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Babu Saseendranathan Nair v/s Ganga Bai

    RSA. Nos. 630 & 1290 of 2010 (G) in AS. Nos. 257 & 267 of 2007 In OS. Nos. 326 of 2002 & 672 of 2004

    Decided On, 07 December 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P. SOMARAJAN

    For the Petitioner: M.R. Rajendran Nair, Sr. Advocate, M.R. Hariraj, Nirmal V. Nair, P.A. Kumaran, S. Suraj, Advocates. For the Respondents: K.P. Sujesh Kumar, Advocate.



Judgment Text

1. These are the two appeals preferred against the concurrent findings rendered by both the Trial Court (I Addl. Sub Court, Thiruvananthapuram) in O.S.Nos.326/2002 and 672/2004 and the First Appellate Court (District Court, Thiruvananthapuram) in A.S.Nos.257/2007 and 267/2007 by the defendant in the leading case in O.S.326/2002. The parties herein below referred in their status in the leading case in O.S.326/2002.

2. The leading case in O.S.326/2002 is for specific performance of the contract for sale based on an agreement dated 16/4/1990, Ext.A1. The defendant had agreed to give approximately 16 cents of property, after excluding the portion of property acquired out of 29 cents, at the rate of Rs.7,000/- per cent, but no specific period was

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either entered or endorsed. Initially, an amount of Rs.75,000/- received by way of advance out of the sale consideration. There were subsequent payments. Total amount paid, comes to Rs.1,10,900/. The total sale consideration for 16 cents would come to Rs.1,12,000/-.

3. Execution of Ext.A1 agreement is admitted. The main contention is that the agreement was never intended to be acted upon and that the present suit stood as hopelessly barred by limitation. These two contentions were rejected by both the Trial Court as well as the First Appellate Court.

4. Regarding the first contention, initially an amount of Rs.75,000/- was received out of sale consideration. There were subsequent payments and total amount paid out of sale consideration comes to Rs.1,10,900/- as against the agreed amount of Rs.1,12,000/- for an extent of 16 cents. If it was actually not intended to be acted upon it must have find a place in Ext.A1 agreement at least during the time in which subsequent payments were made. The finding rendered by both the Trial Court and the First Appellate Court rejecting the abovesaid contention, hence deserve no interference.

5. Regarding the question of limitation, no period is made mentioned or agreed upon in Ext.A1 agreement. When there is no specific period agreed, the second limb of Article 54 of Limitation Act would come into play. Otherwise, the first limb would govern the area. The time available under Article 54 of Limitation Act for specific performance of a contract is three years from the date fixed for the performance or, if no such date is fixed, when the plaintiff has notice that performance is refused. The recital contained in Ext.A1 agreement would show that the parties have agreed to perform the contract on rectification of revenue records by mutating the property. Admittedly, the property was mutated in the year 1993-94, but the suit was filed only in the year 2002, 8 years long after the date of mutation.

6. The question now came up for consideration is whether the recital contained in Ext.A1 agreement would satisfy the requirement under first limb of Article 54 of the Limitation Act or it would fall under the second limb.

7. The learned counsel for the appellant relied on the legal proposition laid down in Ramzan v. Hussaini ((1990) 1 SCC 104),Tarlok Singh v.Vijay Kumar Sabharwal ((1996) 8 SCC 367) and Brahmanand v. Muthugopal (2005 KHC 1840) in support of his argument.

8. In Ramzan's case (supra) there is a specific agreement that on the date of redemption of mortgage, the sale deed will be executed. The parties have agreed to execute the sale deed on the date of redemption of mortgage. It stands for fixation of a particular time or date for the performance of the contract on happening of a future event. In other words, the parties have agreed to perform their respective part of contract fixing the date of discharge of a liability over the property as the time/period for performance of the contract and hence, it would fall under first limb of Article 54 of the Limitation Act.

9. In Tarlok Singh's case (supra), there is a specific understanding in the agreement stipulating that the sale deed must be executed within fifteen days from the date of order vacating injunction granted in a suit and it was held that the limitation would begin to run after fifteen days from the date of dismissal of review petition which ultimately decides the order vacating injunction. There is a specific agreement that within fifteen days from the date of vacation of injunction order, the party will execute the document of sale.

10. In Brahmanand's case (supra), the date of execution of agreement was subsequently altered by issuing a letter which was accepted by the other party by which no specific time was agreed upon.

11. But, in the instant case, no time was fixed but only stated that the seller should satisfy one of the obligation attached with the property, before getting the sale deed executed. A mere perusal of the clause in Ext.A1 agreement would show that the seller agreed to rectify the revenue records pertaining to the property and to mutate the property. It is also recited that the sale deed will be executed only after rectification of the revenue records by effecting mutation. But, nowhere it is stated that the parties have agreed to execute the sale deed either on the date of rectification of revenue records by effecting mutation or any subsequent date by referring any period. In the absence of any such clause, the contract would fall under the second limb of Article 54 of the Limitation Act and the time began to run only from the date when the plaintiff has notice that the performance is refused. A mere incorporation of an undertaking that a liability over the property will be discharged or any defect, either in its title or otherwise, will be rectified and the document of conveyance will be executed thereafter will not itself refer any period or time fixed for performance of the contract so as to bring the matter within the purview of first limb of Article 54 of the Limitation Act. But it discloses only the liability/obligation on the part of seller to perform a particular obligation agreed upon and it would always fall under the second limb of Article 54 of the Limitation Act and the time began to run for specific performance of contract only from the date on which the plaintiff has notice that performance is refused. But, when there is a specific agreement to perform the contract by fixing any period from the date of discharge of the said obligation, though in future, it would come under the sweep of first limb to Article 54 and the time began to run from the date/period so fixed, though depends on a future event to be happened.

12. Yet another contention was also raised that even after the mutation no demand for performance of the contract was raised. When the parties are at variance the question of refusal would come into play. In the instant case, the parties are related and they were in good terms maintaining a cordial relationship and hence, the non demand for performance of contract immediately after the mutation on account of the cordial relationship may not be sufficient to bring the matter within the expression 'refused' as envisaged under the second limb of Article 54 of the Limitation Act.

13. Mere knowledge of the mutation effected or the right accrued from that day onwards to claim performance of the contract cannot be substituted in the place of 'refusal' to perform contract and notice thereof which stands on a different pedestal. As such the decree and judgment of both the Trial Court and the Appellate Court in the leading case and the connected case deserve no interference.

Appeals fail, hence dismissed.
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