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In the High Court of Bombay at Goa
F.M. REIS
Gurunath Ganesh Redkar & Others
Versus
Balkrishna Jaiwant Redkar & Others
SECOND APPEAL NO. 87 OF 2007
Decided on : 13-06-2012
There is no substantial question of law framed on that count nor any submissions advanced to show any perversity in such findings and, as such, the findings of the Court below on that aspect cannot be assailed. In any event, such concurrent finding of fact cannot be re-agitated before High Court in a Second Appeal. Be that as it may, the only submission to be considered would be with regard to the substantial question of law framed by the High Court.
LIMITATION ACT, 1963 - Article 54 - Transfer of Property Act, 1882, Section 53- A - Suit for specific performance - Limitation. Held - Suit for specific performance of contract in case in which no specific date is fixed for the performance is within three years from the date plaintiff has noticed that the performance is refused by the defendant.
Article 54 of the Limitation Act clearly provides that a suit for specific performance of a contract in case in which no specific date is fixed for the performance of the contract is within three years from the date the plaintiff has noticed that the performance is refused by the defendant. In the present case, it is not in dispute that there was no time fixed for the performance of the contract in terms of the Agreement sought to be enforced by the appellants in the counter claim. Considering the said provisions of the Limitation Act, such suit for specific performance is to be filed within a period of three years from the date the respondents have refused performance of the contract. In the present case, there is no material on record and there is nothing pointed out to show that prior to the filing of the suit by the respondents in the year 1980, the respondent No. 1 refused to perform the Agreement and, as such, in view of Article 54 of the Limitation Act, the period of three years would be from the date of refusal of performing the Agreement. But, however, the point which would have to be considered is whether the appellants have been refused specific performance on the ground that the counter claim filed by the appellants was barred by the law of limitation. On perusal of the judgment of the trial Judge dated 18.08.2003, it has been held that there is no material to establish that any effective steps were taken by the appellants to pay the balance amount. The Judge has further found that the counter claim filed by the appellants was barred by the law of limitation in terms of Article 54 of the Limitation Act. The Judge also found that the readiness and willingness to pay the balance amount has not been established. Even assuming that there was no material on record to establish that respondents have refused to perform their part of the Agreement prior to three years from the date of the filing of the counter claim, nevertheless, in view of the finding of the trial Judge which have been confirmed by the lower appellate Court that there is no material adduced to show what efforts have been made by the appellants to pay the balance amount, Court finds that the Courts below were justified to refuse specific performance of the said Agreement as prayed by the appellants in their counter claim. Both the Courts below did not accept the contentions of the appellants that part consideration was paid to pay the liabilities of the respondents. It is well settled that granting a relief of specific performance is a discretionary relief and in the present case considering the long delay in seeking specific performance and as the appellants themselves contend that they had sent letters to the respondents to execute the sale deed which they failed to do so, Court finds that the Courts below have rightly exercised the discretion in refusing the specific performance of the Agreement to the appellants. As such, the question of claiming advantage of the provisions of Section 53-A of the Transfer of Property Act and claim part performance of the Agreement on such count cannot be accepted. Taking note of the fact that there is gross delay on the part of the appellants to file their counter claim to seek for specific performance, the Courts below have rightly appreciated the evidence on record and have refused specific performance to the appellants. The Lower Appellate Court on re-appreciating the evidence on record has rightly come to the conclusion that appellants are not entitled to the specific performance of the agreement dated 6.4.1969.
Specific Relief Act, 1963 - Section 16 - T.P. Act, Section 53-A - Specific performance of agreement. Since defendant, in possession of suit premises towards part performance of agreement, failed to show his readiness and willingness to pay balance amount hence Courts below rightly refused to grant relief of specific performance of agreement.
Transfer of Property Act, 1882 - Section 53-A - Part Performance.
Held - Granting a relief of specific performance is a discretionary relief - In present case, there is long delay in seeking specific performance and as the appellants contend that they had sent letters to the respondents to execute the sale deed which they failed to do so, Court below was right to refuse specific performance of contract.
CIVIL PROCEDURE CODE, 1908 - Section 102 - Second Appeal. - Held - There is no substantial question of law framed nor any submission advanced to show any perversity in such findings and as such the finding of Court below on that aspect cannot be assailed - Such concurrent finding of fact cannot be reagitated before High Court in second appeal. - There is no substantial question of law framed on that count nor any submissions advanced to show any perversity in such findings and, as such, the findings of the Court below on that aspect cannot be assailed. In any event, such concurrent finding of fact cannot be re-agitated before High Court in a Second Appeal. Be that as it may, the only submission to be considered would be with regard to the substantial question of law framed by the High Court.
LIMITATION ACT, 1963 - Article 54 - Transfer of Property Act, 1882, Section 53-A - Suit for specific performance - Limitation. - Held - Suit for specific performance of contract in case in which no specific date is fixed for the performance is within three years from the date plaintiff has noticed that the performance is refused by the defendant. - Article 54 of the Limitation Act clearly provides that a suit for specific performance of a contract in case in which no specific date is fixed for the performance of the contract is within three years from the date the plaintiff has noticed that the performance is refused by the defendant. In the present case, it is not in dispute that there was no time fixed for the performance of the contract in terms of the Agreement sought to be enforced by the appellants in the counter claim. Considering the said provisions of the Limitation Act, such suit for specific performance is to be filed within a period of three years from the date the respondents have refused performance of the contract. In the present case, there is no material on record and there is nothing pointed out to show that prior to the filing of the suit by the respondents in the year 1980, the respondent No. 1 refused to perform the Agreement and, as such, in view of Article 54 of the Limitation Act, the period of three years would be from the date of refusal of performing the Agreement. But, however, the point which would have to be considered is whether the appellants have been refused specific performance on the ground that the counter claim filed by the appellants was barred by the law of limitation. On perusal of the judgment of the trial Judge dated 18.08.2003, it has been held that there is no material to establish that any effective steps were taken by the appellants to pay the balance amount. The Judge has further found that the counter claim filed by the appellants was barred by the law of limitation in terms of Article 54 of the Limitation Act. The Judge also found that the readiness and willingness to pay the balance amount has not been established. Even assuming that there was no material on record to establish that respondents have refused to perform their part of the Agreement prior to three years from the date of the filing of the counter claim, nevertheless, in view of the finding of the trial Judge which have been confirmed by the lower appellate Court that there is no material adduced to show what efforts have been made by the appellants to pay the balance amount, Court finds that the Courts below were justified to refuse specific performance of the said Agreement as prayed by the appellants in their counter claim. Both the Courts below did not accept the contentions of the appellants that part consideration was paid to pay the liabilities of the respondents. It is well settled that granting a relief of specific performance is a discretionary relief and in the present case considering the long delay in seeking specific performance and as the appellants themselves contend that they had sent letters to the respondents to execute the sale deed which they failed to do so, Court finds that the Courts below have rightly exercised the discretion in refusing the specific performance of the Agreement to the appellants. As such, the question of claiming advantage of the provisions of Section 53-A of the Transfer of Property Act and claim part performance of the Agreement on such count cannot be accepted. Taking note of the fact that there is gross delay on the part of the appellants to file their counter claim to seek for specific performance, the Courts below have rightly appreciated the evidence on record and have refused specific performance to the appellants. The Lower Appellate Court on re-appreciating the evidence on record has rightly come to the conclusion that appellants are not entitled to the specific performance of the agreement dated 6.4.1969.
TRANSFER OF PROPERTY ACT, 1882 - Section 53-A Part Performance. - Held - Granting a relief of specific performance is a discretionary relief - In present case, there is long delay in seeking specific performance and as the appellants contend that they had sent letters to the respondents to execute the sale deed which they failed to do so, Court below was right to refuse specific performance of contract.
Heard Shri S. D. Lotlikar, learned Senior Advocate appearing for the Appellants and Shri P. Rao, learned Counsel appearing for the Respondents.
2. The Second Appeal came to be admitted on the following substantial question of law by Order dated 30.10.2007:
1) Whether in view of the fact that there was no specific time limit fixed for the performance of the agreement and the appellant had been put in possession of the property to be sold their counter claim for specific performance which was filed within two years of the repudiation of the Agreement by the Respondent could be said to be barred by limitation and unreasonably delayed?
3. Briefly the facts of the case are that a plot surveyed under no. 56/1 of Curchorem Village along with a building situated therein was agreed to be sold by Balkrishna Jaiwant Redkar vide Agreement of Sale dated 06.04.1969 to the late Gurudas to the deceased appellant no. 1 for a total sum of Rs.60,000/-out of which an amount of Rs.10,000/-was paid at the time of the execution of the Agreement and the balance amount was agreed to be paid at the time of the execution of the Sale Deed. The deceased Appellant was put in possession of the property agreed to be sold in part performance of the Agreement with right to the rents of the premises and to receive the rent and profits of the said property. The said Balkrishna along with his wife instituted a suit in the Court of Civil Judge, Senior Division at Quepem, being Spl. Civil Suit no. 6/1980 seeking declaration that the Agreement dated 06.04.1969 was null and void with a further direction to render the accounts of the business and the income received by the Appellants from the tenants of the suit property. The Appellants who were the original defendants on being served, contested the suit filed by the Respondent by filing their written statements. It was denied by the Appellants that the Agreement was null and void or fraudulent. Along with the written statements, the counter claim was also filed by the Appellants seeking specific performance of the Agreement dated 06.04.1969 against the Respondents on paying the balance amount. In the written statements filed to the counter claim by the Respondents, the only contention raised therein was that the said Agreement was fraudulent and, as such was null and void. The suit filed by the Respondents came to be dismissed for default. No steps were taken by the Respondents to restore the said suit but, however, the counter claim proceeded for trial. The learned Trial Judge after recording of evidence, dismissed the counter claim filed by the Appellants.
4. Being aggrieved by the said Judgment, the Appellants preferred an Appeal before the learned District Judge, South Goa, at Margao being Regular Civil Appeal No. 124/2003. By Judgment and Decree dated 30.05.2006, the learned District Judge dismissed the Appeal filed by the Appellants. Whilst passing the impugned Judgment, the learned Lower Appellate Court found that the contention of the Appellants that they were put in possession and part performance of the Agreement could not be believed as the Appellant was already in possession prior to the date of the said Agreement dated 06.04.1969. The learned Judge further found that the Appellants have failed to establish that until the time they filed the counter claim, they had taken any steps to pay the balance amount to the Respondents. The learned Judge further found that as the Respondent no. 2 was not a signatory to the Agreement, the same was not legally enforceable. Being aggrieved by the said Judgment, the Appeal came to be admitted on the above substantial question of law.
5. Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants has assailed the impugned Judgment on the ground that the learned Judge has erroneously come to the conclusion that the Appellants are not entitled for specific performance. Learned Senior Counsel further pointed out that once the purchaser has been put in
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