The agreement to sell implicitly includes the execution of the sale deed, and the refusal to execute the sale deed triggers the limitation period under the Limitation Act, 1963.

Valmiki J. Mehta, J.

1. This second appeal is filed under Section 100 CPC against the concurrent judgments of the courts below; of the trial court dated 11.7.2013 and the first appellate court dated 22.11.2013; by which the suit for specific performance and possession filed by the appellant-plaintiff with respect to the agreement to sell dated 28.9.2000 pertaining to the property bearing plot nos.36 and 37 admeasuring 300 sq. yds forming part of K.No.54/29, village Mitraon, Delhi, now known as Gopal Nagar, C-Block, Najafgarh, New Delhi-43, has been dismissed.

2. Right at the outset I must state that the impugned judgments of both the courts below are very surprising by which the suit for specific performance has been dismissed, inasmuch as, out of the three co-owners/three defendants, the defendant no.1 filed his written statement admitting to the transaction laying blame at the door of the defendant nos.2 and 3 for not completing the transaction; thereafter did not appear and was proceeded ex parte, and the defendant nos. 2 and 3 did not file their written statement and ultimately their right to file written statement was closed. There is hence no evidence led on behalf of the respondents/defendants. It may be stated that the order passed for closing the right of the defendant nos. 2 and 3/respondent nos. 2 and 3 was challenged by them in the High Court and this Court in CM (M) No. 824/2007 by the order dated 5.9.2008 confirmed the order closing the right of the respondent nos. 2 and 3/defendant nos. 2 and 3 to file their written statement.

3. Another important aspect to be noted is that entire consideration of Rs.90,000/- under the subject agreement to sell dated 28.9.2000, Ex.PW1/2, has been paid to the respondents/defendants and as stated in the agreement to sell. This is also confirmed by a receipt of the same date which has been filed and proved as Ex.PW1/3. Possession of the property was stated to be delivered under the agreement to sell, however, actual possession remained with the respondents/defendants and consequently, the subject suit for specific performance and possession has been filed by the appellant.

4. The courts below have dismissed the suit for specific performance by holding that the suit is barred by limitation and that in the agreement to sell it is not mentioned that the sale deed will be executed. Both these reasons are not only illegal but perverse to say the least.

5. For disposal of this regular second appeal, the following substantial questions of law are framed:-

“(i) Whether the courts below have committed grave illegality and perversity in dismissing the suit for specific performance although, the appellant-plaintiff led evidence, and the defendants/respondents did not lead any evidence in view of the fact that the right of defendant nos. 2 and 3/respondent nos. 2 and 3 to file the written statement stood closed?

(ii) Whether the courts below have gravely erred and committed a gross perversity and illegality in holding the suit to be time barred though Article 54 of the Limitation Act, 1963 provides that only on the specific refusal to execute the sale deed, the period of limitation commences and which commenced only when the legal notice dated 17.2.2006 was issued, and which is to be read with the aspect of obligation of the respondent/defendant to take necessary permission from the requisite authorities for executing the sale deed?

(iii) Whether the judgments of the courts below are illegal and perverse in dismissing the suit for specific performance and possession?”

6. A suit for specific performance is barred by limitation, only if it is filed three years after refusal of the sellers/defendants to execute the sale deed. In the present case, the first categorical refusal only came when the legal notice was sent to the respondents/defendants to execute the sale deed. This legal notice is dated 17.2.2006 and has been proved before the trial court as Ex.PW1/6. The postal receipts