The central legal point established in the judgment is the application of Article 47 of the Limitation Act, 1963 to determine the limitation period for the suit.

Sanjay Karol, J.-This is the plaintiff’s first appeal against the judgment and decree dated 11.10.2004 passed by the learned District Judge, Solan, H.P. in Civil Suit No.3-S/1 of 2004, titled as Smt. Punita Bharti vs. Shri Kirpal Singh dismissing her suit for recovery of money.

2. On 30.11.1999 plaintiff (appellant) and defendant (respondent) entered into an agreement for sale of land comprised in Khasra No.1167/731/4 measuring 552 square meters and Khasra No.730 and 1166/731 measuring 815 square meters, situated in Mauja Deon, Tehsil and District Solan, H.P. The sale consideration was fixed at Rs.28,70,700/- and two sums being Rs.50,000/-and Rs.1,50,000/- was received by the seller- defendant from the purchaser-plaintiff. In terms of the agreement, the sale deed was to be executed on 25.3.2000 when the balance sum was to be paid. According to the plaintiff, inspite of repeated assurances the defendant failed to construct a path and jeepable road to the land agreed to be sold to her. Finally legal notice dated 5.6.2003 was served upon the defendant, which was duly replied on 23.6.2003 wherein a totally false plea was taken to the effect that even though on the agreed date, the defendant waited for her in the office of the Sub Registrar, the plaintiff had failed to come forward to execute the sale deed in her favour, hence the earnest money stood forfeited. Thereafter plaintiff issued another notice. The cause of action accrued in favour of the plaintiff in the year 2000, 2001, 2002 and 2003 when the defendant kept on making the promises that he would be executing the sale deed after construction of path/road but, however, it was only in the year 2003 when the plaintiff learnt that the defendant had sold part of the land to third party, that the plaintiff filed the suit on 5.1.2004 for recovery of the amount paid to the defendant alongwith interest.

3. The defendant contested the suit by taking the plea on merits that the plaintiff failed to get the sale deed executed and pay the balance sale consideration by 25.3.2000 i.e. date mentioned in the agreement for the execution of the sale deed. The defendant waited for the plaintiff to get the sale deed executed at the office of the Sub Registrar, Solan, but, however, neither did she come forward nor sent any information. Consequently, the defendant sent notice dated 4.4.2000 to the plaintiff informing to get the sale deed executed within 7 days failing which the agreement was to stand rescinded. Since the plaintiff failed to accept the registered cover containing the notice and pay the balance consideration within 7 days, the amount paid by her stood forfeited. With regard to construction of path the defendant pleaded that the same was to be constructed only upon payment of fifty per cent of the sale consideration by 15.1.2000.

Based on the pleadings of the parties, court below framed the following issues:-

1. Whether the plaintiff is entitled to the refund of the earnest money of Rs. two lacs alongwith interest at the rate of 12% P.A. as claimed? OPP

2. Whether the suit is barred by time? OPD.

3. Whether the plaintiff was to have the sale deed registered in her favour by 25th March 2000 but she did not come forward to get the sale deed executed and registered in favour by that date despite the defendant having waited for her at the office of Sub Registrar, Solan on 25.3.2000 as alleged, if so its effect? OPD.

4. Whether the defendant had agreed to provide five meters wide road by way of approach to the land agreed to be sold as alleged and the defendant having failed to provide such road the plaintiff did not approach the defendant for execution and registration of the sale deed by the last date stipulated in the agreement or even thereafter and as such the question of limitation does not arise as alleged? OPP.

5. Whether the present suit is not `competent in the individual name of the plaintiff because the agreement was executed by her not in her personal capacity