The plaintiff must prove the date of refusal of performance to establish the starting point of limitation for a suit for specific performance.

The Appeal is filed by the original plaintiff against an order and judgment dated 26th February, 2014 on one of two preliminary issues framed under section 9-A of the Code of Civil Procedure 1908 (“CPC”). Before the learned Judge in a suit for specific performance for sale of land, the defendants raised two preliminary issues. The first was of a statutory bar inter alia under the Bombay Tenancy and Agricultural Lands Act, 1948 and the Bombay Inferior Village Vatan Act, 1958. On that issue, the plaintiff succeeded. The defendants have not appealed.

2. The defendants also raised a plea of limitation saying that the suit for specific performance of the Agreement dated 11th November, 2005 was barred by limitation. The Agreement in question is of 11th November, 2005. It pertained to Survey No. 10 Hissa No. 1 of revenue village Wadgaon, Taluka Haveli, District Pune. This is a tract of land of about 56 Ares, just over half a hectare. The plaintiff’s case was that since defendants Nos. 7 and 8 were finding it difficult to develop the land they entered into an Agreement for Sale dated 11th November, 2005. Defendants Nos. 1 to 3 and another party interested in the land were also parties to the Agreement. The consideration was Rs.1,25,00,000/-. The plaintiff paid the stamp duty charges. In the plaint, there is a tabulation below paragraph 4 showing how the payments were made between 2005 and, according to the plaintiff, right until 2010. The plaintiff’s claimed that this Agreement for Sale was confirmed by a subsequent Deed of Confirmation dated 9th February, 2007. Then come paragraphs 7 and 10 and, for the purposes of limitation, these are the crucial paragraphs of the plaint. They read thus :

“7. It is further submitted by the plaintiff that some time in the month of November, 2011 in meeting between the partners of the plaintiff and the defendant No. 7 and 8, it was revealed by the defendant No. 7, 8 that M/s K. D. Associates had filed RCS No. 174/2003 against the defendants No. 1 to 3 and Late Bayada and defendant No. 7, 8 for the injunction simplicitor in respect of the suit property and which was dismissed Hon’ble Civil Judge Senior Division by Judgment and Decree dated 6-3-2008 holding that agreement for the sell/development between the defendant Nos. 1 to 3 and Late Bayada and said K. D. Associates is illegal, null and void. That upon the said Judgment defendant No. 9 has preferred the Civil Appeal in the Hon. District Court, Pune by No. 328/2008 and same is pending in the Court. The plaintiff further submits that he has received the information on about 14-12-2011 through one Mr. Lohade S. N. That defendant Nos. 1 to 9 have colluded and are in league with each other and in fact partner of the defendant No. 9 Mr. Nandkumar Gopal Kulkarni with the consent of other defendant had offered to sale the suit property to said Mr. Lohade and forwarded copies of the title documents including the letter of the Collector permitting the alienation of suit property for his perusal.

10. The plaintiff submits that there was no period specified or stipulated for the performance of the agreement. The plaintiff first time on or about 14th December, 2011 came to know that by totally discarding or violating the agreement the defendant No. 1 to 8 are trying to sell the suit property to the third party and thus refusing the performance of the contract to the plaintiff and thus suit filed is in limitation. Thus in view of Article 54 of the Limitation Act, the suit filed is in within limitation.” (Emphasis added)

3. Defendants Nos. 1 and 2 filed a Written Statement. There is a denial although it is somewhat cryptic saying only that the contentions in paragraphs 7, 8, 9 and 10 of the plaint are denied.

4. The trial Court correctly framed the two preliminary issues, the first on the statutory bar and second on limitation. In paragraph 9, the lea