Fresh suit for specific performance by registered firm after unregistered firm's suit dismissal is barred by Article 54 limitation if beyond three years from 1993 refusal; SLP leaving questions open creates no new cause of action.

JUDGMENT :

(Per SUMAN SHYAM, J.)

1.This First Appeal is directed against the Judgment and Order dated 05.06.2018, passed by the learned Adhoc IInd Additional Senior Civil Judge, Margao, allowing the application filed by the Respondents-Defendants nos. 25(a) 25(b) and 25(c), under Order VII Rule 11 of the Civil Procedure Code, 1908, (CPC), rejecting the plaint filed by the Appellant-Plaintiff.

2. The facts and circumstances of the case, giving rise to the filing of the present Appeal, shorn of unnecessary details, are as here-under.

3. The defendant no.1-Respondent no.1 had initially entered into an Agreement for Sale of a plot of land dated 03.09.1990, with the Defendant-Respondent nos. 3 to 12 and Maria Luisa Das Neves Ferreira (since deceased), pertaining to property known as “Palmar e varzea Natibata”, admeasuring 11,920 square metres, situated at Borda, Margao, within the Municipal limits of Margao, in the District of South Goa, in the State of Goa. Late Maria Luisa Das Neves Ferreira died on 15.02.1991 leaving behind the Defendant nos. 12 to 15 as legal heirs and representatives. The Appellant-Plaintiff, as an unregistered Partnership Firm, had entered into an Agreement dated 02.02.1991 with the Defendant-Respondent no.1, with the Defendant-Respondent no.2 as confirming party, to buy the suit property. Prior to that, the un-registered firm of Appellant-Plaintiff had also entered into a Memorandum of Understanding dated 26.12.1990 with the Defendant-Respondent no.1 pertaining to the suit property. Accordingly, Maria Luisa Das Neves Ferreira had executed a General Power of Attorney dated 04.04.1990 in favour of the Defendant-Respondent nos. 1 and 2. Under the MoU dated 02.02.1991, it was agreed that on payment of a sum of Rs. 4,00,000/- by the Appellant firm, the Defendant-Respondent no.1 would assign all her rights in respect of the suit property in favour of the Appellant. Accordingly, the Appellant had paid a sum of Rs.1,00,000/- in favour of the Defendant-Respondent no.1. It was also agreed by and between the parties that a Tripartite Agreement would be signed between the Appellant, the Respondent no.1 and the original owners of the land, following which, the Appellant will make payment of the entire amount to the original owners.

4. As noted above, on 04.04.1990, a General Power of Attorney was executed by late Maria Luisa Das Neves Ferreira in favour of Defendant-Respondent nos. 1 and 2. However, there was no compliance of the Agreement of Sale dated 03.09.1990. As such, on 21.04.1993 and then on 14.08.1993, legal notices were sent by the Appellant-firm, to the Defendant-Respondent nos. 1 to 16 demanding performance of the Agreements dated 03.09.1990 as well as 02.02.1991, failing which, appropriate legal proceedings would be instituted against them. It would be significant to note herein that at the relevant point of time, the Appellant-firm was an unregistered Partnership Firm. It was only on 19.08.1993, that the Appellant Firm had made an application for registration of the Partnership Firm in the name and style of ‘Balaji Constructions Company’. On 27.08.1993, one of the partners of the firm viz. Shri Ajit Pangam had retired. Thereafter, on 30.08.1993, the Appellant-Firm, as an unregistered Partnership Firm, had instituted suit bea