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2011 DIGILAW 661 (MAD)

R. Thiruvenkatam v. K. Sayeekumari

2011-02-08

R.S.RAMANATHAN

body2011
Judgment :- 1. The unsuccessful plaintiff is the appellant herein. The suit was filed for specific performance of an agreement of sale dated 14.12.1972. 2. The case of the plaintiff was that he and the respondent/ defendant entered into an agreement dated 14.12.1972, for the purchase of the property in plot No.143, for a sum of RS.2,500/- and on the date of agreement itself, a sum of Rs.1,000/- was paid and on 23.01.1973, another sum of Rs.1,000/- was paid and subsequently, on 09.05.1973, the balance sum of Rs.500/- was paid and that was also acknowledged by the respondent/defendant on the reverse of Ex.B5. Thereafter, the respondent/defendant did not execute the sale deed, despite repeated request of the appellant, and in the year 1987, the appellant/plaintiff issued a notice and as there was no response, the suit was filed for specific performance of the agreement of sale. 3. The respondent/defendant admitted the execution of the agreement, but denied the subsequent payments made by the appellant and stated that as per the agreement, the price was fixed at Rs.6,000/- and the appellant has paid only Rs.1000/- and he has to pay the balance of Rs.4,000/- within a period of two months and he has not came forward to pay the balance and therefore, the appellant was not ready and willing to perform his part of the contract. Hence, he is not entitled to the relief prayed for. 4. The respondent/defendant also contested the suit stating that the suit was barred by time. The Trial Court accepted the case of the appellant with respect to the agreement of sale and held that the appellant was ready and willing to perform his part of the contract and the agreement was a genuine one and the entire consideration was paid by the appellant. Nevertheless, the Trial Court dismissed the suit on the ground of limitation. The Lower Appellate Court also concurred with the findings of the Trial Court and dismissed the appeal. Hence this Second Appeal. 5. At the admitting the Second Appeal the following substantial question of law was framed by this Court :- "Whether the Courts below have erred in not computing the the period of limitation from the time of the refusal to execute the sale deed after the notice of the plaintiff in the year 1988? 6. Hence this Second Appeal. 5. At the admitting the Second Appeal the following substantial question of law was framed by this Court :- "Whether the Courts below have erred in not computing the the period of limitation from the time of the refusal to execute the sale deed after the notice of the plaintiff in the year 1988? 6. It is submitted by the learned counsel appearing for the appellant that under Section 54 of the Limitation Act, when no time is mentioned in the agreement of sale, for the performance of the contract, the time begins to run, when the plaintiff has notice of refusal of the performance. In the present case on hand, the respondent was delaying the execution of the sale deed, even after the receipt of the entire sale consideration and therefore, notice was issued in the year 1988, and thereafter, he refused to register the sale deed and within three years from the date of issuance of notice, the suit was filed. Therefore, the Courts below erred in dismissing the suit on the ground of limitation. The learned counsel has also relied upon a judgment reported in (2006) I C.T.C. 828, in the case of ( R.K.Parvatharaj Gupta Vs. K.C.Jayadeva Reddy) in support of his contention. 7. A perusal of Ex.A1, would make it clear that the parties agreed to get the sale deed executed on payment of entire sale consideration. It is stated in Ex.A1, that against the total consideration of Rs.2,500/-, a sum of Rs.1,000/- was received and the balance amount shall be paid without any default, from that date and if the balance amount was paid, the respondent would execute the sale deed. Though no time is fixed under Ex.A1, for performance of the contract, it has been stated clearly that on payment of the balance sale consideration, the property shall be conveyed by the respondent, in favour of the appellant. 8. Admittedly, the appellant had paid the balance consideration in two installments viz., on 23.01.1973, and 09.05.1973. Therefore, on payment of last installment on 09.05.1973, the appellant/plaintiff is entitled to insist on execution of the sale deed and according to me, the time begins to run from that date, as specific date, was mentioned in Ex.A1, regarding the performance of the contract. Therefore, on payment of last installment on 09.05.1973, the appellant/plaintiff is entitled to insist on execution of the sale deed and according to me, the time begins to run from that date, as specific date, was mentioned in Ex.A1, regarding the performance of the contract. Though it was pleaded that the appellant was requesting the respondent/defendant to execute the document and he was evading, except oral evidence, no proof has been adduced by the appellant. 9. In the judgment referred to supra, the Hon'ble Supreme Court having regard to the facts and circumstances of that case, held that no time had been fixed in the contract for performance of the contract, and therefore, the time begins to run from the receipt of the notice by the respondent. 10. As stated supra, in this case, it has been specifically stated in Ex.A1, that the sale deed shall be executed on payment of the balance consideration, which was done on 09.05.1973. Therefore, it is not a case where no time is fixed in the agreement of sale. and three years period starts from the date of payment of balance consideration i.e., 09.05.1973 and the suit was admittedly filed in the year 1980. 11. Hence, both the Courts below have rightly dismissed the suit on the ground of limitation. Therefore, the substantial question of law is answered against the appellant. 12. In the result, the judgment and decree of the Courts below are confirmed and this Second Appeal is dismissed. No costs.