In a contract for sale of immovable property, failure to perform within the stipulated time renders the suit for specific performance time-barred under the Limitation Act, as readiness and willingness must be continuously proven.

JUDGMENT :

(Biren Vaishnav, J.)

1. This appeal is filed by the original plaintiffs on being aggrieved by the judgement and decree dated 22.02.2011 passed by the learned 6th Additional Senior Civil Judge, Surat in Special Civil Suit No. 285 of 2001. By the aforesaid judgement and order, the suit filed by the original plaintiffs has been dismissed.

2. Facts giving rise to the appeal are as under:

2.1 The defendants – respondents no. 1, 2 & 3 herein are the Society, the President and the Secretary respectively. They were the owners of suit property situated at Ichhapore, Ta. Choryasi bearing Revenue Survey No. 897, 898, 899, 912, 915, 916, 917 paiki, 918/2 etc. admeasuring 62142 sq. mtrs. It was the case of the plaintiffs that the respondents – defendants had agreed to sell the property to the appellants for consideration of Rs.60,58,845/-. An agreement to sell was entered into on 27.08.1993. As per the sale agreement, the appellants had paid Rs.6,05,885/-. As per conditions no. 2, 4 & 6 of the suit agreement, it was for the appellants to undertake the procedure of dereservation of the lands which took a long time.

2.2 It is the case of the plaintiffs that time was not the essence of the contract and once the dereservation took place in the year 2001, they were ready and willing to pay the remaining amount of consideration. However, the defendants refused to perform their part of the contract and therefore the appellants were constrained to file a suit seeking a decree for specific performance of the contract.

2.3 The defendants – respondents herein filed their written statement at Ex. 16. It was their case that due to lapse of time, the agreement to sell was unenforceable. As per condition no. 11 of the agreement, it was on the appellants – plaintiffs to complete the necessary procedure for dereservation on or before 31.10.1993 which they failed to do and even after extension of time limit for 2 months, they did not complete the stipulated procedure and there was no readiness and willingness to perform the contract.

2.4 The trial court after examining the evidence on record including the conditions of the agreement to sell and documents and oral evidence, framed issues, 19 in number. The trial court concurred with the plaintiffs on the question of there being an agreement to sell but on issues no. 7 & 8 namely whether the plaintiffs were able to prove that they were ready and willing to perform the contract, the same were held to be in the negative. Even on the issue of limitation, the trial court held that the suit was barred by limitation, particularly Article 54 of the LIMITATION ACT and dismissed the suit.

3. Mr. Mehul S Shah, learned Senior Advocate appearing with Mr. S.K. Patel, learned advocate for the appellants made the following submissions:

(a) That though all the issues, especially issues no. 3 & 4, have been answered in favour of the plaintiffs, inasmuch as the execution, the agreement and part payment of the contract is proved, which is the basic requirement for the suit of specific performance, only on the ground of the plaintiffs having failed to satisfy readiness and willingness to perform and on the question of limitation, the trial court has dismissed the suit.

(b) That looking to the conditions of the agreement to sell, the total consideration was Rs.60,58,845/-. Conditions no. 2 to 4 were with regard to dereservation of the land and title clearance which was to be done by the appellants. It was their responsibility of removing the land from reservation and dropping it from acquisition and thereafter the remaining sale consideration was to be paid.

(c) That the sale deed was executed on 31.10.1993 and as per the terms of the agreements,