IMPORTANT POINT
Agreement to sell--Limitation--Suit for specific performance for agreement to sell property--Mere plea that it was filed on last day does not defeat right of respondent to seek specific performance.

Ajay Tewari, J.:-This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondent for specific performance of the agreement to sell.

2. The first argument of learned senior counsel for the appellant is that even though the agreement was for specific khasra numbers viz. 18/22/4 (0-4), 26/2/3/1 (0-8) and 26/2/3/2 (0-13), yet in the plaint it was mentioned as follows :-

“18/22/4/2(0-4) or 22/4/2 whichever khasra number is found to be correct.

26/2/3/1(0-8), 26/2/3/2(0-13) or 26/2/3/3 whichever khasra number is found to be correct”.

3. It is argued that even in the decree it was so mentioned. It is, thus, the argument of the learned counsel that the plaintiff could only seek specific performance of the agreement and could not add any thing more to the same.

4. In my opinion, this contention is without merit. The learned lower appellate Court has noticed that originally the numbers mentioned in the agreement were correct but as a consequence of some acquisition, the numbers were changed. However, the learned lower appellate Court held that the identity of the property sold was not in dispute.

5. The second argument of learned senior counsel for the appellant is that the agreement was executed on 3.7.1978 when half of the consideration amount i.e Rs.3,000/- was paid; the date fixed for the execution of the sale deed was 31.7.1978 but the suit was filed on the very last day of limitation i.e 31.7.1981. He has relied upon a judgment of the Hon’ble Supreme Court in K.S.Vidyanadam and others vs Vairavan, (1997) 3 SCC 1 wherein the Hon’ble Supreme Court held as follows :-

“10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the timelimits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity ? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani :

“.... it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident ?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract.”

In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades- particularly after 1973.”

6. Learned counsel further relied upon P. Purushottam Reddy and another vs M/S Pratap Steels Ltd, AIR 2002 SC 771, wherein the Hon’ble Supreme Court held as follows :-

“8. For the purpose of deciding the question whether or not time was the essence of the contract the appella