A suit for specific performance of a contract for the sale of immovable property is barred by limitation if a date is fixed for the performance of the contract and the plaintiff does not issue any notice to the defendant between the agreement date and the date of filing the suit.

1. The plaintiff in O.S. No. 2053 of 1988 on the file of the IV Assistant Judge, City Civil Court, Madras has preferred this Second Appeal against the reversing judgment and decree in A.S. No.

291 of 1993 on the file of the Principal Judge, City Civil Court, Madras. The said reversing judgment set aside the decree for specific performance granted by the trial court and dismissed the suit. The specific performance asked for is with reference to Ex. A1 sale agreement dated 15.5.1974 executed by the defendant in favour of the plaintiff, for sale of the suit immovable property for a sum of Rs. 11,500/- six months time was stipulated under Ex. A1 for the execution of the sale deed. The suit was filed on 26.2.1988.

2. The lower appellate Court has inter alia held that the suit is barred by limitation and that it is also hit by Section (16)c of the Specific Relief Act.

3. But, learned counsel for the appellant submits that the lower appellate Court has erred in law in having observed thus:—

“In an agreement for sale of immovable property, time is generally of the essence i.e., the stipulated time is a very essential condition to be complied with strictly by the parties”.

But, this observation of the lower appellate Court is no doubt not correct and the judgement relied on by learned counsel for the appellant, viz., Indira Kaur v. Sheo Lal Kapoor (A.I.R. 1988 SC 1074) also observes that the law is well settled that in a transaction of sale of immovable property, time is not of the essence of the contract.

4. But, as I have already pointed out, the court below has also held that the suit is barred by limitation and Section 16(c) of the Specific Relief Act also has not been complied with by the plaintiff. Taking up the first of the abovesaid findings that the suit is barred by limitation, I posed the question to learned counsel for the appellant that even though the above referred to observation of the court below extracted is not correct, how does he attack the other abovesaid finding of the court below regarding limitation. But, he did not give any direct answer to the question posed by me, but only repeatedly emphasized that the Court below has approached the case wrongly in having made the abovesaid observation that time is the essence of the contract in the case of agreement for sale of immovable property. But, even though the abovesaid observation of the lower appellate court is not correct, that by itself will not lead to the conclusion that the finding of the court below that the suit is barred by limitation is also not correct. Learned counsel for the appellant did not make any separate argument as to how the abovesaid finding regarding limitation is not correct. Even in the Memorandum of Grounds, I am unable to see any specific ground taken up against the abovesaid finding on limitation.

5. On the abovesaid question of limitation, the relevant article is Article 54 of the Limitation Act, 1963 which runs as follows:—

“54. For specific performance of a contract Three years The date fixed for the performance or, if no such date is fixed, when the plaintiff has notice that performance is refused.”

So, if a date is fixed for the performance of the contract, the period of limitation is three years from the said date. Only if no, such date is fixed, the three year period begins to run from the date when the plaintiff has notice that the performance is refused. But, this latter clause will have no application to the present case since the date is fixed under Ex. A1 for the performance of the contract. Under Ex. A1 the contract must be performed within six months from 15.5.1974. In other words, the co ntract could be performed on or before 15.11.1974. In this connection, the oral evidence of P.W. 1 may also be seen. P.W. 1, the husband of the plaintiff, admits in cross-examination thus:—

Tamil

He also admits thus:—

Tamil

P.W. 1 nowhere deposed that the said period of six months fixed, was extended by any express or implied subseque