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2018 DIGILAW 1343 (RAJ)

Ajaib Singh v. LRs of Shiv Lal

2018-05-22

DINESH MEHTA

body2018
JUDGMENT : DINESH MEHTA, J. 1. By way of the present appeal, the appellants — plaintiffs have called in question, the judgment and decree dated 30.03.1989 passed by learned Addl. District & Sessions Judge, Raisinghnagar (hereinafter referred to as “the trial Court”), whereby he had rejected the suit filed by them, on the ground of limitation. 2. The facts within the precincts of the issue of limitation, adjudicated by the trial Court are; that the plaintiffs (appellants herein) filed a suit for specific performance of the agreements dated 08.01.1963 and 08.04.1963, entered into between them on the one end and Shivlal and Harbansh Lal [propositus of defendants No.(ii) to (viii)] on the other. It was stated by the plaintiffs that the defendants Shivlal and his brother Harbanshlal were in need of money, for which they decided to sell their agricultural land admeasuring 24 bigha and 15 biswa of Murabba No. 60, Chak No. 21PS, Tehsil Raisinghnagar, for a consideration of Rs. 15,000/-. The said land was allotted to the defendants by the State Government, however the same lying uncultivated, for which they were tempted to sell it. The plaintiffs had paid a sum of Rs. 1,000/- to the defendants at the time of execution of the agreement to sell dated 08.01.1963. As per the agreement executed between the parties, out of the remaining amount of Rs. 14,000/-, Rs. 4,000/- was agreed to be paid in cash in Chaitra Samvat 2030 while the remaining amount of Rs. 9,000/- was to be deposited towards the due installments of the land. The remainder of the consideration i.e. Rs. 1000/- was agreed to be paid within a month of the payment of last installment simultaneously at the time of execution of the sale deed. 3. In furtherance of the said transaction, as a part performance, a sum of Rs. 4,000/- was paid by the plaintiffs on 08.04.1963 and an endorsement to this effect was made on the said agreement dated 08.01.1963 itself. 4. The plaintiffs stated that as a part performance of the agreement, the defendants had handed over the possession of the land, as a result whereof they have been enjoying cultivatory possession over the land since the date of agreements. The plaintiffs averred that they had deposited a sum of Rs. 8143.92 against the due installments of the land belonging to Harbansh Lal (Rs. 3950.80) and Shivlal (Rs. The plaintiffs averred that they had deposited a sum of Rs. 8143.92 against the due installments of the land belonging to Harbansh Lal (Rs. 3950.80) and Shivlal (Rs. 4193.12) on different dates and thus a sum of Rs. 857/- remained to be paid to the defendants. 5. According to the plaintiffs' own averments, the sale deed was required to be executed within a month of payment of the due installments of the land. 6. It had been the specific case of the plaintiffs that after making the payment of the due installments on 08.01.1968 with the Government, the plaintiffs asked the defendants — vendors to execute the sale deed in their favour, but the defendants stated that as per the provisions of the Rajasthan Colonization Act, 1954, the sale deed cannot be executed and registered, unless a consent from the competent authority is obtained. The plaintiffs have stated in their plaint that they were ready with a sum of Rs. 857/- and willing to get the sale deed executed, after making the requisite payment of the registration charges and stamp duty, but the defendants adopted dilatory tactics for avoiding the execution of sale-deed. 7. The plaintiffs came with a case that after death of Harbansh Lal, when they contacted Shivlal and Harbansh Lal a progenies, they assured that the needful would be done, when sons of Harbansh Lal would become major. 8. It has further been stated that when the plaintiffs contacted the defendants 15 days ahead of the filing of the suit, for the purpose of execution of the sale deed, the defendants demanded a sum of rupees one lac and cautioned that otherwise they would sell it to someone else. The plaintiffs contended that they contacted the defendants a day before instituting the suit and requested them to accept the remaining amount of Rs. 857/- and execute the sale deed in their favour, but they turned a flat face. Projecting the refusal (a day before the date of filing suit, which was filed on 07.10.1982) as a cause of action, the plaintiffs prayed relief of performance of the contract of sale in their favour. 9. 857/- and execute the sale deed in their favour, but they turned a flat face. Projecting the refusal (a day before the date of filing suit, which was filed on 07.10.1982) as a cause of action, the plaintiffs prayed relief of performance of the contract of sale in their favour. 9. It is interesting to note that in the plaint as originally filed, there were no averments touching upon the cause of action and limitation, however, when the defendants raised the plea of limitation, the plaintiffs sought an amendment in the plaint by way of filing an application dated 16.02.1983 under Order VI Rule 17 of the Code of Civil Procedure, which came to be allowed by the trial Court vide its order dated 17.05.1983 and an amended plaint incorporating para No. 21 ¼d½ came to be filed, which reads thus:— ^^21¼d½ & ;g fd Áfroknhx.k us oDr bdkjkjukek cS;ukeka dh jftLVjh dk ok;nk okn&xzLr Hkwfe dh fdLrs Hkjus ds ,d ekg ds i'pkr~ fd;k Fkk ijUrq Hkwfe jktLFkku dksyksukbZts'ku ,DV 1954 ds vUrxZr cus fu;eksa ds vk/khu vykV dh xbZ Fkh blfy, bldh fcØh ds fy, ftyk/kh'k egksn; dh eatwjh ysuh vko';d Fkh blds oxSj cS;ukeka dh jftLVjh ugha gks ldrh Fkh vkSj fcØh voS/k gksrh blfy, foØrkx.k cS;ukeka eUtwjh feyus ij jftLVjh djokus dk eqrkfcd /kkjk 8 okn&i= dgrs jgs] vk'oklu nsrs vkSj nksuksa i{k bl ij lger jgs ijUrq /khjs&/khjs Hkwfe ds Hkko c<+rs jgs vkSj Áfroknhx.k dh fu;r esa QdZ vkrk jgk vkSj mUgksaus fnukad 4-10-1982 dks okn&xzLr lEifr dk foØ; foys[k&i= iathc} djokus ls Li"V bUdkj dj fn;k vkSj blh rkjh[k dks oknhx.k dks ekywe gqvk fd Áfroknhx.k okn&xzLr lEifr dk cS;ukeka ds uke ugha djok;saxsA blfy, nkok vUnj fe;kn gSA** 10. With a view to ward off the hurdle of limitation, the plaintiffs stated that though the sale deed was required to be executed within a month of the payment of due installment(s); however, sale deed could not be executed for want of requisite permission of the Collector needed under the provisions of the Rajasthan Colonization Act, 1954. It has also been asserted that the vendors — defendants kept on assuring the plaintiffs that the sale deed would be executed as and when the permission is obtained. It has also been asserted that the vendors — defendants kept on assuring the plaintiffs that the sale deed would be executed as and when the permission is obtained. According to the plaintiffs, on 5.10.1982, the defendants flatly refused to execute the sale deed and immediately whereafter they filed the suit in question, to contend that the limitation would start running from 5.10.1982, the date when the defendants denied the execution of the sale deed. 11. The defendants filed a written statement and stated that the subject land was allotted by the Central Government to the defendants being refugees and not by the State Government; while taking a plea that the agreement had been got executed fraudulently. It was contended that even if the factum of execution of the agreement dated 08.01.1963 is assumed; the sale deed was required to be executed within one month of the payment of the due installments of the land, hence the suit filed after about 15 years was ex-facie barred by limitation. It was also stated that even going by the plaintiffs' own version a sum of Rs. 857/- was due to the defendants, which amount had neither been offered by the plaintiffs, nor any request for execution of the sale deed was ever made. 12. The defendants came out with a case that when the plaintiffs had deposited the entire due installments in the year 1968, they ought to have paid the balance amount to the defendants and got the sale deed executed within a period of one month from 08.02.1968. According to them the limitation commenced from 08.03.1968 and the suit filed in October, 1982 was hopelessly time barred. A specific stance of suit being barred by limitation was taken by the defendants, while maintaining that the amount of remaining consideration was not offered to them to contend that the plaintiffs had failed to perform their part within a month. 13. A specific stance of suit being barred by limitation was taken by the defendants, while maintaining that the amount of remaining consideration was not offered to them to contend that the plaintiffs had failed to perform their part within a month. 13. On the basis of the pleadings of the parties, the trial Court framed the following issues:— ^^1- vk;k f'koyky o gjoa'kyky us okn i= ds en la[;k 1 o 3 esa of.kZr Hkwfe dks :i;s 15]000@& :i;s esa oknhx.k dks cspus dk bdjkj fnukad 8-1-1963 dks oknhx.k ds gd esa fd;k o bdjkjukek rgjhj o rdehy fd;k \ 2- vk;k oknhx.k us bdjkjukek fy[ks tkus ds le; 1]000@& :i;s vnk fd;s o fnukad 8-4-1963 dks 5]000@& :i;s Áfroknhx.k dks vnk fd;s ,oa lafonk dh vkaf'kd ikyuk esa dCtk tehu oknhx.k dks ns fn;k \ 3- vk;k oknhx.k us fookfnr tehu dh fd'rksa dh cdk;k jkf'k ds isVs gjoa'kyky ds [kkrs esa 3]950 :i;s 80 iSls o f'koyky ds [kkrs esa 4]193 :i;s 12 iSls dqy 8]143 :i;s 92 iSls vnk fd;s tks tehu dh dher esa ,MtsLV gksus gS \ 4- vk;k oknhx.k vuqca/k dh vius ftEes dh 'krksZ dks iwjk djus ds fy;s ges'kk rS;kj ,oa rRij Fks o vc Hkh gS \ 5- vk;k okn oknh okn i= iSjk uaŒ 21¼d½ esa vafdr dkj.kksa ls vUnj fe;kn gS \ 6- vk;k oknhx.k us vuqca/k dh 'krksZ dh ikyuk esa le; ij fd'rs tek ugha djkbZ] us cdk;k jde vnk dh ;fn ,slk gS rks bldk nkos ij D;k vlj gS \ 7- nknjlh D;k gksxh \** 14. Issue No. 5 being legal issue, relating to limitation has been decided as a preliminary issue by the Court below. After appreciating the evidence in this regard, the trial Court answered the issue in negative and resultantly the suit of the plaintiffs came to be rejected, being barred by limitation. 15. While discussing the pleadings and evidence of the rival parties, surrounding the issue No. 5, the trial Court found that according to the terms of the agreement dated 08.01.1963, the sale deed was required to be executed within one month of the payment of the last installments of the subject land; and the same were paid in the year 1968, according to the plaintiffs' own assertion. The trial Court has further observed that the plaintiffs have not produced any documentary or oral evidence to prove that after payment of the due installments, they had asked the defendants to execute the sale deed in their favour. Further, the failure on the part of the plaintiffs to issue any letter or notice has been reckoned by the Court below, as their negligence or attempt to let the period of limitation expire, by their own indolent and negligent attitude. The trial Court went ahead to observe that contents of para No. 21 ¼d½ of the plaint were nothing, but a story scripted by the plaintiffs in a bid to bring their suit within limitation. As the assertions made in the para No. 21 ¼d½ were not proved, the trial Court held that the time was an essence of the contract; and that the limitation started running from the year 1968; and hence, the suit ought to have been filed before expiry of three years therefrom; i.e. in the year 1971. 16. As a natural corollary of the decision of issue No. 5 in unaffirmative form, the suit filed by the plaintiffs came to be rejected vide the judgment and decree dated 30.03.1989. 17. After narrating the facts with his usual precision, Mr. J.L. Purohit, learned Senior Counsel assisted by Mr. Rajeev Purohit, assailed the findings and conclusion arrived at by the trial Court on numerous counts. While reading the contentious agreement dated 08.01.1963; its endorsement dated 08.04.1964; and the statements of PW-1 — Ajayab Singh vis-a-vis the statement of DW-1 — Satishchand S/o Harbansh Lal, Mr. Purohit impeached the finding of the Court below from all conceivable counts. 18. Reading the statement of PW-1 and the averments made in the plaint, particularly para No. 21 ¼d½ thereof, learned counsel for the appellants contended that after payment of due installments, the plaintiffs contacted the defendants for execution of the sale deed, but they deferred the performance by saying that the sale deed would be executed after the defendants No. 4 to 8 became major, as Harbansh Lal had passed away, leaving behind his six children and wife; out of whom only one son was major. He added that plaintiffs bonafidely believed such version, as they were aware that the sale deed could not be executed without the permission of the competent Court, as the defendants No. 4 to 8 were minor at that time. Mr. Purohit invited attention of this Court towards the Rajasthan General Colony Condition No. 9 of the Rajasthan Colonization Act, which contains an embargo that an allottee cannot sell the land, without prior permission of the competent authority viz. Collector. 19. He contended that as the defendants did not obtain the requisite consent ¼lun½, from the competent authority and protracted the execution of sale deed in the guise of age of the defendants No. 4 to 8, the time period provided in the agreement dated 08.01.1963 stood extend automatically. The limitation would start running from the date of refusal by the defendants, which in the present case was 05.10.1982 and the suit filed by the plaintiffs on 07.10.1982 was clearly within limitation; argued learned senior counsel. 20. Mr. Purohit vehemently argued that the period of one month for execution of sale deed given in the agreement dated 08.01.1963 was not essence of the contract and the intention of the parties was to perform the contract when the permission to sale is obtained from the competent authority. Elucidating his arguments, Mr. Purohit contended that it was the duty and responsibility of the defendants to get the due permission from the competent officer; the plaintiffs believed rather relied upon the assurance of the defendants that they would execute the sale deed once the permission is obtained and the defendants attain the age of majority. Mr. Purohit contended that the plaintiffs, who had been bonafidely believing the version of the defendants, had been betrayed. They can neither be put to a disadvantageous position for the failure of the defendants to get the permission; nor can the defendants be allowed to avoid the execution of sale deed under such ploy. Learned senior counsel thus argued that in the present factual matrix, the limitation to institute the suit would commence from 5.10.1982 and not from 1968. 21. In support of his arguments Mr. Learned senior counsel thus argued that in the present factual matrix, the limitation to institute the suit would commence from 5.10.1982 and not from 1968. 21. In support of his arguments Mr. Purohit cited the following judgments:— (1) Balwant Singh v. Rajaram, reported in 1974 RLW 482; (2) M. Meenakshi v. Metadin Agarwal (dead) by LRs, reported in (2006) 7 SCC 470 ; (3) Lakshminarayana Reddiar v. Singaravelu Naicker, reported in AIR 1963 Madras 24; and (4) Balasaheb Dayandeo Naik (dead) through LRs.) v. Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC 464 . 22. Mr. Shrawan Ojha, learned counsel for the respondents defending the dismissal of the suit by the Court below urged that the terms of the agreement were clear, categorical and sacrosanct. Such terms are required to be strictly adhered to, according to which within one month of the payment of due installment(s), the balance consideration was supposed to be paid; and the sale deed to be executed. 23. He contended that as the plaintiffs had failed to offer the balance amount and call upon the defendants to execute the sale deed, within the stipulated period of one month from the payment of the installment(s), the plaintiffs cannot maintain the suit for specific performance after 3 years of the cause of action, which apparently arose to them in February, 1968. Mr. Ojha pointed out that there is no documentary evidence such as notice or mutual consent to extend the time for performing the contract etc. and even the statement of PW-1 Ajayab Singh does not indicate much less establish anything, worth bringing the suit within the limitation. 24. He emphasised that as stated in para No. 8 of the written statement, there was no requirement of getting the consent of the competent officer, and even if the same was required, the sale deed could be got executed and the transaction, ratified. He submitted that the last installment was paid on 08.01.1968, whereas Harbansh Lal had died in 1966, which unravels the falsehood of the stand of the plaintiffs. He contended that plaintiffs have miserably failed to prove the story, which they had projected; while maintaining that even if such stance of the plaintiffs is accepted, the same cannot enlarge the period of limitation, dehors the express terms of the agreement. 25. He contended that plaintiffs have miserably failed to prove the story, which they had projected; while maintaining that even if such stance of the plaintiffs is accepted, the same cannot enlarge the period of limitation, dehors the express terms of the agreement. 25. I have heard learned counsel for the rival parties and perused the material available on record, including the testimony of plaintiffs' witnesses PW-1 Ajayab Singh; PW-2 Uttam Singh; PW-3 Kartar Singh; PW-4 Shyam Lal; and PW-5 Khema Ram. Out of the five witnesses aforesaid, brought by the plaintiffs, statements of PW-1 Ajayab Singh alone are relevant for the present purposes, inasmuch as PW-2 Uttam Singh and PW-3 Kartar Singh were the attesting witnesses and PW-4 was the scriptor or deed writer of the agreement, while PW-4 Khema Ram was only brought as a witness to show the possession of the plaintiffs. 26. A look at the statement of PW-1 Ajayab Singh — plaintiff No. 1, reveals that as per his version, after the payment of the installments, he had requested Shiv Lal to execute the sale deed, who in turn stated that sons of Harbansh Lal except the eldest son were minor and as and when they would become major, the sale deed would be executed in their favour. PW-1 states that before 15 days of filing of the suit, when they contacted the defendants, they demanded a sum of rupees one lac, failing which they would execute the sale deed in favour of someone else. Ajayab Singh had also deposed that the sale deed could not be executed for want of permission from the Collector. 27. During the course of cross-examination, PW-1 had admitted that all the installments had been paid in the year 1968 and within a month of payment of the installments, he had asked Shivlal to execute the sale deed, but he took an excuse of getting permission from the competent officer and did not execute the sale deed. In the same breath, he further stated that he had been pursuing Shivlal and Satish to get the permission from the competent officer and he had even got defendants' signatures on the requisite papers, but the permission could not be obtained, as they refused to give money to the Patwari. 28. In the same breath, he further stated that he had been pursuing Shivlal and Satish to get the permission from the competent officer and he had even got defendants' signatures on the requisite papers, but the permission could not be obtained, as they refused to give money to the Patwari. 28. The tenor of the testimony of Shivlal, leaves no room for ambiguity that the permission of the competent officer was understood or implied to be obtained by the plaintiffs. It will not be out of context to reproduce the relevant part hereinbelow:— ^^fd'rs lu~ 1968 esa geus Hkj nh Fkh tks lu~ 1968 esa csckd gks xbZ Fkh fd'rsa geus gh Hkjuh Fkh muds pkyku o jlhnsa xqe gks xbZA lun ykus ds fy;s geus f'koyky dks o lrh'k dks dgk buds lun ÁkIr djus ds fy;s nj[okLrksa ij gLrk{kj Hkh djok;s ysfdu iVokfj;ksa dks iSls ugha fn;s blfy;s bUgsa lun ugha nhA** 29. The excerpt reproduced above clearly reveals that the plaintiffs were conscious of this fact that the sale deed could not be executed for want of permission, for which they had got the relevant papers signed from the defendants, yet could not and did not obtain the consent. If the plaintiffs failed to obtain the consent from the Collector or they were aware that the defendants were not cooperating for execution of the sale deed or even avoiding the execution, they were required to come into action, or bring the suit immediately or at least within three years of payment of due installments i.e. by 1971. Neither in the plaint nor in the statements of PW-1, it has been stated that when did they offer the remaining amount of Rs. 857/- to the defendants and requested them to execute the sale deed. 30. A bare look at the terms of the agreement shows that the plaintiffs were required to offer the remaining amount of Rs. 1,000/- (or Rs. 857/-), within one month of the last payment of installment, which admittedly had been made in January, 1968. That being the position, it was incumbent upon the plaintiffs to have offered the amount of Rs. 857/-, within one month from 08.01.1968 and also to call upon the defendants to execute the sale deed; by way of sending letter or notice. 857/-), within one month of the last payment of installment, which admittedly had been made in January, 1968. That being the position, it was incumbent upon the plaintiffs to have offered the amount of Rs. 857/-, within one month from 08.01.1968 and also to call upon the defendants to execute the sale deed; by way of sending letter or notice. The plaintiffs having failed to do so, were required to bring the suit within three years of such point of time i.e. by February, 1971, if they wanted their rights to be enforced by the Courts of Law. Article 54 of the Limitation Act clearly stipulates that a suit for specific performance has to be filed within a period of three years of the date fixed for performance of the agreement and if no such date is mentioned in the agreement, then within three years of the refusal. 31. Upon appraisal of the facts obtaining in the instant case, I am prima facie of this view that the suit filed by the plaintiffs was time barred; as the time for performance of the contract was fixed, viz. “within one month of the payment of the installments:”, which admittedly had taken place on 08.01.1968. 32. Now I proceed to deal with the judgments cited by Mr. Purohit in support of his case; to examine, as to whether the judgments cited by him hold the view otherwise or can they persuade me to change my first flush view, in the backdrop of the facts proved. (1) Balwant Singh v. Rajaram, reported in 1974 RLW 482. While citing the above judgment, Mr. Purohit canvassed that the agreement like the one, at hand, is not a contingent contract. He referred to para 10 of the judgment, which is being reproduced hereunder:— “10. The undertaking of the defendant that he shall obtain the sanad after depositing the amount due to the government is enforceable under the terms of the agreement even if the defendant had committed default in depositing the outstanding dues and in obtaining the sanad. Sec. 13(b) of the Specific Relief Act, 1963 can usefully be referred to in this connection, which says that where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence. Sec. 13(b) of the Specific Relief Act, 1963 can usefully be referred to in this connection, which says that where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence. I think the Court has power and jurisdiction under Sec. 13(b) of the Specific Relief Act, 1963, to compel the defendant to take steps and obtain the sanad in respect of the land agreed to be sold by him. The learned Additional District Judge, in the circumstances, rightly passed a decree in the manner in which he did.” A perusal of the facts of the case aforesaid reveals that the core issue before the Court was as to whether the defendant having undertaken to obtain the Sanad within four months from the date of agreement, could be asked to obtain a Sanad. This Court while rejecting the appeal against a decree of specific performance granted by the trial Court held that such a decree could be granted. However, in the present case, the facts are entirely different; neither there was any express condition requiring obtaining of the ‘Sanad’ by the defendants nor is the question of passing of such decree is involved in the present case. In the case at hands, involving the issue of limitation, this case hardly lends any help to the appellants. (2) M. Meenakshi v. Metadin Agarwal (dead) by LRs, reported in (2006) 7 SCC 470 . Having gone through the judgments in juxtaposition with the facts and law involved in the present case, this Court is at a loss to comprehend, as to how this judgment is applicable in the facts extant, much less being profitable to the plaintiffs by whatever stretch. (3) Lakshminarayana Reddiar v. Singaravelu Naicker, reported in AIR 1963 Madras 24. Reading Para 11 of the judgment and Head Note (9), Mr. Purohit contended that a cause of action arises to a party when the obligator is in a position to perform his promise and till such date, no cause of action arises. Equating the facts of the judgment aforesaid, Mr. Reading Para 11 of the judgment and Head Note (9), Mr. Purohit contended that a cause of action arises to a party when the obligator is in a position to perform his promise and till such date, no cause of action arises. Equating the facts of the judgment aforesaid, Mr. Purohit contended that cause of action to institute a suit accrued to the plaintiffs only on 5.10.1982, when the defendants refused to execute the sale deed, till then the cause of action did not accrue, as the requisite permission was not available with the defendants. The position of law as enunciated vide the aforesaid judgment cannot be disputed. A close book thereat reveals that the Madras High Court in the said judgment found that the period of time began to run only from 08.01.1953, till the sale of the property in question being mortgaged property was set aside by the District Judge on 08.01.1953. A careful reading of the facts narrated in para No. 3 of the judgment aforesaid reveals that the parties to the agreement had mutually agreed to extend the time for execution of the sale deed, pending disposal of the appeal in the High Court. In other words, the parties with consent and by their conduct had extended the period of execution of the contract. As against the facts of the case before Madras High Court, there is neither any express extension or implied acceptance by the contracting parties to extend the time for performing the contract. The plaintiffs have failed to establish that there was an express or implied obligation upon the defendants to obtain permission from the competent authority or the Court. Merely because the permission of the Collector was not obtained and also because the defendants No. 4 to 8 were minor, the period cannot be said to have been extended, particularly in absence of any such stipulation in the agreement. (4) Balasaheb Dayandeo Naik (dead) through LRs.) v. Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC 464 . The aforesaid judgment cited by Mr. Purohit is also not relevant in the present facts, which are starkly different from the facts of the case before Hon'ble the Supreme Court. (4) Balasaheb Dayandeo Naik (dead) through LRs.) v. Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC 464 . The aforesaid judgment cited by Mr. Purohit is also not relevant in the present facts, which are starkly different from the facts of the case before Hon'ble the Supreme Court. In the case before the Apex Court, the trial Court had decreed the suit filed by the plaintiff, inter alia holding that the time was an essence of the contract, keeping in view the agreement dated 31.7.1985, which required the defendants to execute the sale deed within a period of six months; the plaintiff had offered and was ready with the balance amount, but the defendants avoided to receive the balance amount of consideration. But this is not the fact situation in the case at hands. This Court is unable to fathom its bearing or relevance in the factual backdrop of the present case, wherein the suit had been dismissed on the ground of limitation. The judgments cited by Mr. Purohit neither guide on the questions involved, nor do they glide this Court away from the view, it has firstly formed; based on the factual matrix of the case, coupled with the fundamental statutory provisions and principles. 33. The agreement dated 08.01.1963 is categoric and crisp, and the same contains a clear clause that the sale deed will be executed within one month of the last payment of the installment(s). 34. According to this Court, the terms of the agreement between the parties are final and binding. Courts cannot add, subtract or imply something more than the express written terms, unless the parties involved, by way of cogent evidence prove that such terms were amended/modified by mutual consent or conduct. No evidence to this effect has been brought by the plaintiffs. Not only that the contents of para No. 21 were after-thought, but the plaintiffs have also failed to establish such assertion. 35. After delving into the facts, pleadings and evidence of the instant case, I am of the firm view that it was incumbent upon the plaintiffs to have offered the remaining amount of Rs. 857/-, within one month from 08.01.1968 and either get the permission or persuade the defendants to get the same; if they believed that it was sine qua non for the execution of the sale deed. 857/-, within one month from 08.01.1968 and either get the permission or persuade the defendants to get the same; if they believed that it was sine qua non for the execution of the sale deed. The plaintiffs having failed to do so and having neglected/omitted to take any action within three years of the last payment of installments, are themselves to be thanked or blamed. They are the persons responsible for letting the limitation lapse. 36. The suit in question was per se barred by limitation and has been rightly held so, by the Court below, vide its judgment and decree under challenge. There is no force in the appeal, for which it is rejected. Parties are left to bear their own costs.