The limitation period for filing a suit for specific performance starts from the date of refusal of performance, not from the execution date of the agreement.

JUDGMENT :

A. Badharudeen, J.

Aggrieved by the judgment and decree in O.S.No.997/2011 on the files of the Subordinate Judge's Court-II, Ernakulam, the 1st defendant has preferred this appeal under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, arraying the plaintiffs as well as the 2nd defendant as the respondents herein.

2. Heard the learned counsel for the 1st defendant and the counsel appearing for the plaintiffs in detail. Perused the pleadings and evidence in this matter.

3. The parties in this appeal will be referred to as 'plaintiffs', 1st defendant' and 2nd defendant' hereinafter for easy reference.

4. The case put up by the plaintiffs before the trial court is as under;

The plaintiffs' case is that the 1st defendant agreed to sell the plaint schedule property, which he obtained on the strength of settlement deed No.1385/1970 of Ernakulam SRO, for a total consideration of Rs.22 lakhs, and an agreement in writing had been entered on 17.08.2001. The case of the plaintiffs further is that out of the sale consideration, Rs,21,78,750/- was paid in advance earlier and Rs.16,250/- more paid on the date of execution of the agreement, making a total sum of Rs..21,95,000/- paid as advance and it was agreed by the 1st defendant to execute the sale deed on paying Rs.5000/- towards balance consideration. Accordingly, the possession of the property was also handed over to the plaintiffs with right to take usufruct thereof. According to the plaintiffs, no period was fixed for executing the agreement and on 07.11.2011, the plaintiffs sent legal notice to the 1 st defendant demanding specific performance of the agreement. Though the same was accepted by the 1st defendant, he refused to perform his part of contract, on receipt of notice. Accordingly, the present suit has been filed.

5. The 1st defendant entered appearance and filed written statement denying execution of the agreement and receipt of money as alleged in the agreement. According to him, the possession of the property also was not put under the plaintiffs and the building in the plaint schedule property was given on rent to the 2nd defendant much earlier. The further case put up by the defendants is that the 1st defendant happened to avail loan of Rs.50,000/- from the 2 nd defendant in connection with his cattle feed business and the 2nd defendant insisted for issuance of blank signed stamp papers and blank signed papers towards security for the said loan from the 1st defendant. Accordingly, he had given blank signed stamp papers and blank signed papers. Though he discharged the said liability and demanded the return of blank signed stamp papers and blank signed papers, he was informed that the said documents were missing. According to the defendants, the 2nd defendant and the plaintiffs colluded together and misused the blank signed stamp papers and signed blank papers and fabricated two agreements. According to the defendants, no agreement executed to grant decree of specific performance and even otherwise, the suit is barred by limitation.

6. On the above pleadings, the trial court raised the following issues;

“(1) Whether the suit is barred by the period of limitation?

(2) Whether the agreement dated 17.08.2001 was executed by 1st defendant as alleged?

(3) Whether the plaintiffs paid a sum of Rs.22,00,000/- to the 1st defendant towards sale consideration of the plaint schedule property as claimed?

(4) Whether the plaintiffs had always been ready and willing to perform the contract?

(5) Whether the said agreement is a fabricated one as contended in the written statement?

(6) Whether the prayer for specific performance allowable?

(7) Whether the prayer for injunction allowable?

(8) Reliefs and costs?”

7. Thereafter, the trial court recorded evidence confined to that of PW1 and PW2, and Exts.A1 to A21 on the side of the plaintiffs. The 1st defendant got examined as DW1 and Exts.B1 to B4 were marked, on the side of the 1st defendant. Exts.C1 and C2 also were marked.