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2007 Supreme(Kar) 562
2008 (4) KLO 2800
IN THE HIGH COURT OF KARNATAKA
Subhash B. Adi, J.
Regular First Appeal No. 1403 of 2004
M. Ponnuswamy - Appellant
Vs.
M. Thamarai Kannan and Another - Respondents
Decided on 3-9-2007
Appellant: Sri J.M. Rajanna Shetty and M/s. Belliappa Associates, Advs.
Respondent: M/s. Rego and Rego, Advs.
Result: Appeal allowed.
Headnote:(A) Specific Relief Act, 1963 - Section 20 - Limitation - Agreement of sale of immovable property - If there is a date fixed in contract, then that date would be starting point of limitation and within three years from said date, suit is required to be brought - If no date fixed, it is date on which defendant refuses to perform his part of contract.
Held: Article 54 of the Limitation Act provides that if the date is not fixed, then it is the date of refusal. Refusal requires demand by the plaintiff and if the demand is refused, that gives the cause of action. The plaint does not show as to when the demand was made by the plaintiff for registering the sale deed to his favour. If the plaintiff was waiting for the embargo to be lifted by the Government, the burden is on the plaintiff to show that there was embargo and it had prevented the plaintiff from seeking registration of the sale. In the absence of any evidence, relying on the averment made that the plaint, even if it is not specifically denied, it does not mean that the limitation gets extended in favour of the plaintiff. Ex. P. 1 also stipulates that in the event defendant 1 fails to execute the sale deed before 15-7-1981, the plaintiff is entitled for penalty of Rs. 30,000/-, assuming that the penalty stipulated in the Ex. P. 1 is in addition to the execution of the sale deed, what prevented the plaintiff to sue the defendant 1 when he did not execute the sale deed before the date.
The fact that the plaintiff has not chosen to demand the registration of sale deed for 19 years, whether at this juncture, granting decree for specific performance is justified. Limitation is prescribed under Article 54 so as to make the parties to sue for specific performance well-within time or in a time when cause of action really accrues. Plaintiff having not chosen to exercise his right well-within time or even immediately after the alleged embargo is lifted and in view of the relationship of the plaintiff and the defendants, being that of the brothers and the defendant 1 being in possession of suit peroperty, coupled with the evidence of D.W.2, who is one of the party to the agreement, who in his evidence has stated that, in the interest of the family member, he did not file the suit. These circumstances do show that the plaintiff did not choose to file the suit immediately thereafter because of the relationship of the parties and the family interest might have been one of the circumstances, which had prevented the plaintiff from suing. Having not chosen to exercise his right for 19 years, in my view, the suit is barred by time as stipulated under Article 54 of the Limitation Act. Even undisputedly the plaintiff has not made demand for registration of the sale deed clearly shows that plaintiff did not choose to file a suit within limitation.
The Trial Court was not justified in decreeing the suit by not considering the limitation, delay, equity and the relationship of the parties. (Para 30,35,40)
(B) Specific Relief Act, 1963 - Section 20 - Ready and willingness - Plaintiff paying entire sale consideration - There is nothing to prove readiness - But failing to lead evidence as to what steps he had taken to get sale deed executed in his favour - Plainitff admitting that defendant is in possession - Thus, in equity also he is not entitled to any relief.
(C) Specific Relief Act, 1963 - Section 20 - Part performance - Receipt showing that plaintiff was put in possession - But this part performance does not mean that plaintiff is absolved from other obligations - Part performance only protects possession of plaintiff, however, it requires that, plaintiff should show his readiness and willing to perform his obligation.
(D) Specific Relief Act, 1963 - Section 20 - Specific performance - Suit for - Is a discretionary relief to be granted based on facts and circumstances of case.
Subhash B. Adi, J.
This is 1st defendant’s appeal against the judgment and decree dated 14-10-2004 in O.S. No. 15171 of 2000. 1st respondent is the plaintiff. 2nd respondent is defendant 2.
2. Suit is one for specific performance of the contract by executing the sale deed in favour of the plaintiff in respect of suit site bearing No. 78 in Sy. No. 106 of Kodihalli Village, H.A Sanitary Board, Varthur Hobli Bangalore South Taluk and No. K formed out in Southern portion of Sy. No. 105/A of Kodihalli Village, Varthur Hobli, Bangalore South Taluk.
3. Case of the plaintiff is that, 1st defendant entered into an agreement of sale dated 10-9-1980 in respect of suit schedule property for consideration of Rs. 15,000/- and advance amount of Rs. 5,000/- was paid on the date of agreement and balance of Rs. 10,000/- was agreed to be paid in installments of Rs. 1,000/- every month till 15-7-1981. Plaintiff paid all the amount as agreed. On receipt of final payment of sale consideration, the 1st defendant delivered vacant possession of the suit schedule property to the plaintiff and 2nd defendant. The 2nd defendant was one of the agreement holder along with the plaintiff, but he abandoned his rights. Plaintiff constructed the house over the suit schedule property by investing Rs. 45,000/-. The construction was completed in the year 1983. However, 1st defendant being lineal descendent of plaintiffs mother Smt. A.L. Rajammal who was living with the plaintiff used to visit the suit schedule property and the mother died on 28-4-1999. At the time of demise of the plaintiffs mother, defendant 1 was in occupation of the suit schedule property with the plaintiffs mother as a licensee. He promised to vacate and redeliver the suit schedule property to the plaintiff. The plaintiff was always ready and willing to perform his part of the contract. The defendant did not perform his part of the contract. Further there was a ban of sale till 1998. The cause of action accrued to him when the defendant 1 refused to redeliver the possession of the suit schedule property. On these averments, the plaintiff sought for decree for specific performance.
4. 1st defendant contested the suit by filing written statement inter alia denying the allegations made in the plaint and alleged that, the last installment was to be paid on 15-7-1981. The cause of action for the plaintiff accrued in the year 1981 and the limitation commenced from July 1981 and the suit should have been file within three years i.e., by the end of 14-7-1984 and alleged that, the suit is barred by limitation. Defendant 1 also alleged that, plaintiff never called upon the defendant 1 for execution of the sale and plaintiff was never ready and willing to perform his part of contract. It is also alleged that, the suit is liable to be dismissed under Order 7, Rule 11 of the CPC, as suit being barred limitation, is not maintainable. It is also alleged that, the agreement was in favour of plaintiff and defendant 2 and defendant 2 having not filed the suit, the plaintiff alone cannot maintain the suit and suit is required to be dismissed on the said ground also. Further, it is alleged that the suit filed after nearly 16 years from the date of agreement and the said suit is liable to be dismissed not only on the ground of delay, but also on the ground of latches.
5. Defendant 2 though served, did not choose to file any written statement.
6. The Trial Court framed the following issues:
(i) Whether the plaintiff proves that he entered into sale agreement with defendant 1 on 10-9-1980 pertaining to suit schedule property?
(ii) Whether the plaintiff proves that he had paid entire sale consideration to defendant 1?
(iii) Whether the plaintiff proves that there was breach of contract by defendant 1?
(iv) Whether the plaintiff proves that he is willing and ready to perform his part of contract?
(v) Whether the plaintiff is entitled for the delivery of vacant possession of suit schedule property?
(vi) Whether the
