequently, not entitled to possession. 11. The trial Court found on issue Nos.1 and 2 that the plaintiff is not entitled to specific performance as prayed for and consequently, not entitled to possession. On additional issue No.1 the plaintiff was found not entitled to the value of the extent of the site deficit of 100 gadis as per the value on the date of the decree and on additional issue No.2 it was held that the suit was barred by limitation. Eventually, the suit was dismissed and the defendant was directed to pay back Rs.45,000/- to the plaintiff within three months. The said judgment and decree is in appeal at the instance of the plaintiff. 12. Sri V. Parabrahma Sastry, learned counsel for the appellant/plaintiff has made elaborate submissions contending as follows: (a) The finding of the trial Court that the suit is barred by limitation is incorrect and contrary to second part of Article 54 of the Limitation Act, 1963 (for short ‘the Act’). He submits that the limitation for suit would commence from the event fixed under Ex.A1 agreement and a harmonious reading of Ex.A1 would show that the said event is with reference to measurement of the site in the presence of the plaintiff and also fixation of boundaries. Since the defendant has never done that, the event has not occurred for the purpose of commencement of limitation and as such, there is no question of suit being barred by limitation. (b) He also submitted that Ex.A1 agreement was partly performed and the performance continued when the defendant executed two sale deeds referable to endorsements Exs.A4 and A5, which include delivering possession of the property to the said purchasers. Thus, the contract having specifically and partly performed on both sides in respect of the part of the property, the possession of the plaintiff is perfected under Section 53-A of the Transfer of Property Act. He also submitted that the action of the defendant in unilaterally canceling the agreement is neither legal nor sustainable and particularly, when part of the property is registered and price fully recovered and the plaintiff has built a house on the part of the property with the consent of the defendant. He also submitted that the action of the defendant in unilaterally canceling the agreement is neither legal nor sustainable and particularly, when part of the property is registered and price fully recovered and the plaintiff has built a house on the part of the property with the consent of the defendant. To reinforce his contention, he has relied upon a decision of the Supreme Court in S. BRAHMANAND v. K. R. MUTHUGOPAL AIR 2006 SC 40 that the expression ‘date’ used in first part of Article 54 of the Act is not suggestive of any calendar date but is referable to an event ascertainable with reference to the contract between the parties and the limitation period begins to run from such date. He also cited a decision of the Supreme Court in RAMZAN v. SMT. HUSSAINI AIR 1990 SC 529 for the same proposition, as above, apart from another decision of the Supreme Court in SHRIMANT SHAMRAO SURYAVANSHI v. PRALHAD BHAIROBA SURVYAVANSHI AIR 2002 SC 960 for the proposition that the transferee, who obtained possession of the property in part performance of the contract can continue in possession irrespective of period of limitation by virtue of Section 53-A of Transfer of Property Act. He also relied upon another decision of the Supreme Court in SMT. SARASWATHAMMA v. H. SHARAD SHRIKHANDE AIR 2005 KARNATAKA 292 for the proposition that date fixed for performance under first part of Article 54 of the Act has to be understood in the context and the mutual obligation and agreement between the parties. (c) Learned counsel has drawn attention of the Court to the oral and documentary evidence on record, particularly, the exchange of notices and contended that even as per Ex.A8 notice of the defendant, the defendant himself had called upon the plaintiff to obtain a registered sale deed for the balance extent of land after taking due measurements at the time of registration. He, therefore, submits that even on 18.03.1992 when the said notice was issued, the defendant was aware that measurement of the site having not been taken but would be taken at the time of registration. He, therefore, submits that even on 18.03.1992 when the said notice was issued, the defendant was aware that measurement of the site having not been taken but would be taken at the time of registration. He has contented that Ex.A1 mentions the approximate extent and in order to enable the plaintiff to seek registration with respect to balance extent, the measurement of the site in the presence of the plaintiff had to be taken as without the measurement the plaintiff cannot be expected to know the balance extent available and the payment he had to make with respect thereto on the basis of the rate agreed to under Ex.A1. It is for that reason that the plaintiff had specifically called upon the defendant under Ex.A7 notice dated 05.08.1991 requiring the defendant to inform the plaintiff, as to how much balance is due and how much extent is now to be sold. He submits that throughout the plaintiff has expressly stated that he is ever ready and willing to take the balance extent of land and shown readiness and willingness to pay for the balance 67 gadis and suit is also for the balance extent of 100 gadis agreed to be sold, after excluding 33 gadis already conveyed by the defendant. Learned counsel, therefore, states that the trial Court had not appreciated that the primary obligation of the defendant was to have measurement of the land taken and based upon different extents mentioned by the defendant in Exs.A4 and A5 claiming to be the balance left over land, it is evident that the plaintiff himself is not sure of the balance extent available, the plaintiff cannot be expected to perform his part of the contract and consequently, the breach of contract is on the part of the defendant rather than that of the plaintiff as understood by the trial Court. (d) He also relied upon the oral evidence and consistent stand of the plaintiff as P.W.1 that at no point of time the measurement was taken by the defendant with respect to the land covered under Ex.A1. However, P.W.1 denied that she was neither present at the time of endorsements Exs.A4 and A5 nor she was present when the measurements were said to have been taken. However, P.W.1 denied that she was neither present at the time of endorsements Exs.A4 and A5 nor she was present when the measurements were said to have been taken. He pointed out that P.W.1 is an illiterate lady and in her absence if the defendant has made endorsements mentioning the extent of the balance land, the plaintiff is not bound by the said endorsements. In support of the said evidence, he relied upon the evidence of P.W.2, broker, who categorically stated that no measurement took place at the time of agreement Ex.A1 and further statement of the said witness is that at the time of Exs.A4 and A5 only site covered viz. 15 gadis and 18 gadis was measured and plaintiff was not present at the time of payment under Ex.A4. P.W.3, who is purchaser under Ex.A5, also stated in his evidence that the plaintiff did not come to registration office when the site of 18 gadis was registered and that his site, which he purchased, alone was measured. He stated in his cross-examination that at the time of measurement of his 18 gadis, the property was assessed as 72½ gadis. The cross-examination of the defendant as D.W.1 is also relied upon that for the first time he got the suit property measured was on 22.09.1989 and by that time, the property sold under Exs.A4, A5 and A1 was under his possession. He was unable to say as to who measured the property at the time of selling the portions of Exs.A4 and A5. Learned counsel, therefore, submitted that there is no evidence of measurement of site at any point of time in the presence of the plaintiff and consequently, the extent of balance land mentioned by the defendant in Exs.A4 and A5 cannot bind the plaintiff, as evidently, only the lands covered under Exs.A4 and A5 were measured and boundaries were fixed without measuring the balance extent. He, therefore, submits that the finding reached by the trial Court are contrary to the said evidence and the trial Court has misread the legal notice issued by the plaintiff where it is specifically asserted that the plaintiff is always ready and willing. He, therefore, submits that the finding reached by the trial Court are contrary to the said evidence and the trial Court has misread the legal notice issued by the plaintiff where it is specifically asserted that the plaintiff is always ready and willing. He, further, submits that the capacity of the plaintiff to pay the balance amount was never doubted and he submits that the cause of action arose only when the defendant deposed as P.W.1 in O.S.No.43 of 1991 that he would only execute the sale deed for the balance extent of about 45½ gadis. 13. Per contra, the learned counsel for the respondent contends that the plaintiff is guilty of suppression of material facts, has made allegations of fraud against the defendant and failed to substantiate the same, has made false claim of delivery of possession by the defendant so far as the balance land is concerned and is clearly a trespasser and guilty of encroachment on the defendant’s land without authority. He submits that in the plaint in O.S.No.43 of 1991 marked as Ex.A14 itself the defendant had mentioned the extent available at the site but the plaintiff has slept over the matter without approaching the Court in time. His notice Ex.A6 dated 31.07.1991 is five months after Ex.A14 plaint dated 13.02.1991 and the very conduct of the plaintiff coupled with the unsubstantiated pleas raised by the plaintiff in the suit show that she is not entitled to the equitable relief of specific performance. 14. On the question of limitation, the learned counsel submits that the plaintiff has failed to establish the ingredients of first part of Article 54 of the Act inasmuch as Ex.A1 itself fixes two months period for completion of transaction and even otherwise, though Ex.A1 is dated 09.08.1989, the present suit came to be filed only on 13.04.1995. Learned counsel contends that even though the defendant had given notice Ex.A8 dated 18.03.1992 calling upon the plaintiff to pay the balance amount and obtain a registered sale deed within 15 days failing which the agreement will stand cancelled and advance forfeited, the plaintiff has not approached the Court even within three years thereafter. Learned counsel contends that even though the defendant had given notice Ex.A8 dated 18.03.1992 calling upon the plaintiff to pay the balance amount and obtain a registered sale deed within 15 days failing which the agreement will stand cancelled and advance forfeited, the plaintiff has not approached the Court even within three years thereafter. According to the learned counsel, the period of limitation, therefore, starts from the performance fixed under Ex.A1 itself and has relied upon the decisions of the Supreme Court in MANJUNATH ANANDAPPA v. TAMMANASA (2003) 10 SCC 390 and H.P. PYAREJAN v. DASAPPA (2006) 2 SCC 496 . He, further, submits that to the aforesaid notice of defendant under Ex.A8, the plaintiff gave reply under Ex.A9 dated 05.04.1992 but thereafter did not approach the Court up to 13.04.1995, which is completely unexplained delay and in fact, is beyond the period of limitation. 15. Alternatively, the learned counsel states that even if second part of Article 54 of the Act applies, the suit is clearly barred by limitation. Learned counsel relied upon the finding of the trial Court with respect to the aspect of limitation and the aspect of plaintiff’s readiness and willingness and further submits that the conduct of the plaintiff disentitles the plaintiff from claiming equitable relief of specific performance and discretion under Section 20 was rightly not exercised by the trial Court in his favour. He, therefore, submits that this Court in appeal would not interfere with the said discretion exercised by the trial Court. 16. The points that arise for consideration in this appeal are as follows: 1. Whether the finding of the trial Court on additional issue No.2 that the suit is barred by limitation is sustainable? 2. Whether the defendant has committed breach of contract as pleaded by the plaintiff? 3. Whether the finding of the trial Court in declining to exercise discretion in favour of the plaintiff under Section 20 of the Specific Relief Act is justified? 17. Both the learned counsel have made submissions overlapping all these aspects citing decisions supporting each of the points. The finding of facts with reference to the decisions by them is discussed as under. 18. A suit for specific performance is governed by Article 54 of the Limitation Act, which as follows: Description of suits Period of Limitation Time from which period begin to run 54. The finding of facts with reference to the decisions by them is discussed as under. 18. A suit for specific performance is governed by Article 54 of the Limitation Act, which as follows: Description of suits Period of Limitation Time from which period begin to run 54. For specific performance of a contract Three years The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused. In a given case if the parties stipulate a date for performance first part of Article 54 of the Act would apply and if no date is fixed, the refusal of the defendant to perform would give rise to cause of action and second part of Article 54 of the Act would apply. In a case falling under second part of Article 54, the plaintiff will have to establish that he had notice of refusal of such performance within three years of the suit. In the present case, the suit has been filed on 13.04.1995. If fist part of Article 54 of the Act applies, the plaintiff has to establish that he is well within 3 years of the date fixed for performance and if second part of Article 54 of the Act applies then the plaintiff will have to establish that he had notice of refusal to perform, which is within three years of the suit. 19. Learned counsel for the appellant/plaintiff contended that the present suit is governed by first part of Article 54 of the Act and that the word ‘date’ for performance mentioned in the aforesaid Article does not mean the calendar date but occurrence of an event after which performance is contemplated. Learned counsel relied upon the decision of Supreme Court in RAMZAN’s case (2 supra) where the word ‘date’ fixed for performance under Article 54 was interpreted to mean as follows: “…The question is whether a date was 'fixed' for the performance of the agreement and in our view the answer is in the affirmative. It is true that a particular date from the calendar was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. It is true that a particular date from the calendar was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, immediately after the redemption, filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of S. 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar v. B. M. Shamanna Gounda, ( AIR 1950 Mad 820 ) expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. The Brighton Club and Norfolk Hotel Company [(1875) 10 QB 371] relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at Common Law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day. which when the goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiff's demand on the ground that the price did not become payable by the written instrument at a certain time. which when the goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiff's demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 113 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. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part.” 20. Learned counsel states that the event, which is mentioned under Ex.A1, upon which the performance of contract depended, is the event of measurement of the land, as only thereafter that the plaintiff would know the balance extent available and the balance amount payable. Learned counsel, therefore, submits that as long as there is no measurement of the land, as contemplated under Ex.A1, the limitation, in fact, does not begin to run. He, therefore, submits that the finding of the trial Court that the suit is barred by limitation is clearly unsustainable. Reliance is also placed by the learned counsel on a Division Bench judgment of the Karnataka High Court in SARASWATHAMMA’s case (4 supra), which also reiterates the same principle. He, therefore, submits that the finding of the trial Court that the suit is barred by limitation is clearly unsustainable. Reliance is also placed by the learned counsel on a Division Bench judgment of the Karnataka High Court in SARASWATHAMMA’s case (4 supra), which also reiterates the same principle. In that case, specific performance contemplated was the sale of a constructed plot and therefore, until the construction is completed in all respects, as agreed, the promisor cannot be heard to say that the delay and default committed by him set the limitation to run for the purpose of the vendee to initiate the suit for specific performance. Another decision of the Supreme Court in SHRIMANT SHAMRAO SURYAVANSHI’s case (3 supra) is also relied upon for the purpose of the proposition that Limitation Act does not extinguish a defence, but only bars the remedy and even in case where period of limitation bars a suit for specific performance, it is open to a defendant in a suit for recovery of possession brought by a transferor to take plea in defence of part performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action. 21. The aforesaid decision, I am afraid, is clearly besides the point, inasmuch as this case is not a suit for possession by the transferee nor the question of plaintiff fulfilling the ingredients of Section 53-A of the Transfer of Property Act arises in the case either on pleading or on evidence. Further, the said decision proceeds to discuss and hold the right of the transferee to protect his possession even if he could not file a suit for specific performance within limitation. The said decision, therefore, absolutely has no application. Therefore, contentions of appellant as above are not necessary to be adjudicated in this appeal and are kept open. 22. Alternatively, the learned counsel also argued that even if it is assumed that second part of Article 54 of the Act applies there is no refusal on the part of the defendant within three years of which the suit is filed and in support of that proposition he relied upon the decision of the learned single Judge of this Court in GOPARAJU VENKATA BHARATA RAO v. NAGULA RAMAKOTAYYA AIR 2001 AP 425 . In Para 26 it was held by this Court as under. “26. In Para 26 it was held by this Court as under. “26. In the above circumstances, the first contention of the learned counsel for the appellants with regard to the delay and lapses on the part of the appellant cannot be countenanced particularly in view of the fact that the plaintiff made a request demanding the registration from the defendants 1 and 2 and the said defendants postponed the same on the ground of pending litigation. That does not in my view amount to refusal as contemplated under Article 54 of the Limitation Act, even assuming that the suit is filed in the year 1983 it is within time in the absence of any time framed for its performance…” 23. Learned counsel for the appellant further contended that time is not the essence of Ex.A1 agreement; even though the agreement states that within two months the transaction has to be completed. Learned counsel relies upon the circumstance that the defendant himself never treated the said time fixed as mandatory and he himself executed sale deeds with respect to part of the property covered about 33 gadis vide endorsements Exs.A4 and A5 recorded on Ex.A1 itself. Thus, though the agreement is dated 09.08.1989 the endorsements Exs.A4 and A5 are dated 22.02.1989 and 05.10.1989 coupled with the fact that the defendant himself gave notice calling upon the plaintiff to perform the contract by stipulating 15 days as is evident from Ex.A8 notice dated 18.03.1992. Learned counsel, therefore, relies upon the decision of this Court in MOHAMMED IBRAHIM v. MOHAMMED ABDUL RAZZAK AIR 2007 AP 294 to contend that merely because there is a mention in the agreement making time as essence of the contract it does not mean that such time is made essence of the contract. The relevant portion is extracted as under: “14.The Court has to decide the same while taking into consideration of intention of parties in making such stipulation, their conduct and surrounding circumstances. Considering the fact that the very defendant has extended the period and neither of the parties issued notice within the time stipulated in Ex.B1 that time was essence. In fact, after expiry of the time the defendant himself had extended the time… Therefore, we are of the opinion that the trial Court was correct in stating that the time stipulated was not the essence of the contract’. In fact, after expiry of the time the defendant himself had extended the time… Therefore, we are of the opinion that the trial Court was correct in stating that the time stipulated was not the essence of the contract’. While the legal position, as stated above, is well settled, reference can as well be made to the Constitution Bench judgment of the Supreme Court in CHAND RANI v. KAMAL RANI AIR 1993 SC 1742 . On the facts and circumstances of the present case, as rightly contended by the learned counsel for the appellant/plaintiff, it is to be held that time was not essence of the contract as is evident from the conduct of the defendant alone, as pointed out by the learned counsel for the plaintiff. 24. Learned counsel also relied upon a decision of the Supreme Court in VALIAMMAL RANGARAO RAMACHAR v. MUTHUKUMARASWAMY GOUNDER (1982) 3 SCC 508 for the proposition that the conduct of the vendor is very relevant in a suit for specific performance and such conduct of the vendor, which is aimed at defeating the claim for specific performance has to be taken into consideration. 25. Learned counsel for the defendant, on the other hand, contended that first part of Article 54 of the Act applies to the facts of this case and irrespective of time for performance being fixed or extended, limitation under the aforesaid Article would continue to run. He submitted that two months time was fixed under Ex.A1 for completion of transaction and it was up to the plaintiff to act within that time. Alternatively, he also submitted that, if for any reason, second part of Article 54 of the Act is held to apply, the refusal by the defendant was made known to the plaintiff as early as under Ex.A14 plaint dated 13.02.1991. The said suit O.S.No.43 of 1991 was filed by the defendant complaining of encroachment by the plaintiff of the 5’ wide strip of land and in that suit itself it was made clear that the balance land available is not 67 gadis as per measurement and that though the defendant is ready the plaintiff is avoiding the obligation to pay the balance amount. He, further, stated that under Ex.A8 notice dated 18.03.1992 15 days time was once again granted to the plaintiff, which was not availed and the plaintiff issued reply notice Ex.A9 dated 05.04.1992. He, further, stated that under Ex.A8 notice dated 18.03.1992 15 days time was once again granted to the plaintiff, which was not availed and the plaintiff issued reply notice Ex.A9 dated 05.04.1992. He, therefore, submitted that even though the plaintiff was aware that under Ex.A8 the defendant had caused cancellation of agreement and forfeiture of advance, no action was taken by the plaintiff after Ex.A9 reply dated 05.04.1992. 26. The present suit eventually was filed on 13.04.1995, which is clearly barred even under second part of Article 54 of the Act. He had laid great stress on the plaint allegations, which stated that the defendant is guilty of fraud in trying to reduce the extent of the balance land. He also pointed out that the plaintiff had taken a stand that the defendant himself consented to the plaintiff occupying the balance extent and build a house and eventually he submits that during the trial plaintiff failed to establish either possession as authorized nor could substantiate the allegations of fraud made against the defendant. He has, therefore, contended that the plaintiff must be held to have come to the Court with unclean hands by making unfounded and false allegations and consequently, not entitled to equitable relief of specific performance. He has relied upon the decision of the Supreme Court in MANJUNATH ANANDAPPA’s case (5 supra) for the proposition that readiness and willingness expected of the plaintiff in a suit for specific performance must be established as readiness and willingness throughout the suit. Paras 27 and 30 are relied upon, which are as follows: “27. The decisions of this Court, therefore, leave no manner of doubt that a plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made by the plaintiff as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16(c) of the Specific Relief Act may be held to have been complied with.” “30. There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on record to show that he had ever asked Defendant 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief.” He also relied upon Para 36 to contend that a Court of appeal should not ordinarily interfere with discretionary exercise of the Court below. 27. Learned counsel also placed reliance upon another decision of the Supreme Court in H.P. PYAREJAN’s case (6 supra) and relied upon Para 13, which is as under: “13. The basic principle behind Section 16(c) read with explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.” He contends that the plaintiff has not shown blemishless conduct as is evident from the facts of the case and as such, he is not entitled to specific performance. 28. Now to the extent of point No.1 with respect to limitation is concerned, the agreement Ex.A1, no doubt, states that the defendant shall execute the registered sale deed or deeds in favour of plaintiff or her nominees on full payment of the balance price in two months hereafter, after getting the land measured at defendant’s expenses and in the presence of the plaintiff as soon as the plaintiff desires and shall hand over the possession either in single or more transactions. This two months period was admittedly not given any importance by both sides, as is evident from the two registered sale deeds of portions of the property covered under Exs.A4 and A5. Further, the defendant’s notice Ex.A8 dated 18.03.1992 itself gives a stipulated further 15 days for the plaintiff to complete the transaction. The intention of the parties, which is evident from their conduct before and after the agreement and the surrounding circumstances clearly establish that time was not the essence of the contract. With regard to the applicability of first part or second part of Article 54 of the Act is concerned, according to the plaintiff the transaction could not be completed unless the measurements are taken of the entire land. There is lot of controversy as to whether the land was measured in the presence of the plaintiff. The defendant, no doubt, mentions in the endorsement Ex.A5 that the balance land is 72½ gadis and in Ex.A4 as 77½ gadis. Ignoring the minor discrepancy, which is explained by the defendant, the evidence of P.W.2 in the chief-examination that Venkayamma (vendee under Ex.A4) was given measured site of 15 gadis but the rest of the site was not measured. But in cross-examination he says that when the property was measured and possession was handed over to Venkayamma, plaintiff’s husband was present. P.W.3 other purchaser under Ex.A5 states that his site was also measured and further says that at the time of measurement of 18 gadis ‘the property was assessed as 72½ gadis and as such my measurement took place’. Both the said witnesses claim that the plaintiff was not present at the time of registration of Exs.A4 and A5. The presence at the time of registration is clearly not very material when the measurement of the land at site before executing and registering the sale deed appears to have been carried out with respect to both the sale deeds and out of the entire land belonging to the defendant two portions of 15 gadis and 18 gadis were conveyed under Exs.A4 and A5 respectively, boundaries of said two portions were fixed and possession with respect to that was delivered to the respective purchasers. It is, therefore, inconceivable that without measuring the entire balance land, two portions are carved out and possession is delivered. It is, therefore, inconceivable that without measuring the entire balance land, two portions are carved out and possession is delivered. The defendant states that 77½ gadis of the total extent covered under Ex.A1 was arrived at in the presence of plaintiff on 22.09.1989 i.e. date of Ex.A4 and therefore offered to convey the balance 44½ gadis to the plaintiff. The plaintiff, however, did not agree, as it would amounts to loss of about 100 gadis. The exchange of notices referred to above, particularly, Ex.A8 by the defendant disputes the plaintiff’s claim under Ex.A7 notice dated 05.08.1991 that due particulars regarding the extent and amount payable by plaintiff are mentioned in the agreement executed by the defendant and the endorsement regarding Exs.A4 and A5 are in the original agreement, which is with the plaintiff. Since the total extent of land is mentioned in Exs.A4 and A5, the defendant disputed the statement of the plaintiff that she is not aware of how much area is available and how much she has to pay. 29. More importantly, Para 2(D) of the plaint mentions that ‘there was no need to measure the site on 22.09.1989 and 05.10.1989 and note measurement in the payment endorsements’ which shows that taking of measurement was not denied in the plaint itself. 30. In the light of the above, it is, therefore, difficult to accept the contention of the learned counsel for the plaintiff that the event of taking measurement did not occur at all and that the event contemplated for the purpose of first part of Article 54 of the Act did not arise. As held above, though the time is held to be not the essence of the contract and time was stipulated by the defendant under Ex.A8 dated 18.03.1992. Whether the said stipulation was unilateral and binding on the plaintiff and whether the action can be founded based on the same, would hardly make a difference for the purpose of running of limitation and commencement of the cause of action for a suit for specific performance. Whether the said stipulation was unilateral and binding on the plaintiff and whether the action can be founded based on the same, would hardly make a difference for the purpose of running of limitation and commencement of the cause of action for a suit for specific performance. Even under first part of Article 54 of the Act the present suit ought to have been filed within three years of Ex.A8 notice dated 18.03.1992, taking that according to the defendant the event contemplated under Ex.A1 was already fulfilled and plaintiff was called upon to discharge her obligation, the suit under first part of Article 54 of the Act, therefore, is clearly barred by limitation. 31. With regard to alternate contention based on second part of Article 54 of the Act, the trial Court held that the suit is not instituted within three years of refusal meaning thereby that the trial Court considered that the second part of Article 54 of the Act applies. 32. The plaintiff contended that the refusal by the defendant was made known to the plaintiff only on 03.01.1995 when the defendant deposed in Ex.A14 suit that he is only willing to execute the sale deed for 45 gadis to the plaintiff and therefore, the suit filed on 13.04.1995 was within time. The trial Court, however, did not accept the said contention and held that even the plaint Ex.A14 itself amounted to the clear refusal by the defendant and suit was not filed within three years. Thus, even assuming that the refusal by the defendant would be relevant for the purpose of second part of Article 54 of the Act, the said refusal merely commences from 18.03.1992 when the defendant issued Ex.A8 notice calling upon the plaintiff to discharge the obligation within 15 days. As stated above, irrespective of the said unilateral fixation of time by the defendant, the plaintiff had due notice that the defendant is prepared to execute the sale deed for balance extent of land based upon the measurement as mentioned in Ex.A4, in spite of said due notice, thereafter, the plaintiff has merely issued Ex.A9 dated 05.04.1992 and then kept quite till 13.04.1995 when the present suit was filed. Even ignoring the finding of the trial Court that there was a refusal by the defendant under Ex.A14 plaint itself, even on the basis of Ex.A8 notice it is evident that the plaintiff had express notice that the defendant is not willing to execute the sale deed for balance 67 gadis as claimed in the suit. Even alternatively, the plaintiff, therefore, ought to have filed the suit at least within three years of Ex.A8. The point No.1, therefore, has to be answered against the plaintiff. 33. Now, for the sake of convenience, point No.3 is considered ahead of point No.2, inasmuch as the discretionary jurisdiction to decree specific relief is held to be not automatic even if the plaintiff proves the agreement and performance. The conduct of the parties, the length of time when the plaintiff approaches Court and the inability of the plaintiff to establish the contentions and pleas raised in the plaint are all collectively required to be taken into consideration for the purpose of exercise of discretion by the Court under Section 20 of the Specific Relief Act. It is, no doubt, true that the plaintiff has specifically alleged fraudulent conduct on the part of the defendant and further alleged that the said fraud was alleged for wrongful gain. In the evidence, however, the plaintiff has failed to establish fraud. Secondly, the plaintiff’s categorical case in Para 2 (B) of the plaint was that ‘the defendant consented the plaintiff to occupy and use the portion of the same, stating that at the time of registration, measurements will be taken and the entire site of 67 gadis as per the agreement will be given possession of’. Thus, it is the admitted case of the parties that under Ex.A1 possession was not delivered but subsequently by consent of the defendant, the plaintiff occupied the balance land. This part of the allegation in the plaint was also not established by the plaintiff as no evidence was led with regard to the permissive possession of the plaintiff. Consequently, therefore, it has to be held that the possession of the balance land by the plaintiff was not authorized by the defendant including the construction of a house made by the plaintiff thereon. Consequently, therefore, it has to be held that the possession of the balance land by the plaintiff was not authorized by the defendant including the construction of a house made by the plaintiff thereon. The defendant, therefore, has instituted the suit O.S.No.43 of 1991 evidenced by the plaint Ex.A14 dated 13.02.1991 with respect to 5’ width encroached strip of land and with regard to further encroached land, it has come in the evidence that the defendant has instituted another suit O.S.No.30 of 2000 for recovery of possession. 34. It is stated by the learned counsel for the plaintiff that the consideration for 67 gadis as per Ex.A1, as claimed in the suit, had already been deposited by the plaintiff on 31.08.2000 pending the suit. However, keeping in view the circumstances, as above, coupled with the fact that though the balance land was not delivered to the plaintiff, she occupied the same and made constructions thereon, clearly shows that the said action of the plaintiff was high-handed and amounting to bringing a situation of fate accompli and force the defendant to execute sale deed at least to the extent of the balance encroached land. The jurisdiction of the Court with regard to exercise of discretion under Section 20 of the Specific Relief Act clearly warrants that such conduct of plaintiff negatives exercise of equity in his favour. The discretion exercised by the trial Court negativing the specific relief is, therefore, justified. Point No.3 is answered accordingly. 35. In view of the answers to points 1 and 3, point No.2, however, does not survive and irrespective of the finding thereon the suit would fail. The breach of contract on the part of the defendant was alleged by the plaintiff on the foundational pleading that measurements were never taken and time for discharge of obligation by the plaintiff has not arrived. The same, however, has already been discussed and answered above against plaintiff and it is held that at the time of Exs.A4 and A5 itself, the measurements were taken and in fact, the plaintiff in the plaint in Para 2(D) stated that there was no need to take measurement of site and note measurement in the payment endorsements. This, therefore, presupposes the fact of taking measurements. This, therefore, presupposes the fact of taking measurements. Ex.A1, no doubt, mentions that 100 gadis ‘approximately’ are to be conveyed and it cannot be said that there was a concluded contract with regard to 100 gadis. The parties had stipulated the rate under Ex.A1 viz. Rs.1,500/- per gadi and it was also stipulated that on the measurements whatever extent is found the same will be conveyed at the aforesaid rate. The plaintiff, therefore, is not justified in insisting upon conveyance of balance 67 gadis irrespective of whether that much land is left with the defendant or not. Perhaps realizing the aforesaid, the learned counsel for the appellant has moved an application, in this appeal, being ASMP.No.1437 of 2009 seeking to amend the plaint and restricting the relief to the extent of 44½ gadis of the balance suit land, though the said application is filed very belatedly and 8 years after the appeal was filed, in the interest of justice that application was also heard along with the appeal. However, entitlement of the plaintiff to the said relief is required to be answered in the negative in view of the fact that the said relief was offered by the defendant to the plaintiff as early as on 18.03.1992 under Ex.A8 notice. The plaintiff having not availed of the said opportunity and having not paid the balance amount at that time; in equity, it would be highly unjust to direct the defendant to execute the sale deed to the extent of the said reduced extent. Point No.2 also is, therefore, answered against the appellant/plaintiff. 36. In the result, therefore, the appeal is dismissed. However, there shall be no order as to costs. The trial Court had already directed the respondent to refund a sum of Rs.45,000/-deposited by the appellant. Just before the disposal of the suit, the appellant had deposited a further sum of Rs.55,000/-. In view of the appeal having been dismissed, the decree so to refund a sum of Rs.45,000/-as directed by the trial Court stands confirmed and the appellant shall also be entitled to refund of Rs.55,000/- deposited by the appellant as above.