Judgment : Heard Shri S. D. Lotlikar, learned Senior Advocate appearing for the Appellants and Shri P. Rao, learned Counsel appearing for the Respondents. 2. The Second Appeal came to be admitted on the following substantial question of law by Order dated 30.10.2007: 1) Whether in view of the fact that there was no specific time limit fixed for the performance of the agreement and the appellant had been put in possession of the property to be sold their counter claim for specific performance which was filed within two years of the repudiation of the Agreement by the Respondent could be said to be barred by limitation and unreasonably delayed? 3. Briefly the facts of the case are that a plot surveyed under no. 56/1 of Curchorem Village along with a building situated therein was agreed to be sold by Balkrishna Jaiwant Redkar vide Agreement of Sale dated 06.04.1969 to the late Gurudas to the deceased appellant no. 1 for a total sum of Rs.60,000/-out of which an amount of Rs.10,000/-was paid at the time of the execution of the Agreement and the balance amount was agreed to be paid at the time of the execution of the Sale Deed. The deceased Appellant was put in possession of the property agreed to be sold in part performance of the Agreement with right to the rents of the premises and to receive the rent and profits of the said property. The said Balkrishna along with his wife instituted a suit in the Court of Civil Judge, Senior Division at Quepem, being Spl. Civil Suit no. 6/1980 seeking declaration that the Agreement dated 06.04.1969 was null and void with a further direction to render the accounts of the business and the income received by the Appellants from the tenants of the suit property. The Appellants who were the original defendants on being served, contested the suit filed by the Respondent by filing their written statements. It was denied by the Appellants that the Agreement was null and void or fraudulent. Along with the written statements, the counter claim was also filed by the Appellants seeking specific performance of the Agreement dated 06.04.1969 against the Respondents on paying the balance amount. In the written statements filed to the counter claim by the Respondents, the only contention raised therein was that the said Agreement was fraudulent and, as such was null and void. In the written statements filed to the counter claim by the Respondents, the only contention raised therein was that the said Agreement was fraudulent and, as such was null and void. The suit filed by the Respondents came to be dismissed for default. No steps were taken by the Respondents to restore the said suit but, however, the counter claim proceeded for trial. The learned Trial Judge after recording of evidence, dismissed the counter claim filed by the Appellants. 4. Being aggrieved by the said Judgment, the Appellants preferred an Appeal before the learned District Judge, South Goa, at Margao being Regular Civil Appeal No. 124/2003. By Judgment and Decree dated 30.05.2006, the learned District Judge dismissed the Appeal filed by the Appellants. Whilst passing the impugned Judgment, the learned Lower Appellate Court found that the contention of the Appellants that they were put in possession and part performance of the Agreement could not be believed as the Appellant was already in possession prior to the date of the said Agreement dated 06.04.1969. The learned Judge further found that the Appellants have failed to establish that until the time they filed the counter claim, they had taken any steps to pay the balance amount to the Respondents. The learned Judge further found that as the Respondent no. 2 was not a signatory to the Agreement, the same was not legally enforceable. Being aggrieved by the said Judgment, the Appeal came to be admitted on the above substantial question of law. 5. Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants has assailed the impugned Judgment on the ground that the learned Judge has erroneously come to the conclusion that the Appellants are not entitled for specific performance. Learned Senior Counsel further pointed out that once the purchaser has been put in possession of the property in part performance of the Agreement under Section 53-A of the Transfer of Property Act, there is no period of limitation specified in law to file a suit for specific performance. Learned Senior Counsel has taken me through the Agreement and pointed out that there is no time specified for the performance of the contract and, as such, cause of action for filing such suit for specific performance starts from the date the Agreement is repudiated by the Respondents. Learned Senior Counsel has taken me through the Agreement and pointed out that there is no time specified for the performance of the contract and, as such, cause of action for filing such suit for specific performance starts from the date the Agreement is repudiated by the Respondents. Learned Senior Counsel further pointed out that for the first time on filing the suit, the Respondents have repudiated the Agreement and, as such, the counter claim filed by the Respondents within the period of two years is within the time prescribed under Article 54 of the Limitation Act 1963 and, as such, the question of holding that the counter claim filed by the Appellants is time barred is not justified. Learned Senior Counsel further pointed out that the learned Judge failed to consider that some amounts were paid towards part consideration of the balance amount to the debtors of the Respondents and, as such, the question of holding that the Appellants are not entitled for specific performance is totally misplaced. Learned Senior Counsel has taken me through the impugned Judgment as well as the material on record and pointed out that the substantial question of law framed by this Court is to be answered in favour of the Appellants and the counter claim filed by the Appellants deserves to be decreed. 6. On the other hand, Shri P. Rao, learned Counsel appearing for the Respondent, has supported the impugned Judgment. The learned Counsel further pointed out that there are concurrent findings of facts to the effect that the Appellants have failed to establish their readiness and willingness on their part to claim performance. Learned Counsel further pointed out that the very fact that the Appellants have chosen to claim that they have paid some amount to some debtors without any authority or consent of the Respondents though such payments are not provided in terms of the Agreement itself would suffice to establish that the Appellants were not ready and willing to perform their part of the contract. Learned Counsel further pointed out that there is no quarrel to the effect that even in cases in which the purchaser has been put in possession even much prior to the execution of Agreement, such possession can be considered for the purpose of ascertaining whether the possession of the purchaser is in part performance of the Agreement of Sale in terms of Section 53-A of the Transfer of Property Act. Learned Counsel further pointed out that taking note of the concurrent finding of fact that the Appellants were not ready and willing to perform their part of their contract, the question of granting specific performance in favour of the Appellants does not arise. Learned Counsel further submitted, even assuming there is no time prescribed, it is incumbent upon the Appellants to seek for specific performance within a reasonable time. Learned Counsel further pointed out that taking note of the fact that the Agreement is of the year 1969, the question of seeking specific performance at a belated stage itself suggests that no discretion can be exercised in favour of the Appellants on account of delay and laches. Learned Counsel as such submits that the Appeal deserves to be rejected and the substantial question of law be answered in favour of the Respondents. 7. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. I have also perused the pleadings and the Judgments of the Courts below and with the assistance of the learned Counsel the relevant portion of the evidence on record. I need not go into the aspect with regard to the contentions raised by the learned Counsel appearing for the respective parties as to whether the Appellants were ready and willing to perform their part of contract. There is no substantial question of law framed on that count nor any submissions advanced to show any perversity in such findings and, as such, the findings of the Court below on that aspect cannot be assailed. In any event, such concurrent finding of fact cannot be re-agitated before this Court in a Second Appeal. Be that as it may, the only submission to be considered would be with regard to the substantial question of law framed by this Court. 8. In any event, such concurrent finding of fact cannot be re-agitated before this Court in a Second Appeal. Be that as it may, the only submission to be considered would be with regard to the substantial question of law framed by this Court. 8. Article 54 of the Limitation Act clearly provides that a suit for specific performance of a contract in case in which no specific date is fixed for the performance of the contract is within three years from the date the plaintiff has noticed that the performance is refused by the defendant. In the present case, it is not in dispute that there was no time fixed for the performance of the contract in terms of the Agreement sought to be enforced by the Appellants in the counter claim. Considering the said provisions of the Limitation Act, such suit for specific performance is to be filed within a period of three years from the date the Respondents have refused performance of the contract. In the present case, there is no material on record and there is nothing pointed out to show that prior to the filing of the suit by the Respondents in the year 1980, the Respondent no.1 refused to perform the Agreement and, as such, in view of Article 54 of the Limitation Act, the period of three years would be from the date of refusal of performing the Agreement. But, however, the point which would have to be considered is whether the Appellants have been refused specific performance on the ground that the counter claim filed by the Appellants was barred by the law of limitation. On perusal of the Judgment of the learned Trial Judge dated 18.08.2003, it has been held that there is no material to establish that any effective steps were taken by the Appellants to pay the balance amount. The learned Judge has further found that the counter claim filed by the Appellants was barred by the law of limitation in terms of Article 54 of the Limitation Act. The learned Judge also found that the readiness and willingness to pay the balance amount has not been established. The learned Judge has further found that the counter claim filed by the Appellants was barred by the law of limitation in terms of Article 54 of the Limitation Act. The learned Judge also found that the readiness and willingness to pay the balance amount has not been established. Even assuming that there was no material on record to establish that Respondents have refused to perform their part of the Agreement prior to three years from the date of the filing of the counter claim, nevertheless, in view of the finding of the learned Trial Judge which have been confirmed by the Lower Appellate Court that there is no material adduced to show what efforts have been made by the Appellants to pay the balance amount, I find that the Courts below were justified to refuse specific performance of the said Agreement as prayed by the Appellants in their counter claim. Both the Courts below did not accept the contentions of the Appellants that part consideration was paid to pay the liabilities of the Respondents. It is well settled that granting a relief of specific performance is a discretionary relief and in the present case considering the long delay in seeking specific performance and as the Appellants themselves contend that they had sent letters to the Respondents to execute the Sale Deed which they failed to do so, I find that the Courts below have rightly exercised the discretion in refusing the specific performance of the Agreement to the Appellants. As such, the question of claiming advantage of the provisions of Section 53A of the Transfer of Property Act and claim part performance of the Agreement on such count cannot be accepted. Taking note of the fact that there is gross delay on the part of the Appellants to file their counter claim to seek for specific performance, I find that the Courts below have rightly appreciated the evidence on record and have refused specific performance to the Appellants. The Lower Appellate Court on re-appreciating the evidence on record has rightly come to the conclusion that Appellants are not entitled to the specific performance of the Agreement dated 06.04.1969. The Apex Court in the Judgment reported in 2003(10) S.C.C. 390 in the case of ManjunathAnandappa v. Tammanasa has held at paras 32 and 33 thus: “32. The Lower Appellate Court on re-appreciating the evidence on record has rightly come to the conclusion that Appellants are not entitled to the specific performance of the Agreement dated 06.04.1969. The Apex Court in the Judgment reported in 2003(10) S.C.C. 390 in the case of ManjunathAnandappa v. Tammanasa has held at paras 32 and 33 thus: “32. In LourduMari David v. Louis Chinnaya Arogiaswamy this Court observed: (SCC p. 590, para 2) “2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief.” 33. Yet again, both the trial court and the first appellate court refused to exercise their discretionary jurisdiction in favour of the plaintiff. The High Court, in our opinion, should not have interfered therewith without arriving at a finding that the discretion has been exercised by the courts below on wrong legal principle.” 9. The learned Single of this Court in the Judgment reported in 2009(2) Bom. C. R. 829 in the case of GangadharVithal Kale Vasarni vs. Shyamlal Bhikchand Rathod & Ors., has held at para 12, 13 and 14 thus: “12. The appellant must plead and prove that he was ready and willing to perform his part of the agreement of sale in order to get equitable relief available under section 53-A of the Transfer of Property Act. The plea of part performance is based on principles of equity. It would not enure to benefit of a dormant litigant, who did not express willingness to perform his part of the agreement of sale. The Apex Court in (Ramkumar Agrawal and another Vs. Thawar Das (dead) though L.Rs.)1, 1999 DGLS (soft) 836 : A.I.R. 1999 S.C. 3248 : 1999(7) S.C.C. 303 , observed: "Plea under section 53-A of the Transfer of Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness, protection to his possession could not have been claimed by reference to section 53-A of the Transfer of Property Act." 13. The term "willingness" as used in section 53-A of the Transfer of Property Act does imply "readiness and willingness" as used in section 16 of the Specific Relief Act. The Apex Court in (Sardar Govindrao Mahadik Vs. Devi Sahai)2, 1981 DGLS (soft) 492 : A.I.R. 1982 S.C. 989 : 1982(1) S.C.C. 237 , observed: "Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance." 14. It is conspicuous on basis of above observations that the term "willingness" as used in section 53-A would mean "readiness and willingness" likewise the expression used in section 16 of the Specific Relief Act. In this view of the legal position, the appellant is not entitled to invoke the doctrine of part performance.” 10. Considering the fact that the counter claim filed by the Appellants has not been dismissed on the ground of limitation alone, the above substantial question of law does not arise in the above Appeal. The answer to the said substantial question of law would not give any relief of specific performance in favour of the Appellants in view of the concurrent findings arrived at by the Courts below to the effect that readiness and willingness has not been established by the Appellants on the basis of the evidence on record and in view of the Judgments referred to above. The substantial question of law is answered accordingly. 11. In view of the above, I find no substance in the above Appeal which stands accordingly dismissed with no Orders as to costs.