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Gujarat High Court
Judgename :A.N.Divecha
SOMABHAI KANJIBHAI PATEL - Appellant
Versus
ABBASBHAI JAFARBHAI daginawala - Respondent
C.A.204 of 1978
Decided On : 06/16/1993
Plot No.12 out of plots Nos. 8 to 12 agreed to be sold -was sold by the deceased during his life-time on or about 26th July -1972. In any case, the sale transaction with respect to plot No.12 -was registered under the Indian Registration Act, 1908 on that date -as transpiring from a certified copy of the index extract at Exh.58 -on the record of the case, and as such the knowledge of the sale transaction -with respect to that plot can certainly be attributed to the appellant -from the date of such registration on 26th July 1972. The suit was -admittedly filed on 28th October 1975, that is, nearly three years -and three months after the date of such registration of sale of plot -No.12. The learned trial Judge was not right in accepting the date -of the receipt at Exh.49 to be the starting point of limitation under -Article 54 of the Act. The prescribed period of limitation under Article -54 of the Act is three years from the date performance of the contract -is refused to the knowledge of the litigating party. In that view -of the matter, there is no escape from the conclusion that the suit -for specific performance was hit by Article 54 of the Act.
[Para 5]
Limitation Act, 1963-Art. 113-Suit for refund -of earnest money-Residuary article 113 applies-Starting point -of limitation thereunder would be when right to sue accrued-In -the instant case performance was refused when registration of sale -of plot No.12 made on 26.7.1972-Suit filed on 28.10.75 is clearly -beyond the period of limitation of three years prescribed.
The relief of the recovery of the Earnest Money can certainly -not be part of the Article 54 of the Act. It is restricted to the -relief of specific performance only. Article 47 of the Act will not -be applicable for the reason that it applies to a suit for money paid -for an existing consideration which afterwards fails. In the present -case, the consideration cannot be said to have failed afterwards. -Since there appears no specific Article in the Act for governing -a suit for recovery of the Earnest Money, the residuary Article being -Article 113 thereof will have to be resorted to for the purpose.
[para 9]
That starting point of limitation thereunder would be -when the right to sue accrued. The right to sue for recovery of the -Earnest Money would accrue when performance of the contract was refused -by the other wise. As aforesaid, performance was refused when registration -of sale of plot No.12 by the deceased took place on 26th July 1972. -As aforesaid, the suit was filed on 28th October 1975, about three -years and three months after the date of registration of the sale -transaction of plot No.12. The prescribed period of limitation under -Article 113 of the Act is three years from the date the right to sue -accrues. The suit is filed three months after expiry of the period -of limitation in the present case. The learned trial Judge has rightly -held it to be time-barred even for the relief of recovery of the -Earnest Money.
[Para 10]
( 1 ) THE judgment and the decree passed by the learned Joint civil Judge (S. D.) at Surat on 3/11/1977 in Special Civil Suit no. 207 of 1975 are under challenge in this Civil Appeal at the instance of the original plaintiff under Sec. 96 of the Code of Civil Procedure, 1908 (the Act for brief ). It needs no telling that the appellants suit has come to be dismissed thereunder.
( 2 ) THE facts giving rise to this appeal are not many and not much in dispute. One Dawoodbhai Jafarbhai Daginawala (the deceased for the sake of convenience) was a Partner in the Partnership Firm in the name and style of Johar Estate Corporation (the Partnership Firm for convenience) along with respondents Nos. 1, 2 and 4 herein. The Partnership Firm was dealing in lands. The appellant claims to have agreed to purchase plots Nos. 8 to 14 from Survey Nos. 276/1 and 277/1 situated in Udhna from the partnership Firm on the consideration amount of Rs. 8,000. He is stated to have paid the entire consideration on 31/03/1970 under the receipt at Exh. 49 on the record of the trial Court. It appears that the deceased breathed his last some time in 1973. It appears that plots nos. 9 and 12 were sold by the deceased during his life time some time in or around July 1972 and May 1973 respectively. Plots Nos. 8, 13 and 14 were sold by his heirs and legal representatives some time in or around December 1973 obviously after his death. It was the case of the appellant before the lower court that he entered into a fresh agreement with the existing partners of the partnership Firm for sale of plots Nos. 33 to 39 in lieu of plots Nos. 8 to 14 agreed to be sold earlier. According to the appellant, the respondents herein later on backed out from the agreement to sell plots Nos. 33 to 39. Some notice correspondence appears to have been exchanged between the parties. The appellant was thereafter required to file one suit in the Court of the Civil Judge (S. D.) at Surat for specific performance of the contract alleged to have been entered into between the appellant on one hand and the partners of the Partnership Firm on the other for sale of plots Nos. 8 to 14 as originally agreed or in the alternative plots Nos. 33 to 39 as subsequently agreed or in the alternative for compensation and for refund of the Earnest Money together with interest thereon. It came to be registered as Special Civil Suit No. 207 of 1975. Respondents Nos, 1,2 and 4 filed their separate written statement at Exh. 19 on the record of the trial Court and resisted the suit on various grounds. Respondents Nos. 3 and 5 to 7 filed their separate written statement at Exh. 20 on the record of the trial Court and resisted the suit on various grounds practically the same as urged by the other defendants in their written statement at Exh. 19 on the record of the trial Court. The suit appears to have been assigned to the learned Joint Civil judge (S. D.) at Surat for trial and disposal. On the pleadings of the parties, the necessary issues were framed at Exh. 21 on the record of the trial Court. After recording evidence and hearing the parties, by his judgment and decree passed on 3/11/1977 in Special Civil Suit No. 207 of 1975, the learned joint Civil Judge (S. D.) at Surat dismissed the suit. The aggrieved plaintiff thereupon invoked the appellate jurisdiction of this Court under Sec. 96 of the code for questioning the correctness thereof.
( 3 ) THE learned trial Judge infer alia came to the conclusion that the appellant entered into a contract for sale of plots Nos. 8 to 14 with the deceased in his individual capacity and not as a partner of the Partnership firm. The learned trial Judge also came to the conclusion that there was no new contract for sale of plots Nos. 33 to 39 with the Partnership Firm after the death of the deceased. The learned trial Judge however came to the conclusion that the suit was bit by the Law of Limitation both with respect to the relief of specific performance as well
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