JUDGMENT : (A.S. Supehia, J.) 1. The present first appeal has been filed under Section 96 read with Order 41 Rule 1-2 of the Code of Civil Procedure, 1908 assailing the judgment and order dated 22.12.2008 passed by the Principal Senior Civil Judge at Bardoli, District Surat wherein and whereby, the Trial Court has dismissed the suit filed by the present appellants – original plaintiffs for specific performance in respect of piece of non-agricultural land bearing Revenue Survey No.174, ad-measuring 14,683 sq. mtrs., situated at Village Tantithaiya, Taluka : Palsana, District : Surat against the respondent – original defendant. 2. Brief facts: The parties are addressed as per their original status in the suit. 2.1 The Plaintiff No.1 is a Limited Company and the Plaintiff Nos. 2 and 3 are the Directors of the Company. The Company is situated on non-agricultural land having Block No.182, village : Jodva, Taluka : Palsana, District Surat. 2.2 On the southern side of the Company, pieces of two separate non-agricultural lands ad-measuring 12537.37 sq.mtrs. and 2145.63 sq. mtrs., total 14,683 sq. mtrs are situated on Revenue Survey No.174 at Village : Tantithaiya, Taluka : Palsana, District : Surat. The defendant is the owner of the said non-agricultural land. 2.3 It is the case of the plaintiffs that in the month of September, 2001, the defendant orally agreed to sell the said land in favour of the plaintiffs at the rate of Rs.250 per sq. mtrs., for a total sum of Rs.36,70,749/-. As per the oral agreement dated 28.08.2002 between parties, the defendant was first required to execute the Sale Deed in respect of land ad-measuring 12573.37 sq.mtrs and thereafter for the land admeasuring 2145.63 sq. mtrs., for total sale consideration of Rs.36,70,749/-. It is asserted by the plaintiffs that they had paid Rs.4,00,000/- as earnest money and also paid remaining consideration by three post dated cheques (i) dated 16.02.2002 for Rs.5,36,407/-, (ii) dated 18.02.2002 for Rs.10,00,000/-; and (iii) dated 28.02.2002 for Rs.17,34,342/-. 2.4 Since, the oral agreement did not fruictify, and there was dispute between the parties, the same led to filing of the suit for specific performance. Upon dismissal of the same, the present appeal is filed by the plaintiffs. SUBMISSION ON BEHALF OF THE PLAINTIFFS: 3. 2.4 Since, the oral agreement did not fruictify, and there was dispute between the parties, the same led to filing of the suit for specific performance. Upon dismissal of the same, the present appeal is filed by the plaintiffs. SUBMISSION ON BEHALF OF THE PLAINTIFFS: 3. Learned advocate Mr.N.V.Gandhi, appearing for the plaintiffs has submitted that the Trial Court has fallen in error in rejecting the suit by observing that the plaintiffs did not show readiness and willingness to perform their part of agreement to sale. It is submitted that the plaintiffs were ready and willing to perform their part of contract hence, the bar of Section 16(C) of the Specific Relief Act, 1963 (the Act of 1963) will not be attracted. 3.1 While placing reliance on the judgment of the Trial Court, learned advocate Mr.Gandhi has contended that in fact, the plaintiffs were put in possession by the defendant after obtaining aforementioned amount. While referring to the provisions of Section 53 of the Transfer of Property, 1882 (“T.P.Act” in short) learned advocate Mr.Gandhi, has submitted that the Trial Court has failed to appreciate the terms of the oral agreement between the plaintiffs and the defendant with respect to the suit land. It is submitted that the oral contract between the parties has been proved by evidence, hence the suit could not have been dismissed. It is submitted that the plaintiffs performed their part of contract by issuing cheques in favour of the defendant for total consideration of the suit land and, when subsequently it was noticed that the part of the suit land was mortgaged by the defendant, they had no other alternative, but to stop the payment of the cheques issued on 27.09.2001. It is thus submitted that the Trial Court has failed to appreciate the said fact and contrary to the evidence, it held that the plaintiffs were not ready and willing to perform their part. It is submitted that on the contrary the defendant has refused to perform their part of his contract. 3.2 Learned advocate Mr.Gandhi, has further submitted that the Trial Court has also fallen in error in holding that the suit is barred by limitation. It is submitted that since the plaintiffs were in physical possession of the suit land, the suit could not have been dismissed on the ground of limitation. 3.2 Learned advocate Mr.Gandhi, has further submitted that the Trial Court has also fallen in error in holding that the suit is barred by limitation. It is submitted that since the plaintiffs were in physical possession of the suit land, the suit could not have been dismissed on the ground of limitation. 3.3 Learned advocate Mr.Gandhi, has further submitted that on the date of transaction, the plaintiffs paid an amount of Rs.4,00,000/- also three post dated cheqeus, as mentioned hereinabove, pursuant to which the defendant was put in possession of the suit land and accordingly, they had also made construction on the suit land, which has been observed by the Trial Court. It is submitted that it is specifically recorded by the Trial Court that there is no dispute that in view of the oral contract and in furtherance of the same, the plaintiffs paid Rs.4,00,000/- on 28.09.2001. It is submitted that after the plaintiffs were put in possession, they had put RCC construction over the suit land, incurring expenditure to the tune of Rs.25,00,000/-, hence it cannot be said that the plaintiffs were not willing and ready to perform the contract. Thus, it is submitted that the impugned judgment and order may be set aside. In the alternative, it is submitted that in case, the Court is not inclined to pass the order in favour of the plaintiffs, the defendant may be directed to refund the expenditure and the earnest money to the appellants – plaintiffs. In support of his submissions, learned advocate Mr.Gandhi, has placed reliance on the judgment of the Apex Court in the case of Urvashi Aggarwal Vs. Kushagr Ansal, AIR 2019 SC 1280 . SUBMISSIONS ON BEHALF OF THE DEFENDANT: 4. Vehemently opposing the aforesaid submissions, learned senior advocate Mr.Devan Parikh, appearing with learned advocate Mr.Mrugen K. Purohit, has submitted that the impugned judgment and order does not require any interference since the same is appropriately passed. 4.1 Learned senior advocate has further submitted that in fact, there is a written agreement between the parties and assuming that the plaintiffs had paid an earnest money of Rs.4,00,000/- on 28.09.2001 along with three post dated cheques of Rs.32,70,749/- of which the payment was stopped by the plaintiffs, it can be said that they were not willing to pay the remaining amount. It is submitted that in fact, the defendant had also filed a criminal complaint against the plaintiffs for stopping the payment. It is submitted that a notice below Exh.62 was issued by the defendant to the plaintiffs under the provisions of Section 138 of the Negotiable Instruments Act (the N.I. Act) and the reply was given by the plaintiffs vide Exh.63 on 31.08.2002 and on the failure of such execution, a criminal complaint against the plaintiffs was filed at Surat below Exh.64. While referring to the reply below Exh.63, learned senior advocate Mr.Parikh, has submitted that in fact, the plaintiffs had given 7 days from 31.08.2002 for executing the necessary sale deed, however the plaintiffs did not file the suit. It is submitted that in case, non-performance of contract was noticed by the plaintiffs after the period of 7 days from the reply of the notice dated 31.08.2002, the suit could have been filed by the plaintiffs immediately, however the same is filed after a delay of 4 years and hence, the suit would be hit by the Article 54 of the Limitation Act, 1963 as the period of limitation would start running from the date of first refusal. It is submitted that when the plaintiffs gave a reply by Exh.63 on 31.08.2002 and after deducting the period of 7 days, the period of limitation will start from 07.09.2002 and the suit could have been filed latest by the end of 2005, however the suit is filed in the year 2006 which is beyond the period of limitation and hence, the Trial Court has precisely held that the suit was barred by limitation. While referring to the decision of the Supreme Court in the case of Vasanthi vs. Venugopal, (2017) 4 SCC 723 , it is submitted that as per the provisions of Section 53A of the T.P. Act, there has to be a contract in writing and all the conditions mentioned therein are required to be fulfilled in order to get protection under the said provision. It is submitted that in the present case, it is an admitted fact that there was no written contract between the plaintiffs and defendant hence, the plaintiffs are not entitled to the protection under Section 53A of the T.P. Act. It is submitted that in the present case, it is an admitted fact that there was no written contract between the plaintiffs and defendant hence, the plaintiffs are not entitled to the protection under Section 53A of the T.P. Act. It is submitted that it is the case of the plaintiffs that they are still in possession however they did not file any suit in this regard. While placing reliance on the judgment Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suravanshi, 2002 (3) SCC 676 , it is contended by the learned senior advocate Mr.Parikh that a person obtaining possession of the property in part performance of an agreement to sale can defend his possession in a suit for recovery of possession filed by transferor or by the subsequent transferee of the property claiming under him, even if a suit for specific performance of agreement to sale stood barred by limitation. However, it is submitted that once a suit for specific performance of the agreement to sale is dismissed on the ground that the agreement purchaser is not ready and willing to perform his part of agreement the possession of the said agreement purchaser cannot be protected. 4.2 It is submitted that the plaintiffs have not claimed relief of possession even after dismissal of the suit and hence, they are not entitled to any relief of protecting the possession of the suit property, after the suit for specific performance of contract of sale is rejected. 4.3 Reliance is also placed by the learned senior advocate Mr.Parikh on the judgment of the Supreme Court in the case of Revanasiddayya Vs. Gangamma Alias Shashikala and another, (2018) 1 SCC 610 . 4.4 Learned senior advocate Mr.Devan Parikh, has submitted that in fact, the possession of the suit property by the plaintiffs itself is in dispute since the plaintiffs were only granted permission to enter into the suit property, do some construction and merely because they were permitted to do construction, the same would itself not amount to giving the actual possession. It is submitted that even if assuming that the plaintiffs were put in possession temporary for construction on the land, the suit is precisely dismissed since the plaintiffs were not ready and willing to perform the contract by stopping the payment of the post dated cheques. It is submitted that even if assuming that the plaintiffs were put in possession temporary for construction on the land, the suit is precisely dismissed since the plaintiffs were not ready and willing to perform the contract by stopping the payment of the post dated cheques. 4.5 Finally, on instructions, it is submitted by the learned senior advocate that the defendant is ready and willing to return the amount of Rs.25,00,000/- i.e. the expenditure of the RCC construction done by the plaintiffs in the suit property. ANALYSIS AND CONCLUSION: 5. As noted in the preceding paragraphs, since the suit filed by the plaintiffs (appellants) seeking specific performance of the contract was dismissed, the present first appeal is filed. Alternatively, a direction is also sought to execute the sale deed in favour of the plaintiffs. 6. It is not in dispute that there is no written contract between the parties and it is the case of the plaintiffs that they have entered into oral agreement for the sale of land admeasuring 14,683 sq. mtrs at the rate of Rs.250/- per sq. mtrs., and accordingly, total amount of Rs.36,70,749/- was fixed between the parties. Such oral agreement has been entered in the month of September, 2001. Section 9 of the Transfer of Property Act essentially mandates that a transfer of property may be made without writing in every case in which writing is not expressly mentioned/required by law. The plaintiffs have to prove about consensus ad-idem between the parties and the oral agreement was concluded, and he has to prove the vital terms of such an oral contract while seeking decree for specific performance of such contract. 7. From the deposition of the defendant recorded below Exh.248 it is manifest that there was an oral agreement between the parties for sale of the aforementioned suit land bearing survey no.174 of village Tantithaya, Tal.Palsana, District :Surat, admeasuring 13,491 sq.mtr at the rate of Rs.400/- per sq.mtr. which comes to Rs.53,96,000/- and he had received an amount of Rs.4,00,000/- as earnest money by a cheque from the plaintiffs on 28.09.2001, and he was also issued three post dated cheques of Punjab National Bank, which were subequently returned twice and on third occasion the payment was stopped by the plaintiffs. It also appears that the plaintiffs were also permitted to put a pipeline in the suit property. It also appears that the plaintiffs were also permitted to put a pipeline in the suit property. In his cross-examination, it is elicited that the plaintiffs have put in RCC construction in the land bearing survey Nos.172, 174 and 175. The defendant in his deposition has further asserted that when the oral agreement to sell was agreed in the month of September, 2001, none of the suit property was morgated. It is also deposed by him that he had given temporary permission to the plaintiffs to do RCC construction and laying of the pipeline. 8. The plaintiff-Director of the Company, Shri Ramprakash Chetandas Chug, has been examined at Exh.95. He has deposed that an oral agreement was made between the parties for sell of land bearing survey no.174 comprising of 12537.37 sq.mtrs and 2145.63 sq.mtrs, two parts comprising of total 14,638 sq.mtr for sale consideration of Rs.250/- per sq.mtr amounting to total sum of Rs.36,79,749/-. It is further deposed by him that the defendant has to first execute the sale deed of 12,537.37 sq.mts of land and for the rest of land of 2,145.63 sq.mtr since the land was mortgaged, the sale deed was to be subsequently executed. It is stated that an earnest money of Rs.4,00,000/- through cheque was paid to the defendant, but he did not execute the sale deed. It is further deposed that since the defendant had mortgaged the suit property, the stop payment of cheques was ordered. 9. The case of the plaintiff hinges on the assertion that since the defendant had mortgaged the suit property. The mortgage deed, (Exh.85) which has been executed by the defendant in favour of Sarvodaya Bank for Rs.1,30,00,000/-.- of land bearing survey nos.172, 175 and 174 admeasuring total area of Rs.32,374.97 sq.mtr out of which the defendant mortgaged the land of 14,125.38 sq.mtr. Thus, the remaining land of 18,249.59 remained with the defendant. It is pertinent to note that the mortgage deed, (Exh.85) is executed on 13.11.2001, subsequent to the oral agreement of September, 2001. As per the oral evidence of the plaintiffs Exh.60 and Exh.95, the agreement to sell was for total 14638 sq.mtr of land for sale consideration comprising of two parcels of land being 12,537.37 sq.mtr of land and 2145.63 sq.mtr of land. As per the oral evidence of the plaintiffs Exh.60 and Exh.95, the agreement to sell was for total 14638 sq.mtr of land for sale consideration comprising of two parcels of land being 12,537.37 sq.mtr of land and 2145.63 sq.mtr of land. Thus, there is apparent conflict with regard to the portion of land which was orally agreed upon to sell and the land which was mortgaged by the defendant. The plaintiffs have failed to prove the parcel of land which the defendant was suppose to clear from the mortage, whether it was 12,537.37 sq.mtr of land or 2145.63 sq.mtr of land for which they had directed to make stop payment of three cheques. The plaintiffs failed to prove that the parcel of land for which the oral agreement to sell was made was mortgaged by the defendant. The Supreme Court in the case of Brij Mohan & Others vs. Sugra Begum and Others, (1990) 4 SCC 147 , wherein a specific performance of oral agreement of sale was sought, has held thus: “20 We have given our careful consideration to the arguments advanced by learned counsel for the parties and have thoroughly perused the record. We agree with the contention of the learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.” Thus, the burden was on the plaintiffs to prove that as per the condition in the oral contract, it was obligatory on the part of the defendant to free the suit property from mortgage or the suit property which was agreed upon to sell was infact mortgaged by the defendant. 10. The facts emerging from the record are that pursuant to the aforesaid oral contract, the plaintiffs had paid an amount of Rs.4,00,000/- on 27.09.2001 towards the first installment and three post dated cheques of Rs.36,70,749/- were also issued by the plaintiffs to the defendant below Exhs.72 to 74, however they were returned by the endorsement of stop payment. The post dated cheque of 16.02.2002 appeared to be Rs.5,36,407/-, the cheque dated 18.02.2002 appeared to be of Rs.10,00,000/- and cheque dated 28.02.2002 of Rs.17,34,342/- all the three cheqeus of (Exhs.72 to 74) were returned twice for inefficient funds and for the third time, all three cheques (Exh.72 to 74) were returned with the endorsement of stopping the payment. 11. The fact can be established from Exhs.237, 238, 239 and 240. Accordingly, the defendant issued a legal notice in writing under Section 138 of the Negotiable Instruments Act, 1881 on 22.08.2000 below Exh.62, which was replied by the plaintiffs on 31.08.2022 vide Exh.63. Thereafter, a private complaint against the plaintiffs was filed by the defendant in the Court of learned JMFC, Surat below Exh.64. Criminal Cases were accordingly registered being Criminal Case Nos.719 of 2002, 720 of 2002 and 721 of 2002 below Exh.253, 254 and 255 against the plaintiffs. 12. At this stage it would be relevant to incorporate issues framed by the Trial Court. The Trial Court has framed 15 issues below Exh.41. The relevant issues would be issue Nos.6, 8 and 11. 12. At this stage it would be relevant to incorporate issues framed by the Trial Court. The Trial Court has framed 15 issues below Exh.41. The relevant issues would be issue Nos.6, 8 and 11. The Issue No.6 pertains to “whether the plaintiffs prove that they were and are ready and willing to perform their part in connection with suit agreement as alleged?” The issue No.8 pertains to “whether the plaintiffs are entitled for the specific performance of the contract as alleged?” Issue No.11 pertains to “whether the defendant proves that the suit is time barred?”. 13. The first question which falls for deliberation is that whether the plaintiffs are entitled to protection under section 53A of the T.P. Act and also have the benefit of Section 16 of the Specific Relief Act, 1963 (the Act). Section 53A of the T.P. Act and Section 16 of the Act, being of significant relevance, are extracted hereunder: “53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” (Emphasis supplied) “16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person— (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.— For the purposes of clause (c),— (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” (Emphasis supplied) 14. As held by the Apex Court in the case of Vasanthi (supra), in paragraph No.18, reads as under : - “18. As would be patent from the above quotes, the protection of a prospective purchaser/transferee of his possession of the property involved, is available subject to the following prerequisites: (a) There is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (b) The transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract; (c) The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.” 15. It is thus held by the Apex Court that a person/prospective purchaser/transferee of his possession of the property is available only on the aforesaid three prerequisites, one of which that there is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Indubitably, in the present case, there is no contract in writing between the parties. 16. In order to claim the protection under Section 53A of the Transfer Property Act, it is necessary that all three prerequisites, as mentioned hereinabove, are required to be fulfilled. Thus, the plaintiffs would not be entitled to any protection under Section 53A of the T.P. Act, as there is no written contract between them. 17. It is the case of the plaintiffs that they had stopped the payment of three cheques when it was noticed that his two properties was mortgaged by the defendant and until and unless the mortgage was removed, the plaintiffs were constrained to stop further payment. In absence of any written contract in this regard, the plaintiffs cannot seek shelter on the pretext that the defendant was required to remove the mortgage on the suit land in wake of the fact that they are unable to prove the mortage of the land for which the oral agreement to sell was understood between them. It is an admitted fact that three post dated cheques were initially returned twice on the ground of inefficient funds and on the third time, they were returned for the reason of stop payment. In view of such approach of the plaintiffs, the defendant was constrained to file a criminal complaint. It is also not in dispute that during the pendency of the suit also, no attempt was made by the plaintiffs to perform their part for paying the rest of the amount as orally agreed between the parties. Nothing is forthcoming from the evidence, which has surfaced on record that the plaintiffs were ready and willing to perform the part of third contract. Even assuming that they were put in possession and they had undertaken construction, the same will not in any manner come to their rescue, in wake of the fact that they were not willing to perform the part of the contract. Even assuming that they were put in possession and they had undertaken construction, the same will not in any manner come to their rescue, in wake of the fact that they were not willing to perform the part of the contract. It is well settled proposition of law that in a suit for specific performance of a contract for sale, it has to be proved that the plaintiffs, who are seeking a decree for specific performance of the contract for sale must always be ready and willing to complete the terms of the agreement for sale, and that he has not abandoned the contract and his intention is to keep the contract subsisting till it is executed and for the grant of such decree, the issue of readiness and willingness is of utmost importance. Merely because the defendant had allowed to put up some RCC construction, the same will not eclipse his unwillingness to perform the contract. It is established that at the time of putting such construction, the plaintiffs had only paid the earnest money of Rs.4,00,000/-. Hence, the plaintiff cannot compel the defendant to execute the sale deed only on the payment of earnest money. 18. At this stage, we may also incorporate further observations made by the Apex Court in the case of Vasanthi (surpa), which read thus : - “25. This Court in Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi by Lrs. and others (2002) 3 SCC 676 , while tracing the incorporation of Section 53A in the TP Act, vide Act of 1929, acting on the recommendations of the Special Committee on the issue, had ruled that mere expiration of the period of limitation for bringing a suit for specific performance would not debar a person in possession of an immovable property by way of part performance from setting up a plea, as contemplated therein in defence to protect his possession of the property involved. It was however underlined that if the conditions precedent, as enumerated, in Section 53A of the Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. Explicitly therefore, though mere expiry of the period of limitation for a suit for specific performance may not be a bar for a person in possession of an immovable property in part performance of a contract for transfer thereof for consideration to assert the shield of Section 53A of T.P. Act, it is nevertheless imperative that to avail the benefit of such protection, all the essential pre-requisites therefor would have to be obligatorily complied with. 26. In A. Lewis and another vs. M.T. Ramamurthy and others (2007) 14 SCC 87 , it was propounded that the right to claim protection under Section 53A of T.P. Act would not be available, if the transferee remains passive without taking effective steps and abstains from performing his part of the contract or conveying his readiness and willingness to that effect. 27. Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof. 28. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract. 29. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.” 19. The Supreme Court has held that if the conditions precedent as enumerated, in Section 53A of the T.P. Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. It is reiterated that it is nevertheless imperative that to avail the benefit of such protection under Section 53A of the T.P. Act, all the essential prerequisites therefore would have to be obligatorily complied with. It is held that specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. 20. The plaintiffs are also claiming the suit property by asserting that they are in possession of the suit property. It will be apposite to note the observations of the Apex Court in case of Revanasiddayya (supra), wherein the Supreme Court, while examining the provisions of Section 53A of the T.P. Act and the issue with regard to the possession of the suit land, has held thus : - “16. In our considered opinion, one of the effects of the dismissal of appellant's suit/appeal, which was filed for specific performance of the agreement, was that the appellant was not entitled to retain possession of the suit land. In other words, the possession of the appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the respondents to claim back the same from the appellant on the strength of their ownership. 17. In other words, the possession of the appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the respondents to claim back the same from the appellant on the strength of their ownership. 17. The appellant was, however, entitled to defend his possession over the suit land by taking recourse to the provisions of Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as “T.P. Act”) but once his suit for specific performance stood dismissed, the protection available under Section 53-A of the T.P. Act was no longer available to him. 18. So far as the present appeal is concerned, it does not arise out of the suit filed by the appellant against the respondents but arises out of a suit filed by the respondents against the appellant. We cannot, therefore, examine the legality and correctness of judgment/decree passed in appellant's suit/appeal but can certainly examine its effect while examining the legality and correctness of the impugned judgment. 19. In our considered opinion, the Trial Court as also the High Court were justified in declaring the respondents as owners of the suit land and were also justified in passing a decree for possession against the appellant. 20. It is for the reasons that firstly, the appellant never disputed the respondents’ ownership over the suit land and indeed rightly. Secondly, since the respondents’ late father had placed the appellant in possession of the suit land pursuant to part performance of the agreement in question (EX-P-1), the appellant could defend his possession against the true owner (respondents) on the strength of such agreement subject to his proving the requirements of Section 53-A of the T.P. Act. 21. Since the appellant's suit/appeal for specific performance was dismissed, his possession over the suit land became unauthorized. It is for these two reasons, the High Court was justified in passing a decree for possession against the appellant in relation to the suit land. We, therefore, find no justification to set aside the findings of the High Court. It is in conformity with the legal principles applicable to the fact of this case.” 21. It is for these two reasons, the High Court was justified in passing a decree for possession against the appellant in relation to the suit land. We, therefore, find no justification to set aside the findings of the High Court. It is in conformity with the legal principles applicable to the fact of this case.” 21. It is enunciated by the Apex Court that the person is entitled to defend his possession of taking recourse of Section 53A of the T.P. Act but once his suit for specific performance stands dismissed, the protection available under Section 53A of the T.P. Act would not be longer available to him and after the dismissal of suit for specific performance, he becomes an authorized and illegal occupant thereby entitling the owners of the suit land to claim back such suit property. Thus, in the present case, once the suit seeking specific performance is dismissed, the possession, if any of the plaintiffs, on the suit land can be termed as unauthorized. 22. The next issue, which falls for consideration is whether the suit was barred by limitation or not? 23. After three post dated cheques (Exh.72 to 74) were returned and stop payment was made by the plaintiff, the defendant had issued a notice to the plaintiffs below Exh.62 dated 22.08.2002 under the provisions of the Negotiable Instruments Act and the plaintiffs (vide Exh.63) replied to the said notice on 31.08.2002. A perusal of the notice below Exh.62 and the reply dated 31.08.2002 below Exh.63 reveal that the plaintiffs had directed the defendant to execute the document of the agreed suit land within a period of 7 days to the receipt of the reply (Exh.63), hence, on completion of 7 days, the intention of the defendant refusing to execute the contract was known to the plaintiffs. Thus, in the month of August, 2002, the plaintiffs were aware about the intention of the defendant of refusal to execute the sale deed in favour of the plaintiffs, despite the same, the suit has been filed in the year 2006. Thus, in the month of August, 2002, the plaintiffs were aware about the intention of the defendant of refusal to execute the sale deed in favour of the plaintiffs, despite the same, the suit has been filed in the year 2006. The cause of action for filing the suit seeking specific performance starts from the first day of refusal when the plaintiffs gave reply vide Exh.63 on 31.08.2002 and the limitation would start after the period of 7 days, which was specified in such notice i.e. from 07.09.2002 and counting three years from that suit could have been filed latest by 07.09.2005 as per the requirement of Article 54 of the Limitation Act. The defendant had also filed a criminal complaint under Section 138 of the N.I. Act against the plaintiffs below Exh.64 and the same has been filed on 25.09.2002, a bare perusal of the contents of the criminal complaint of Exh.64 reveals that the defendant had showed their intention to refuse to execute the sale deed. The plaintiffs were aware about the aforesaid criminal complaint which was filed in September, 2002, however then also, they have not filed the suit within a period of three years. As per the provisions of Article 54 of the Limitation Act, the starting point of commencement of limitation for three years would be the date of refusal, when no time is fixed and hence, as noticed hereinabove, the cause of action would arise when the plaintiffs had noticed that the defendant is not ready and willing to perform the contract even after issuance of notice below Exh.62. Hence, the suit will be barred by limitation. 24. The Trial Court has meticulously and comprehensively dealt with all the issues and hence, appreciated the evidence documentary as well as oral in its true prospective. We do not find any infirmity or illegality in the judgment and order passed by the Trial Court. However, since the statement is made before this Court, on instruction by the learned senior advocate Mr.Parikh and it is also established from the evidence that the defendant had incurred expenses of Rs.25,00,000/- in putting up RCC construction, the same shall be returned to the plaintiffs. The defendant is also directed to return the earnest money of Rs.4,00,000/- in case the same is not yet returned with 6% interest from the date of filing of the suit till realization. 25. The defendant is also directed to return the earnest money of Rs.4,00,000/- in case the same is not yet returned with 6% interest from the date of filing of the suit till realization. 25. The First Appeal fails legal scrutiny, hence the same stands dismissed. In view of disposal of the appeal, the connected applications filed therein also stand disposed of. No order as to costs. 26. Record and proceeding shall be returned to the concerned Court forthwith.

Sheena Textiles Limited v. Arunkumar Radhakrushna Agrawal