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2012 DIGILAW 3328 (MAD)

K. Loganathan v. P. Karuppanna Gounder

2012-07-27

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Plaintiff has preferred this present Second Appeal as against the Judgment and Decree dated 05.03.1999 in A.S.No.198 of 1998 on the file of the II Additional District Judge, Erode in reversing the Judgment and Decree dated 09.07.1998 in O.S.No.203 of 1994 passed by the Learned Additional Subordinate Judge, Erode. 2. The Germane Kernel Plaint Facts filed by the Appellant/ Plaintiff are set out below: (i) The suit property and a northern portion of it was purchased by the 1st Respondent/1st Defendant and one Karuppanna Gounder, son of Periyanna Gounder, jointly on 24.08.1961. The property purchased under the said Sale Deed was the separate property of the vendees. (ii) One of the vendees, Karuppanna Gounder, son of Periyanna Gounder died and the said Karuppanna Gounder's legal heir Maheswaramoorthy (the son) and the 1st Respondent/1st Defendant entered into a registered Partition Deed on 28.05.1990, after which, the suit property was allotted to the share of the 1st Respondent/1st Defendant. As such, the suit property is the separate property of the 1st Respondent/1st Defendant. (iii) On 11.06.1990, the Appellant/Plaintiff and the 1st Respondent /1st Defendant entered into an agreement of sale in writing, in and by which, it was agreed that the 1st Respondent/1st Defendant should sell and the Appellant/Plaintiff should purchase the suit property for a price of Rs.1,26,000/- and that a sum of Rs.50,000/- was paid as advance and part of sale price on that day. (iv) Also, it was agreed that a further sum of Rs.50,000/-should be paid by the Appellant/Plaintiff to the 1st Respondent/1st Defendant by 16.09.1990 [on or before the end of Avani month]. That apart, the remaining sale price of Rs.26,000/- should be paid before the end of first week of Aippasi of Promoduth year, viz., on or before 24.10.1990. Though the time was determined, it was not treated as the essence of contract. (v) The Appellant/Plaintiff paid a further sum of Rs.30,000/-on 28.10.1990. An endorsement was made on the back of the said agreement. The Appellant/Plaintiff was always ready and willing to perform his part of the contract. He offered the balance of sale consideration to the 1st Respondent/1st Defendant and that the 1st Respondent/1st Defendant was postponing the same for some reason or other. Subsequent to the agreement, the 1st Respondent/1st Defendant's son Kumarasamy, instituted a partition suit O.S.No.52 of 1991 on 29.01.1991 against the 1st Respondent/1st Defendant and others. He offered the balance of sale consideration to the 1st Respondent/1st Defendant and that the 1st Respondent/1st Defendant was postponing the same for some reason or other. Subsequent to the agreement, the 1st Respondent/1st Defendant's son Kumarasamy, instituted a partition suit O.S.No.52 of 1991 on 29.01.1991 against the 1st Respondent/1st Defendant and others. He also filed I.A.No.106 of 1991 for an injunction restraining the alienation of the suit properties. In the said suit and the petition, the properties purchased on 24.08.1961 was shown as item No.1. Interim injunction restraining the 1st Respondent/1st Defendant from alienating the property was granted on 29.01.1991 and subsequently it was made absolute on 17.09.1992. (vi) Whenever the Appellant/Plaintiff requested the 1st Respondent/1st Defendant to execute the Sale Deed in respect of the suit property he was contending that he was restrained, by an order of injunction, from selling the suit property and that he would vacate the injunction and execute the Sale Deed. The suit O.S.No.52 of 1991 filed by the 1st Respondent/1st Defendant's elder son Kumarasamy, was dismissed for default on 19.11.1993. Thereafter, the Appellant/Plaintiff requested the 1st Respondent/1st Defendant to execute the Sale Deed, but the 1st Respondent/1st Defendant although agreed to it but was evasive. A notice was issued by the Appellant/Plaintiff to the 1st Respondent/1st Defendant on 02.02.1994 requesting him to execute the Sale Deed. But the 1st Respondent/1st Defendant sent a reply, inter alia, denying the very execution of the sale agreement and called upon the Appellant/Plaintiff to provide him with a xerox copy of the agreement. The Appellant/Plaintiff sent a xerox copy of the agreement to the 1st Respondent/1st Defendant on 14.02.1994. The 1st Respondent/1st Defendant sent a rejoinder on 21.02.1994, among other things, impliedly accepting the execution of the agreement and a receipt of Rs.80,000/-. Also, the 1st Respondent/1st Defendant took a plea that the agreement became invalid after the expiry of three years. (vii) Only after the reply notice dated 11.02.1994, the Appellant/ Plaintiff came to know that the 1st Respondent/1st Defendant executed a nominal Sale Deed on 23.11.1993 to his daughter-in-law, the 2nd Respondent/2nd Defendant. The said Sale Deed in favour of the 2nd Respondent/2nd Defendant is a sham and nominal one. (vii) Only after the reply notice dated 11.02.1994, the Appellant/ Plaintiff came to know that the 1st Respondent/1st Defendant executed a nominal Sale Deed on 23.11.1993 to his daughter-in-law, the 2nd Respondent/2nd Defendant. The said Sale Deed in favour of the 2nd Respondent/2nd Defendant is a sham and nominal one. The suit for specific performance filed by the Appellant/Plaintiff is in time because the 1st Respondent/1st Defendant was restrained by an order of injunction in I.A.No.106 of 1991 in O.S.No.52 of 1991 for the period from 29.01.1991 to 19.11.1993. If the Hon'ble Court for any reason finds that the Appellant/Plaintiff is not entitled to a decree for specific performance, then, he is entitled to get back the advance amount with interest at 12% per annum from the date of first payment till realisation of the entire amount, with a charge over the properties as per Section 55(6)(b) of the Transfer of Property Act. Hence, the Appellant/Plaintiff has filed the present suit. 3. The Written Statement Pleas of the 2nd Respondent/2nd Defendant [Adopted by the 1st Respondent/1st Defendant]: (i) The 2nd Respondent/2nd Defendant had purchased the suit property from the 1st Respondent/1st Defendant for valuable consideration and as such, she was a bona fide purchaser for value. In any event, the alleged Sale Agreement dated 11.06.1990 was barred by limitation. Hence, the Appellant/Plaintiff was not entitled to seek any relief as per agreement. The time was made the essence of contract and the purchaser should specifically perform his part of the contract and pay the sale price and obtain the Sale Deed at his expense. In default, he should forfeit all his rights. (ii) The suit O.S.No.52 of 1991 for partition filed by the 1st Respondent/1st Defendant's son Kumarasamy and obtaining the order of injunction was no excuse for the Appellant/Plaintiff in not performing his part of the agreement. The suit and injunction order in I.A.No.106 of 1991 do not legally debar the Appellant/Plaintiff from performing his part of the contract. (iii) The Appellant/Plaintiff had not served any notice or deposited the sale price and file a suit for specific performance within the stipulated period. The Appellant/Plaintiff was not entitled to statutory charge as per Section 56(6)(b) of the Transfer of Property Act. 4. Before the trial Court, in the main suit, 1 to 5 issues were framed for adjudication. (iii) The Appellant/Plaintiff had not served any notice or deposited the sale price and file a suit for specific performance within the stipulated period. The Appellant/Plaintiff was not entitled to statutory charge as per Section 56(6)(b) of the Transfer of Property Act. 4. Before the trial Court, in the main suit, 1 to 5 issues were framed for adjudication. On behalf of the Appellant/Plaintiff, witnesses P.W.1 and P.W.2 were examined and Exs.A.1 to A.12 were marked. On the side of the Respondents/Defendants, witness D.W.1 was examined and Exs.B.1 to B.3 were marked. 5. The trial Court, on a scrutiny of the oral and documentary evidence available on record, came to a consequent conclusion that the Appellant/Plaintiff was ever ready and willing to purchase the suit property and had further observed that the Appellant/Plaintiff was entitled to obtain the relief of specific performance and directed the Respondents/Defendants to receive a sum of Rs.46,000/-from the Court deposit and granted two months' time to the Respondents/ Defendants to execute the Sale Deed to and in favour of the Appellant /Plaintiff. 6. Feeling aggrieved against the Judgment and Decree passed by the trial Court dated 09.07.1998 in O.S.No.203 of 1994, the Respondents/Defendants had preferred A.S.No.198 of 1998, as an aggrieved persons, before the First Appellate Court viz., the Learned II Additional District Judge, Erode. 7. The First Appellate Court viz., Learned II Additional District Judge, Erode, while passing the Judgment in A.S.No.198 of 1998 on 05.03.1999, had, among other things, observed that the Appellant/ Plaintiff was not ready to fulfil his part of the contract as per the Sale Agreement. Also, it opined that the suit ought to have been filed by the Appellant/Plaintiff within three years from 24.10.1990, but the same was not done and held that the Appellant/Plaintiff was not entitled to get the alternate relief of return of advance amount paid by him. Consequently, it allowed the Appeal, by setting aside the Judgment and Decree of the trial Court passed in the main suit in O.S.No.203 of 1994 and dismissed the suit without costs. 8. The Appellant/Plaintiff, on being dissatisfied with the Judgment and Decree dated 05.03.1999 in A.S.No.198 of 1998 passed by the Learned II Additional District Judge, Erode, preferred the present Second Appeal before this Court. 9. 8. The Appellant/Plaintiff, on being dissatisfied with the Judgment and Decree dated 05.03.1999 in A.S.No.198 of 1998 passed by the Learned II Additional District Judge, Erode, preferred the present Second Appeal before this Court. 9. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Question of Law for consideration: "Whether the Appellant/Plaintiff is not entitled to compute the period of limitation for filing the suit, taking into consideration as a direct or indirect consequence of the interim injunction orders passed in O.S.No.52 of 1991?" The Contentions, Discussions and Findings on Substantial Question of Law: 10. The Learned Senior Counsel for the Appellant/Plaintiff submits that the Judgment and Decree of the First Appellate Court dated 05.03.1999 in A.S.No.198 of 1998, in reversing the well considered Judgment of the trial Court in O.S.No.203 of 1994, is against law and suffers from non-appreciation of material evidence. 11. It is the further contention of the Learned Senior Counsel for the Appellant/Plaintiff that the First Appellate Court failed to appreciate that the operation of the interim injunction order in I.A.No.106 of 1991 in O.S.No.52 of 1991 for the period from 29.01.1991 to 19.11.1993 as per Section 15 of the Limitation Act, extend the period of limitation by 2 years, 11 months and 21 days and therefore, the suit O.S.No.203 of 1994 is in time. 12. Yet another plea projected on the side of the Appellant/ Plaintiff is that the Appellate Court has wrongly held that the Appellant /Plaintiff is not entitled to seek the alternative remedy of the return of advance because of want of limitation. 13. Expatiating his arguments, the Learned Senior Counsel for the Appellant/Plaintiff submits that the First Appellate Court has omitted to take into account of the fact that the 1st Respondent/1st Defendant has not denied the evidence of P.W.1 that the 1st Respondent/1st Defendant informed the Appellant/Plaintiff that he would execute the Sale Deed after the ban period is over nor the 1st Respondent/1st Defendant has given notice to repudiate the contract at any time. 14. 14. The Learned Senior Counsel for the Appellant/Plaintiff takes a legal plea that the First Appellate Court has not adverted to the well established principle that the readiness and willingness to perform one's part of the contract cannot be treated as a straight jacket formula and these are to be taken into account from the totality facts and circumstances relevant to the intention and conduct of the party concerned. 15. Lastly, it is contended on behalf of the Appellant/Plaintiff that notwithstanding the issuance of Ex.A.4-Notice dated 25.08.1990, the Appellant/Plaintiff has paid a sum of Rs.30,000/- towards sale consideration, which showed his readiness and willingness to fulfil the contract. 16. In response, it is the submission of the Learned Counsel for the Respondents submits that the First Appellate Court has taken into consideration the entire facts and circumstances of the case coupled with the oral and documentary evidence on record and it arrived at a right conclusion that the suit filed by the Appellant/Plaintiff is barred by limitation and also held that the Appellant/Plaintiff is not ready and willing to perform his part of the contract as per the Sale Agreement and rightly allowed the First Appeal, by setting aside the Judgment and Decree of the trial Court passed in the main suit and dismissed the suit without costs, which may not be interfered with by this Court sitting in Second Appeal. 17. The Learned Senior Counsel for the Appellant/Plaintiff contends that the Appellant/Plaintiff paid an advance of Rs.50,000/-on the Sale Agreement date 11.06.1990 and paid a further sum of Rs.30,000/-which comes to 70% of the sale consideration of Rs.1,26,000/- and the 1st Respondent/1st Defendant was prevented from executing any document by order of the Court because of the operation of interim injunction order in O.S.No.52 of 1991 from 29.01.1991 and the period of injunction being in force is to be excluded. 18. The Learned Senior Counsel for the Appellant/Plaintiff brings it to the notice of this Court that after the suit is dismissed in November 1993, within two months thereof, notice has been issued and that the suit has been filed and the balance amount has been deposited into Court and this clearly established the readiness and willingness on the part of the Appellant/Plaintiff to perform his part of the contract as per Sale Agreement. 19. 19. The Learned Senior Counsel for the Appellant submits that the 2nd Respondent/2nd Defendant is none other than the daughter-in-law of the 1st Respondent/1st Defendant and the son of the 1st Respondent/1st Defendant filed O.S.No.52 of 1991 [Partition Suit] and obtained an order of injunction and therefore, the Respondents/ Defendants are estopped by their own conduct from resisting the suit for specific performance. 20. The Learned Senior Counsel for the Appellant/Plaintiff drawing the attention of this Court submits that the trial Court, in the Judgment in main suit, held that the 2nd Respondent/2nd Defendant (daughter-in-law of the 1st Respondent/1st Defendant) was not examined and further, no sale deed in her favour was filed and also held that the suit was not barred by limitation. 21. It is the contention of the Learned Senior Counsel for the Appellant/Plaintiff that the First Appellate Court in its Judgment in A.S.No.198 of 1998 after coming to the conclusion that time was not the essence of contract, it cannot dismiss the suit, since the question of limitation does not arise. But the dismissal of the O.S.No.203 of 1994 filed by the Appellant/Plaintiff on the file of the trial Court is clearly unsustainable in the eye of law. Further, when once it is held by the First Appellate Court that time is not the essence of the contract, the last date of payment looses its meaning. 22. The Learned Senior Counsel for the Appellant/Plaintiff seeks in aid of the common Judgment of this Court in O.S.A.Nos.285 and 362 of 2008 (DB) dated 29.10.2011 wherein at paragraph 17, it is observed hereunder: "17.) As per the agreement Exs.A2 and A3 dated 23.06.1996, one year was fixed for performance of the contract. Even though the time was fixed as one year, circumstances have changed which was not visualised by the parties when they entered into the contract. As stated by Pws.1 and 2 they have repeadedly approached the 1st defendant and he has been postponing and assuring to execute the sale deeds. It must therefore be deemed that the time was extended by consent of parties. Even though in the agreement, one year period was fixed for performance of the contract, since time was extended, period of limitation is not be calculated from 23.06.1997, the date of expiry of one year." 23. It must therefore be deemed that the time was extended by consent of parties. Even though in the agreement, one year period was fixed for performance of the contract, since time was extended, period of limitation is not be calculated from 23.06.1997, the date of expiry of one year." 23. He invites the attention of this Court to the decision of the Hon'ble Supreme Court in N.P.Thirugnanam (D) by Lrs. V. Dr.R.Jagan Mohan Rao & others, 1996-1-L.W.-239, at page 240 wherein at paragraph 5, it is, inter alia held as follows: "The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract." 24. He cites the decision of the Hon'ble Supreme Court in Jugraj Singh and another V. Labh Singh and others, AIR 1995 Supreme Court 945 (1) wherein in paragraph 5, it is laid down as follows: "The plea about ready and willingness of plaintiff is specifically available to the vendor or his legal representatives. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers." 25. Apart from the above, the Learned Senior Counsel for the Appellant relies on the following decisions: (a) In Surya Narain Upadhyaya V. Ram Roop Pandey and others, AIR 1994 Supreme Court 105 at page 106, the Hon'ble Supreme Court, in paragraph 4 & 5, has laid down as follows: "4.) Though the decree for specific performance is a discretionary power, yet the court, is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellate court, namely the appellant has always been ready and willing to perform his part of the contract. 5.) However, in view of the long lapse of time, and appreciation of the value of the property (in this case urban property) it was suggested to the appellant and the appellant had agreed, very fairly, to pay a further sum of Rs. 12,000/-. Accordingly, the appellant is directed to deposit a further sum of Rs. 12,000/-to the credit of the suit in the trial court within a period of two months from today and on the deposit so made, the appellant shall be entitled to have the sale deed executed within a period of three months thereafter. 12,000/-. Accordingly, the appellant is directed to deposit a further sum of Rs. 12,000/-to the credit of the suit in the trial court within a period of two months from today and on the deposit so made, the appellant shall be entitled to have the sale deed executed within a period of three months thereafter. In case the respondents refuse to execute the sale deed, it is open to the appellant to get the sale deed executed through the trial court. The direction to pay a sum of Rs. 12,000/- is in addition to the sum already deposited and lying in the court." (b) In Muthiah alias Gandhi and others V. Subbiah Chettiar by Power Agent Sevugan Chettiar and others, 1987 (1) MLJ 83 at page 85, in paragraph 6, this Court has held as follows: "6.) A reference to the orders made in the execution reveals that pending the appeal A.S.764 of 1974, there was an injunction restraining the respondents from bringing the suit property to sale in pursuance of the decree passed in O.S. 14 of 1967. Interim injunction was ordered on 10th December, 1976 and it was made absolute by order dated 4th October, 1977. I have already referred to the fact that the appeal itself was disposed of on 2nd March, 1981. Therefore, there was an injunction restraining the respondent from executing the decree from 10th December, 1976 till 9th April, 1981. Section 15(1) of the Limitation Act provides: In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn shall be excluded. According to Section 15, therefore the period from 10th December, 1974 to 2nd March, 1981, had to be excluded. If so, the decree is well in time. This aspect was not noticed even by the trial court." (c) In The Director of Inspection of Income Tax (Investigation), New Delhi and another V. M/s.Pooraran Mall and Sons and another, AIR 1975 Supreme Court 67, the Hon'ble Supreme Court, in paragraph 10, has observed as follows: "The period of limitation in Section 132 (5) is one intended for the benefit of the person whose property has been seized. It is open to him to waive it. It is, therefore, open to the aggrieved person, to agree to a fresh disposal of the case by the Income-tax Officer and thereby waive the period of limitation." (d) In Ramesh Chandra Chandiok and another V. Chuni Lal Sabharwal (dead) by his legal representatives and others, AIR 1971 Supreme Court 1238, the Hon'ble Supreme Court, in paragraph 6 and 7, has laid down as follows: "On the facts and circumstances of the case A must be held to be ready and willing to performance his part of the contract till date of suit and was therefore entitled to a decree for specific performance. Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. There was no material on record to show that A at any stage was not ready and willing to perform his part of contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained. (1965) Pun LR (Supp) 251, Reversed." 26. Repelling the contentions of the Learned Senior Counsel for the Appellant/Plaintiff, the Learned Counsel for the Respondents contends that Ex.A.9-Reply Notice dated 11.02.1994 of the 1st Respondent/1st Defendant and Ex.A.12-Rejoinder dated 21.02.1994 point out the stand of the Appellant/Plaintiff that second and third instalment payments as per Ex.A.1-Agreement dated 11.06.1990 were not honoured as agreed to between the parties and in fact, the commitments as per Agreement ought to be honoured scrupulously. 27. The Learned Counsel for the Respondents submits that the Appellant/Plaintiff ought to have paid the balance amount inspite of the injunction order and the very fact that he has not paid the balance amount, negatives the plea of readiness and willingness throughout the agreement period. 28. The Learned Counsel for the Respondents submits that the suit was filed on 28.02.1994 after three years and that the Appellant/ Plaintiff ought to have issued notice and filed the suit earlier for specific performance. 29. The prime contention advanced on behalf of the Respondents /Defendants is that an order of injunction in O.S.No.52 of 1991 [in another suit] does not enlarge the time and hence, the Appellant/ Plaintiff is not entitled to claim the alternate relief of return of advance. 30. 29. The prime contention advanced on behalf of the Respondents /Defendants is that an order of injunction in O.S.No.52 of 1991 [in another suit] does not enlarge the time and hence, the Appellant/ Plaintiff is not entitled to claim the alternate relief of return of advance. 30. The Learned Counsel for the Respondents contends that there is no proof of notice to the 1st Respondent/1st Defendant and his reply to the effect that execution would be performed after vacating the injunction order cannot lead to any assumption in this regard. 31. The Learned Counsel for the Respondents cites the Judgment of this Court in A.S.No.432 of 2000 dated 10.06.2011 wherein in paragraph 12, it is observed as follows: "12.) Learned counsel would further submit in his arguments that the suit was also barred by law of limitation as it was filed by the plaintiff after three years beyond the period of limitation. He would further submit in his argument that the date of agreement was 21.2.1989 and the time for payment and performance was fixed as 10 months which was over by 21.12.1989 and therefore, the suit, if any, ought to have been filed on or before 21.12.1992, but the suit was filed by the plaintiff only on 4.1.1995 which is beyond the period of limitation. He would also submit in his argument that the said suit was numbered only on 6.2.1995, after the requisite Court fees has been paid. He would also submit in his argument that the plaintiff did not ask for permission from the lower Court to pay the deficit court fee and such permission was also not granted and therefore, the presentation made on 4.2.1995 was not also a proper presentation and on that score also, the suit is liable to be dismissed. He would also submit in his argument that the plaintiff did not ask for permission from the lower Court to pay the deficit court fee and such permission was also not granted and therefore, the presentation made on 4.2.1995 was not also a proper presentation and on that score also, the suit is liable to be dismissed. He would further submit in his argument that the exemption as sought for by the plaintiff was to the effect that there was a suit filed by the minor sons of the 4th defendant in O.S.No.482 of 1989 on the file of the District Munsif, Harur and an interim injunction in I.A.No.108 of 1989 was in force which restrained the defendants from alienating the suit properties and the injunction order was vacated only on 29.8.1992 and therefore, the time limit given for filing the suit against the defendants would be extended till 30.06.1995 and therefore, the suit filed on 04.01.1995 and numbered on 06.02.1995 is within time, cannot be sustained. He would further submit that such a plea of exemption to the limitation under Section 15 of the Limitation Act cannot be made available to the plaintiff since it was nor an injunction against the plaintiff, not to file any suit or not to invoke the claim dated 21.2.1989. He would further submit that the injunction sought for against the defendants will not in any way extend the the period of limitation in favour of the plaintiff firm and the same has to be decided in the specific performance suit. He would further submit in his arguments that the suit is clearly barred by law of limitation since it was not filed within 21.12.1992. He would also draw the attention of the Court to a judgment of the Honourable Apex Court reported in AIR 1964 SC 227 (A.S.K.Krishnappa v. S.V.V.Somiah) for the said principle. He would also submit in his arguments that the said injunction order produced in Ex.A12 was not passed against the said Abdul Rawoop or the plaintiff. It was only an injunction order passed against the defendants, not to alienate the said property and it could not be construed that the plaintiffs are prevented from proceeding with the suit. He would also submit in his arguments that the said injunction order produced in Ex.A12 was not passed against the said Abdul Rawoop or the plaintiff. It was only an injunction order passed against the defendants, not to alienate the said property and it could not be construed that the plaintiffs are prevented from proceeding with the suit. The said order passed by the District Munsif, Harur in Ex.A12 does not prevent the plaintiff from filing any suit and therefore, the exemption claimed under Section 15 of the Limitation Act is not available to the plaintiff." 32. The Learned Counsel for the Respondents relies on the decision of the Hon'ble Supreme Court in Mrs.Saradamani Kandappan V. Mrs.S.Rajalakshmi & others, 2011 (3) C.L.T. 856 at page 868 to 870 wherein at paragraphs 17 and 18, it is observed hereunder: "17.) The appellant contends that time is not the essence of the agreement of sale dated 17.1.1981. She contends that where the vendors fail to give the documents of title to satisfy the purchaser about their title, and the purchaser is ready and willing to perform the contract, the termination of the agreement of sale by the vendors is illegal and amounts to breach of contract. They submit that High Court had failed to apply section 55 of the Contract Act, 1872. Section 55 of Contract Act deals with the effect of failure to perform at a fixed time, in contract in which time is essential. Said Section is extracted below : “Section 55. Effect of failure to perform at a fixed time, in contract in which time is essential.-- When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before a specified time, and fails to do such thing at or before a specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of essence of the contract. Effect of such failure when time is not essential: If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. Effect of acceptance of performance at time other than agreed upon: If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than agreed, the promisee cannot claim compensation of any loss occasioned by the nonperformance of the promise at the time agreed, unless, at the time of acceptance, he give notice to the promisor of his intention to do.” The above section deals with the effect of failure to perform at a fixed time, in contracts in which time is essential. The question whether time is the essence of the contract, with reference to the performance of a contract, what generally may arise for consideration either with reference to the contract as a whole or with reference to a particular term or condition of the contract which is breached. In a contract relating to sale of immovable property if time is specified for payment of the sale price but not in regard to the execution of the sale deed, time will become the essence only with reference to payment of sale price but not in regard to execution of the sale deed. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract. Normally in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract. 18.) Relying upon the observation of this court in N.Srinivasa v. Kuttukaran Machine Tools Ltd. [ 2009 (5) SCC 182 ] that "in the contract relating to immovable property, time cannot be the essence of the contract", the appellant put forth the contention that in all contracts relating to sale of immovable property, time stipulated for performance, even if expressed to be the essence, has to be read as not being the essence of the contract and consequently the contract does not become voidable by the failure to perform before the specified time. A careful reading of the said decision would show that the sentence relied on (occurring in para 31) apparently was not the statement of legal position, but a conclusion on facts regarding the contract that was being considered by the court in that case, with reference to its terms. In fact the legal position is differently stated in para 27 of the said decision, thus: “27.) In a contract for sale of immoveable property, normally it is presumed that time is not the essence of the contract. Even if there is an express stipulation to that effect, the said presumption can be rebutted. It is well settled that to find out whether time was the essence of the contract. It is better to refer to the terms and conditions of the contract itself.” 33. The Learned Counsel for the Respondents cites the decision of this Court in Seeni Ammal V. Veerayee Ammal, 1996-2-L.W.-461 wherein at paragraph 13, it is held as follows: "The plaintiff, who is a party to Ex.A.1 sale agreement, has admitted that she had not possessed any money. She has also admitted that her husband will advance money for completion of the sale transaction. Even though her husband was available, he was not examined to speak about the availability of money and resources for completion of the contract." 34. He also relies upon the decision of the Hon'ble Supreme Court in Smt.Chand Rani (Dead) by LRs. She has also admitted that her husband will advance money for completion of the sale transaction. Even though her husband was available, he was not examined to speak about the availability of money and resources for completion of the contract." 34. He also relies upon the decision of the Hon'ble Supreme Court in Smt.Chand Rani (Dead) by LRs. V. Smt.Kamal Rani (Dead) by LRs., (1993) 1 Supreme Court Cases 519 at page 520 wherein at paragraphs 29 to 31, it is held as follows: "The evidence also shows that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. The notices which were exchanged between the parties have to be looked into in determining readiness and willingness. Though the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs.98,000/- which again was reiterated in the notice dated September 16, 1973, the plaintiff refrained from paying the said sum. Even as late as Septembe 24, 1971 the plaintiff was never willing to make the payment of Rs.98,000/-. Thus the parties intended to make time as the essence under the suit agreement. Evidence shows that there was no readiness and willingness to perform the contract." 35. Based on the contentions and rival contentions put forward on either side, this Court makes a useful reference to the evidence of P.W.1, P.W.2 and D.W.1 to appreciate the controversies/disputes involved between the parties. 36. It is the evidence of P.W.1 (Appellant/Plaintiff) that the 2nd Respondent/2nd Defendant is the daughter-in-law of the 1st Respondent /1st Defendant and that the suit property belonged to the 1st Respondent/1st Defendant, by means of his purchase and Ex.A.1 is the Sale Agreement dated 11.06.1990 entered into between him and the 1st Respondent/1st Defendant in respect of the suit property for a sale consideration of Rs.1,26,000/- and that he paid an advance of Rs.50,000/- to the 1st Respondent/1st Defendant and that Ex.A.2-Sale Deed was handed over to him by the 1st Respondent/1st Defendant and that the 1st Respondent/1st Defendant and another had jointly purchased and divided the property as per Ex.A.3-Partition Deed. 37. 37. It is the further evidence of P.W.1 that the suit property mentioned in Ex.A.3, Sale Deed was allotted to the 2nd Respondent/2nd Defendant and that in Ex.A.1-Agreement, the witness Krishnamoorthy was the husband of 2nd Respondent/2nd Defendant and that Respondents/Defendants and Krishnamoorthy are living as a one family and that the 2nd Respondent/2nd Defendant knew about the Ex.A.2-Sale Deed dated 24.08.1961 and that the son of the 1st Respondent/1st Defendant Kumarasamy effected a publication in a daily claiming share in the suit properties and Ex.A.4 is the general notice dated 25.08.1990 and thereafter, he met the 1st Respondent/ 1st Defendant and paid a further sum of Rs.30,000/-on 28.10.1990 and Ex.A.5 is the endorsement made by the 1st Respondent/1st Defendant in Ex.A.1-Sale Agreement dated 11.06.1990 and in I.A.No.106 of 1991 in O.S.No.52 of 1991 the certified copy of the order is Ex.A.6 and Ex.A.7 is the Ex parte Judgment dated 19.11.1993 in O.S.No.52 of 1991, dismissing the suit for non-appearance of the Appellant/Plaintiff (inspite of being called) and that from the date of Ex.A.1-Sale Agreement, he was ready to complete the sale and also ready to perform his part of the contract. But the 1st Respondent/1st Defendant informed him that after cancellation of injunction order, he would sell the property and that he had deposited a balance of Rs.46,000/- before the Court and that the 1st Respondent/1st Defendant had executed a Sale Deed in respect of suit property to and in favour of the 2nd Respondent/2nd Defendant. 38. P.W.1 (in his cross examination) had deposed that Ex.B.2 is the copy of the Plaint in O.S.No.52 of 1991 and that he had not taken steps to implead him and that during the year 1991, he had not taken steps to file a suit and he does not know what was the relief prayed for in O.S.No.52 of 1991 and after the said suit being taken on file, he was impleaded as 11th Defendant and Ex.B.3 is the copy of the Plaint. 39. P.W.2, in his evidence, had stated that in Ex.A.1-Sale Agreement entered into between the Appellant/Plaintiff and the 1st Respondent/1st Defendant. 39. P.W.2, in his evidence, had stated that in Ex.A.1-Sale Agreement entered into between the Appellant/Plaintiff and the 1st Respondent/1st Defendant. He had signed as a witness (in respect of the suit property) and that the sale consideration was Rs.1,26,000/- and at the time of Ex.A.1-Sale Agreement, the Appellant/Plaintiff paid an advance of Rs.50,000/- to the 1st Respondent/1st Defendant and again on 28.10.1990 the Appellant/Plaintiff paid a further sum of Rs.30,000/-to the 1st Respondent/1st Defendant and he had written the recitals to the effect that on the reverse of Ex.A.1-Agreement, in which, the 1st Respondent/1st Defendant had affixed his signature and the same was Ex.A.5. 40. D.W.1 (1st Respondent/1st Defendant), in his evidence, had deposed that the suit property was allotted to him as per Ex.A.2-Partition Deed and that the Appellant/Plaintiff agreed to purchase the suit property measuring an extent of 3115 sq. ft. at the rate of Rs.40/- per sq. ft., for which an agreement Ex.A.1 was entered into between them and that a sum of Rs.50,000/- was paid as an advance by the Appellant/Plaintiff and the further sum of Rs.50,000/- by the Appellant/Plaintiff to be paid to him but after 4 = months later, the Appellant/Plaintiff came to him and paid a sum of Rs.30,000/-for which Ex.A.5 was the endorsement and that the Appellant/Plaintiff had not acted as per Sale Agreement and further had not taken steps to complete the sale. 41. D.W.1 added in his evidence that the Appellant/Plaintiff as per Sale Agreement had not paid the balance sale consideration and that he had not issued any notice and further that he had not filed the present suit within limitation and that he had sold the suit property to the 2nd Respondent/2nd Defendant for meeting out his family expenses and that the 2nd Respondent/2nd Defendant was in possession of the suit properties. 42. 42. D.W.1 (in his cross examination) had stated that Kumarasamy had not filed a suit in respect of the suit property and that the 2nd Respondent/2nd Defendant was living with her husband jointly and that he had sold the suit property to the 2nd Respondent/ 2nd Defendant (his daughter-in-law) for a sum of Rs.6,00,000/-and that Kumarasamy had not filed the suit against him and obtained an order of injunction and the balance sale consideration was to be paid before Avani month as per Agreement and since the Appellant/Plaintiff had not paid the money as agreed, he issued notice cancelling the agreement and after expiry of the time, the Appellant/Plaintiff paid a sum of Rs.30,000/-to him, which was entrusted in Ex.A.1-Sale Agreement and he had not refused to receive the said amount and that he had accepted the amount with consent. 43. In the instant case on hand, Ex.A.1-Sale Agreement is dated 11.06.1990 [entered into between the Appellant/Plaintiff and the 1st Respondent/ 1st Defendant]. A pouring over of Ex.A.1-Sale Agreement dated 11.06.1990 shows that the Appellant/Plaintiff received a sum of Rs.50,000/- from the 1st Respondent/1st Defendant on 11.06.1990 itself (Sale Agreement dated 11.06.1990). The second instalment of advance of Rs.50,000/- is to be paid before Avani Tamil month of promoduth year. The balance sale consideration of Rs.26,000/- will have to be paid from the date of Ex.A.1-Sale Agreement 11.06.1990 before the first week of Aippasi Tamil month in promoduth year. Ex.A.5 is the endorsement made by the Appellant/Plaintiff on 28.10.1990 for receipt of Rs.30,000/- form the 1st Respondent/1st Defendant. 44. In Ex.A.6, I.A.No.106 of 1991 in O.S.No.52 of 1991 filed by the 1st Respondent/1st Defendant's son K.Kumarasamy as Petitioner/ Plaintiff against Karuppanna Gounder and two others [Respondents/ Defendants therein] praying for the relief of temporary injunction and to grant an ad-interim injunction in the suit till disposal of the petition. Ad-interim injunction has been granted on 29.01.1991 and the same has been extended from time to time. The interim injunction has been made absolute on 17.09.1992. 45. As seen from Ex.A.7, the Ex parte Judgment in O.S.No.52 of 1991 dated 19.11.1993 because of non-appearance of the Plaintiff therein [1st Respondent/1st Defendant's son], the suit O.S.No.52 of 1991 has been dismissed. 46. The interim injunction has been made absolute on 17.09.1992. 45. As seen from Ex.A.7, the Ex parte Judgment in O.S.No.52 of 1991 dated 19.11.1993 because of non-appearance of the Plaintiff therein [1st Respondent/1st Defendant's son], the suit O.S.No.52 of 1991 has been dismissed. 46. In Ex.A.8-Lawyer's Notice of the Appellant/Plaintiff dated 12.02.1994 addressed to the 1st Respondent/1st Defendant, the 1st Respondent/1st Defendant has been informed, among other things, that he has not been able to vacate the interim injunction granted in I.A.No.106 of 1991 in O.S.No.52 of 1991 and ultimately the stay order was made absolute on 17.09.1992 and that the said suit came to be dismissed for default on 19.11.1993 and no steps were taken by the 1st Respondent/1st Defendant's eldest son (Plaintiff in O.S.No.52 of 1991) and further, the 1st Respondent/1st Defendant was not able to perform or to execute the Sale Deed during the subsistence of injunction order from 29.01.1991 to 19.11.1993 etc. 47. In short, as per Ex.A.8, the Appellant/Plaintiff's Lawyer Notice, the 1st Respondent/1st Defendant was called upon to signify to the Appellant/Plaintiff within a week from this date to express his readiness and willingness to execute the Sale Deed as per the Sale Agreement dated 11.06.1990 and to deliver vacant possession of the schedule property, after receipt of the balance of sale consideration etc. 48. In Ex.A.9-Reply Notice dated 11.02.1994 issued by the 1st Respondent/1st Defendant's Lawyer addressed to the Appellant/ Plaintiff's Lawyer, it is mentioned, in para 4, as follows: "4.) Your client is not concerned with the litigation between my client and his son. There was no legal impediment to my client to deal with his properties in any manner." 49. In Ex.A.10, Appellant/Plaintiff's Lawyer Notice dated 14.02.1194 addressed to the 1st Respondent/1st Defendant's Lawyer, it is, among other things, mentioned that the 1st Respondent/1st Defendant was not able to execute the Sale Deed in favour of the Appellant/Plaintiff and after the disposal of the suit, the 1st Respondent /1st Defendant executed a nominal Sale Deed in favour of his daughter-in-law on 23.11.1993 and that the new purchaser is very well know about the Appellant/Plaintiff's subsisting rights of the agreement dated 11.06.1990. In short, Ex.A.10, it is categorically mentioned that the alleged sale is not a bona fide one and the 1st Respondent/1st Defendant's daughter-in-law is not a bona fide purchaser for value. 50. In short, Ex.A.10, it is categorically mentioned that the alleged sale is not a bona fide one and the 1st Respondent/1st Defendant's daughter-in-law is not a bona fide purchaser for value. 50. In Ex.A.12-Reply Lawyer's Notice dated 21.02.1994 issued on behalf of the 1st Respondent/1st Defendant addressed to the Appellant/Plaintiff's Lawyer, it is, inter alia, stated that more than 3 years have elapsed from the date fixed for performance of the sale agreement. Many other circumstances have intervened and further, the agreement for sale is no longer enforceable in law etc. 51. Ex.B.1 is the Denial Notice issued on behalf of the 1st Respondent/1st Defendant and his wife Ramayammal through their Lawyer in Tamil Daily. Ex.B.2 is the copy of the Plaint in O.S.No.52 of 1991 [filed by the 1st Respondent/1st Defendant's son Kumarasamy as Plaintiff]. In O.S.No.52 of 1991, Defendants 1 to 5 are mentioned, in which, the 1st Respondent/1st Defendant's (Karuppanna Gounder's) name finds a place as 1st Defendant. However, the 2nd Respondent/2nd Defendant's name [daughter-in-law of the 1st Respondent/1st Defendant] does not find a place. 52. A perusal of Ex.B.3-Amended Plaint in O.S.No.52 of 1991 indicates that the Plaintiff (Loganathan) and the 2nd Defendant [in O.S.No.203 of 1994] are arrayed as Defendants 11 and 12 and it appears that the Plaint in O.S.No.52 of 1991 has been amended as per Order in I.A.No.923 of 1994 dated 20.01.1995). 53. The receipt of Rs.30,000/-by the 1st Respondent/1st Defendant from the Appellant/Plaintiff as per Ex.A.5-Endorsement does not expressly extended time for performance of Ex.A.1-Sale Agreement dated 11.06.1990. It merely speaks of the receipt of Rs.30,000/- by the 1st Respondent/1st Defendant from the Appellant/ Plaintiff on 28.10.1990, even on Ex.A.1-Agreement dated 11.06.1990 an advance of Rs.50,000/- was paid by the Appellant/ Plaintiff and the same was received by the 1st Respondent/1st Defendant. 54. It is not out of place for this Court to point out the decision in Gomathinayagam Pillai and others V. Palaniswami Nadar, AIR 1967 Supreme Court 868 wherein it is held that 'An intention to make the time the essence of contract may be evidenced either by express stipulations or by circumstances which are sufficiently strong to displace ordinary presumption that in contract for sale of land stipulation as to time is not of essence. Further, it is held that if time is not of essence originally, it can be made of essence even subsequently by serving notice on other party.' Also, in the aforesaid decision at page 872, it is, among other things, held thus: "..... As observed in Stickney v. Keeble, 1915 Advocate Commissioner 386 where in a contract for the sale of land the time fixed for completion is not made of the essence of the contract, but the vendor has been guilty of unnecessary delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end. In the present case appellants 1 and 2 have served no such notice, by their letter dated July 30, 1959 they treated the contract as at an endowment. If the respondent was otherwise qualified to obtain a decree for specific performance, his right could not be determined by the letter of appellants 1 and 2. (6) But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir H.Mama v. Flora Sassoon, 55 Ind Appellants 360 at p. 372: (AIR 1928 PC 208 at p. 216): "In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." 55. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." 55. In K.S.Vidyanadam and others V. Vairavan [AIR 1997 Supreme Court 1751], it is observed as follows: "It cannot be said that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. The rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties evolved in times when prices and values were stable and inflation was unknown -requires to be relaxed, if the modified, particularly in the case of urban immovable properties. It is high time, the Court do so. In the instant case may be, the parties knew of the circumstance regarding rising prices but they have also specified six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have some meaning. Not for nothing could such time-limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existent? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other part, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties)" 56. It is the specific evidence of D.W.1 (1st Respondent/1st Defendant) that the Appellant/Plaintiff as per Ex.A.1-Sale Agreement dated 11.06.1990 paid a sum of Rs.50,000/- as an advance and he informed that he would pay another sum of Rs.50,000/- after 90 days, but he paid a sum of Rs.30,000/-, 4 = months later, as evidenced from Ex.A.5-Endorsement made on 28.10.1990. 57. Also, it is the evidence of D.W.1 (1st Respondent/1st Defendant), in his cross examination, that after the expiry of time limit mentioned in Ex.A.1-Agreement, the Appellant/Plaintiff paid a sum of Rs.30,000/-and that he had not refused to receive the said amount but with consent received the said amount. 58. The object of Section 15 of the Limitation Act is that law does not compel a person to perform what he cannot possibly perform and it is an axiomatic principle in law that an act or conduct shall not injure or prejudice anyone. To invoke Section 15 of the Limitation Act, 1963, one must show that earlier he was restrained by an order from making the prayer. 59. The Limitation Act is a procedural law and it has to be strictly construed. In excluding the period of interim stay or injunction, it must be proved that the filing of a Suit in issue has been stayed by an order of injunction. The injunction or stay order imposed to be 'express'. The exclusion of time as per Section 15 of the Limitation Act can only be embarked upon by inter parties and it has no reference to the portion of a Judgment in 'rem'. 60. Also, one cannot forget that the period of limitation prescribed for a suit for specific performance is three years, which runs from the date of accrual of a cause of action. 61. It is to be borne in mind that a refusal to perform the contract need not be an express one. It may be gathered from encircling circumstances of a given case. Section 15(1) of the Limitation Act refers to a suit or application for execution of a decree. The aim of Section 15(1) is to protect the interest of an individual who is prevented by an order of injunction of Court from exercising a right of suit or execution of a decree passed in his favour against his being injured or compensated on that count, as opined by this Court. The aim of Section 15(1) is to protect the interest of an individual who is prevented by an order of injunction of Court from exercising a right of suit or execution of a decree passed in his favour against his being injured or compensated on that count, as opined by this Court. For excluding the time as per Section 15(1) of the Limitation Act, 1963, it must be established that the filing of the suit has been stayed by an order of injunction. 62. To put it differently, the section visualises an order or an injunction which stays the institution of the suit. A person claiming to take advantage of the ingredients of Section 15 (1) of the Act should show that he was earlier injuncted from seeking the relief which he is now claiming. However, if he could have done earlier, what he is endeavouring to perform now, certainly Section 15(1) of the Limitation Act is not attracted to a particular case, in the considered opinion of this Court. More importantly, if there is no order of stay or there is no order prohibiting anyone from filing a suit or applying for execution or the Court entertaining the suit or execution proceedings, then, Section 15(1) is not attracted, as opined by this Court. Indeed, to attract Section 15(1) of the Act, the stay should be absolute in effect. Ordinarily, when the stay is absolute, the fact that party has the power to set aside or modify the order may not affect the position. Also, it is to be noted that in order to invoke the ingredients of Section 15(1) of the Act, it is only the order of stay passed by a Court of Law is very much essential and there is no need to go into the aspect whether the said order is valid/proper. 63. Undoubtedly, the rules of limitation more often than not because hardship. However, in applying the provisions of the Limitation Act effect ought to be given to the strict grammatical meaning of the words employed by them. 64. Article 54 of the Limitation Act, 1963 is applicable to a suit for specific performance. 63. Undoubtedly, the rules of limitation more often than not because hardship. However, in applying the provisions of the Limitation Act effect ought to be given to the strict grammatical meaning of the words employed by them. 64. Article 54 of the Limitation Act, 1963 is applicable to a suit for specific performance. On cursory glance of Article 54 of the Limitation Act points out that the limitation period begins to interpretation commence from the date on which the contract is to be specifically performed as per the tenor of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. Needless to say that the contract is to be fulfilled by both the parties to the sale agreement. 65. Only if the suit for specific performance of contract is filed within the period of limitation mentioned in the third column of the Article 54 of the Limitation Act, 1963, the same is maintainable. If the same is not filed, then, a Court of Law has no right in invoking its discretionary power as per Order VII Rule 7 of the Civil Procedure Code to grant such relief to a Defendant. 66. Section 52 of the Transfer of Property Act secures the right of parties of a suit from a voluntary transfer or otherwise dealing with a particular property. 67. At this stage, this Court worth recalls the decision in S.Mahaboob Basha and another V. B.R.Mohan Rao (died by LRs.) and others, AIR 2006 (NOC) 1138 (A.P.), wherein it is observed and held that 'a plea for exclusion of time under Section 15 on ground of injunction order passed against vendor in partition suit, is untenable in view of the fact that in any way has not restrained the plaintiff purchaser from either instituting suit or proceedings with any legal proceeding in relation to agreement to sale and further that the mere non-denial or refusal to perform part of contract by deceased mother of the defendant is not sufficient to save the period of limitation.' 68. It is to be borne in mind that the suit for specific performance of a contract speaks of its actual execution as per stipulations and terms in a specific performance agreement/a concluded contract, there ought to be a mutual positive ascent on two sides as to the nature of the contract. It is to be borne in mind that the suit for specific performance of a contract speaks of its actual execution as per stipulations and terms in a specific performance agreement/a concluded contract, there ought to be a mutual positive ascent on two sides as to the nature of the contract. Also, it should be definite and certain. The agreement must be one enforceable in law. In short, the obligations to be performed clearly operate in personam. 69. If the suit for specific performance is filed beyond reasonable time, then, it has to be dismissed on that ground alone as per the decision in Md.Mohar Ali V. Md.Mamud Ali and others, AIR 1998 Gauhati 92. 70. Furthermore, where there is a breach in respect of the obligations to be performed, the remedy available to the injured party is a right to claim compensation or damages under Sections 73 and 74 of the Indian Contract Act. That apart, to sue for specific performance, another remedy is available to an aggrieved party. However, the said relief is available only as per circumstances mentioned in Chapter II of the Specific Relief Act, 1963. No wonder, a suit for specific performance is not one for compensation. 71. This Court aptly points out the decision in Stickney V. Keeble, (1915) AC 386 wherein it is held that 'even where time is not originally the essence of the contract, a party may give notice to the other where there is a delay, fixing a reasonable time for performance after which he can treat the contract as being at an end in case of default'. 72. In Manzurul Haque V. Mewajan Bibi, AIR1956 Cal 350, it is observed that 'Where the plaintiffs had ample knowledge and notice of the defendant's kobalas at or about the time of their dispossession in Baisakh 1344 B.S., the contract contained in the plaintiff's kobala must be deemed to have taken place before Jaishta 1344 B.S.' and held that 'a suit for specific performance brought for long beyond three years from such date of refusal is time barred'. 73. Moreover, the law is well-settled that the expression "date" signifies the specified date in the calendar. 73. Moreover, the law is well-settled that the expression "date" signifies the specified date in the calendar. There are two starting points of limitation as per Article 54 of the Limitation Act: (i)The time begins to commence from the date on or by which the contract is required to be fulfilled; and (ii) If no time is fixed, from the date of refusal. Only where no time is fixed in a sale agreement for the execution of sale deed, what is material is the date of refusal of performance. 74. It is to be pointed out that after the payment of advance for a sum of Rs.50,000/-on the date of Ex.A.1-Agreement dated 11.06.1990 itself, it has been agreed between the parties that another sum of Rs.50,000/-[being the second instalment] ought to have been paid by the Appellant/Plaintiff to the 1st Respondent/1st Defendant before 16.09.1990 and thereafter, the remaining balance of Rs.26,000/-should be paid by the Appellant/Plaintiff to the 1st Respondent/1st Defendant before 24.10.1990. Only on 28.10.1990, as seen from Ex.A.5-Endorsement, the Appellant/Plaintiff paid a sum of Rs.30,000/- to the 1st Respondent/1st Defendant. As per Ex.A.1-Sale Agreement dated 11.06.1990, the Appellant/Plaintiff has not fulfilled his part of the promise or his obligation to pay a sum of Rs.50,000/-to the 1st Respondent/1st Defendant before 16.09.1990. 75. It is crystal clear that as per Ex.A.1-Sale Agreement, the Appellant/Plaintiff has violated his promise/obligation to pay the second instalment of Rs.50,000/-before 16.09.1990 to the 1st Respondent/1st Defendant and also failed to pay balance sale consideration of Rs.26,000/- before 24.10.1990. In fact, he paid only a sum of Rs.30,000/- as on 28.10.1990 as per Ex.A.5-Endorsement made on the reverse on Ex.A.1-Sale Agreement dated 11.06.1990. 76. The mere acceptance of a sum of Rs.30,000/-by the 1st Respondent/1st Defendant from the Appellant/Plaintiff as per Ex.A.5-Endorsement dated 28.10.1990 would not in any way heighten or improve the case of the Appellant/Plaintiff, in the considered opinion of this Court. Also, the said acceptance of a sum of Rs.30,000/- on 28.10.1990 by the 1st Respondent/1st Defendant, as per Ex.A.5-Endorsement, cannot be considered as a waiver or an agreement to release or not to asset one's right. 77. Even on 11.02.1994 as per Ex.A.9 the 1st Respondent/1st Defendant has clearly mentioned that he was not in possession of the property and that he parted with title and possession and further, he was not the present owner of the suit property. 77. Even on 11.02.1994 as per Ex.A.9 the 1st Respondent/1st Defendant has clearly mentioned that he was not in possession of the property and that he parted with title and possession and further, he was not the present owner of the suit property. Further, in Ex.A.12, the 1st Respondent/1st Defendant, in his Reply Lawyer's Notice dated 21.02.1994, had informed the Appellant/Plaintiff's Lawyer that more than three years had elapsed from the date fixed for performance of the Sale Agreement and that it would be inequitable to demand specific performance of a lapsed agreement, more than three years after the period fixed for the performance of the agreement. 78. The deposit of Rs.46,000/-, representing the balance sale consideration, before the trial Court in O.S.No.203 of 1994 [at the time of filing of the suit] made by the Appellant/Plaintiff would not come to his rescue, as opined by this Court. 79. Moreover, the Appellant/Plaintiff, even from the date of Ex.A.5-Endorsement for receipt of Rs.30,000/- by the 1st Respondent/1st Defendant dated 28.10.1990, has not filed the suit well within three years. But, he filed the suit O.S.No.203 of 1994 only on 28.02.1994, that act also will not help the Appellant/Plaintiff. 80. Ordinarily, a mere delay in bringing the suit would not disentitle the Appellant/Plaintiff of the relief if the suit is filed within the limitation period. But, in the present case, not only the Appellant/ Plaintiff has violated the terms and conditions of Ex.A.1-Sale Agreement in regard to the payment of second instalment for a sum of Rs.50,000/- on or before 16.09.1990 (in fact, paid only Rs.30,000/- on 28.10.1990) and also the remaining sale consideration of Rs.26,000/-before 24.10.1990, but the delay and inaction on his part, certainly weigh with this Court in refusing the relief of specific performance being a discretionary remedy and since the present suit was filed beyond time, this Court holds that the Appellant/Plaintiff was not entitled to claim the alternative relief of refund of advance of Rs.80,000/-paid by him to the 1st Respondent/ 1st Defendant, because of the fact that Ex.A.1-Agreement speaks of forfeiture of the advance amount paid in case of default committed by the Appellant/Plaintiff in regard to the payment of second advance of Rs.50,000/-before 16.09.1990 and the third instalment was to be paid before 24.10.1990. The 1st Respondent/1st Defendant has sold the suit property to the 2nd Respondent/2nd Defendant on 23.11.1993. 81. The 1st Respondent/1st Defendant has sold the suit property to the 2nd Respondent/2nd Defendant on 23.11.1993. 81. Only with eyes wide open, the Appellant/Plaintiff and the 1st Respondent/1st Defendant has agreed to the terms and conditions of Ex.A.1-Agreement. 82. In a suit for specific performance the evidence and proof of agreement must be absolutely clear and certain. Granting the relief of specific performance is not an automatic one. 83. The suit for specific performance by the Appellant/Plaintiff is an independent claim. The question of limitation based on the subsequent sale executed by the 1st Respondent/1st Defendant to and in favour of the 2nd Respondent/2nd Defendant on 23.11.1993 cannot come to the aid of the Appellant/Plaintiff because of the fact that the Appellant/ Plaintiff is to adhere to the terms and conditions of Ex.A.1-Agreement dated 11.06.1990 and to complete the transaction. Also, he is to only rely on the evidence adduced in pursuance of the agreement. 84. In a suit for specific performance, it is incumbent on the Appellant/Plaintiff to establish that the suit is in time. The Appellant/ Plaintiff in a suit for specific performance cannot depend upon on the earlier suit O.S.No.52 of 1991 because of the fact that limitation cannot be asked for on the basis that there has been an order of injunction in I.A.No.106 of 1991 in O.S.No.52 of 1991 for the period from 27.02.1991 till the order of injunction being made absolute on 17.09.1992 after the petition being allowed. Cause of action only arises from the date of a person's failure to perform the terms/tenor of the contract/agreement. 85. When the Appellant/Plaintiff was not ready and willing to perform his part of the contract as per Ex.A.1-Sale Agreement dated 11.06.1990, then, certainly it has no bearing on the point of limitation. Furthermore, as per Section 15 of the Limitation Act equitable considerations are irrelevant. Except the ipsi dixi of the Appellant/ Plaintiff that the 1st Respondent/1st Defendant informed him that he would execute the Sale Deed after the ban period was over, there is no other sufficient/acceptable/convincing proof on the side of the Appellant/Plaintiff to the subjective satisfaction of this Court, in this regard. Also that the non-issuance of notice by the Appellant/Plaintiff to repudiate the contract cannot be put against him for the simple reason that it is for the Appellant/Plaintiff to prove his case based on pleadings. 86. Also that the non-issuance of notice by the Appellant/Plaintiff to repudiate the contract cannot be put against him for the simple reason that it is for the Appellant/Plaintiff to prove his case based on pleadings. 86. As regards the plea on the side of the Appellant/Plaintiff that no cross objection has been filed in regard to the finding of the First Appellate Court that the time is not the essence of contract, it is to be pointed out that as per Order 41 Rule 32 of Civil Procedure Code, the cross objection can be filed by a party, who might have appeal from the decree of the lower Court but has not done so. Even the non-filing of cross objection on the side of the 1st Respondent/1st Defendant is not fatal, in the considered opinion of this Court. 87. The suit O.S.No.203 of 1994 filed by the Appellant/Plaintiff beyond three years from the date of breach of agreement/contract is clearly barred by limitation. The plea that the Appellant/Plaintiff has come to the knowledge of the sale of the property dated 23.11.1993 only through rejoinder on 11.02.1994 would not come to the aid of Appellant/Plaintiff to extend the period of limitation so as to enable him to file the present suit O.S.No.203 of 1994. 88. When the order of injunction was in force from 27.02.1991 till 17.09.1992 and the petition being allowed on that day and stay being made absolute, the Appellant/Plaintiff [in O.S.No.52 of 1991 on the file of Principal Sub Court, Erode] was not a party to the proceedings in O.S.No.52 of 1991. Therefore, the question of limitation with the third party could not be taken into account. As a matter of fact, the plea of limitation is to be calculated on the basis of Ex.A.1-Agreement dated 11.06.1990 and in any event, either the subsequent sale made by the 1st Respondent/1st Defendant to the 2nd Respondent/2nd Defendant on 23.11.1993 in respect of the suit property or the purported knowledge of the Appellant/Plaintiff coming to know of the sale of the property through rejoinder on 11.02.1994 could not be of any avail to the Appellant/Plaintiff. 89. 89. As far as the present case is concerned, the Appellant/ Plaintiff instituted the present suit O.S.No.203 of 1994 praying for the relief of specific performance against the 1st Respondent/1st Defendant and his daughter-in-law viz., the 2nd Respondent/2nd Defendant on the file of the trial Court viz., the Additional Subordinate Judge, Erode on 28.02.1994. Even though an order of interim injunction has been in force in I.A.No.106 of 1991 in O.S.No.52 of 1991 from 27.02.1991 till the petition being allowed and the order of injunction being made absolute on 17.09.1992, there is no order preventing the Appellant/ Plaintiff from instituting a suit claiming the relief of specific performance or the Court entertaining the suit. As such, the present suit O.S.No.203 of 1994 filed by the Appellant/Plaintiff on 28.02.1994 on the file of the Additional Subordinate Judge, Erode is barred by Limitation. When once the suit is barred by limitation, the Plaintiff is not entitled to get the relief of specific performance or the refund of advance paid by him to the 1st Respondent/1st Defendant. The plea projected on behalf of the Appellant/Plaintiff that the time is not the essence of contract would not come to his aid and in that view of the matter, the Appellant/Plaintiff is not entitled to compute the period of limitation for filing the suit O.S.No.203 of 1994 taking into consideration as a direct or indirect consequence of the interim injunction order passed in I.A.No.106 of 1991 in O.S.No.52 of 1991 and the Substantial Question of Law is answered against the Appellant /Plaintiff. 90. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court viz., II Additional District Judge, Erode dated 05.03.1999 in A.S.No.198 of 1998 are affirmed by this Court for the reasons assigned in this Appeal. The Suit O.S.No.203 of 1994 filed by the Appellant/Plaintiff is dismissed.