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ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Narayan Sharma —Appellant
versus
Devendra Kumar Sharma —Respondent
Second Appeal No. 592 of 2013
Decided on 5.9.2013
For the Appellant:Vatsal Srivastava, Mr.Ashish Kumar Srivastava, Advocates.
For the Respondent:Vipin Kumar, Advocate.
IMPORTANT POINT
Once suit is apparently barred by time, no other consideration can prevail.
Headnote:(i) Specific Relief Act, 1963—Section 20—Limitation Act, 1963—Section 3—Specific performance of contract—Limitation—In a suit for specific performance, limitation and delay or unreasonable laches, both have their own but independent relevance—If suit is filed after period of limitation, Section 3 of L.A. 1963 clearly obliges Court to dismiss it being barred by limitation—Question of discretion does not arise but if suit is otherwise within period of limitation, still Court is not bound to decree suit by enforcing specific performance of contract if it finds that there is unreasonable delay or laches on part of plaintiff since jurisdiction of Court to decree suit for specific performance in discretionary though guided by certain legal principles. (Para 15)
(ii) Specific Relief Act, 1963—Sections 16 and 34—Limitation Act, 1963—Article 54—Specific performance of contract—Limitation—Agreement for sale of agricultural plot—Limitation to institute suit would have commenced after one year from date of execution of agreement and since suit was not filed within three years thereafter, it was apparently barred by time—When a suit is barred by time, question of laches, delay and also to construe an agreement whether therein time is essence or not would not arise—Once suit is apparently barred by time, no other consideration can prevail—Time is essence of contract and plaintiff having failed to abide by requisite steps which it ought to have taken within time, suit for specific performance at his instance could not have been decreed. (Paras 23 and 25)
(iii) Contract Act, 1872—Section 55—Contract—Limitation—If time is not essence of contract, non-observance of performance of some part of contract by one of party shall render contract only voidable—General principle applicable to determine, whether time is essence of contract or not, one has to read entire agreement/contract between parties to find out whether, therein time is essence or not, with reference to performance of contract, as a whole, or, with reference to a particular term or condition of contract which is allegedly breached—In an agreement for sale relating to immovable property if time is specified for payment of sale price but not in regard to execution of sale deed, it will become essence only with reference to payment of sale price but not in regard to execution of sale deed. (Paras 26 and 27)
Sudhir Agarwal, J.— This is a defendant’s appeal filed under Section 100 CPC which has arisen from the judgment and decree dated 5.4.2012 passed by Smt. Sapna Shukla, Additional Civil Judge (Senior Division), Court No.8, Meerut decreeing Original suit No.64 of 2006, which has been affirmed by judgment and decree dated 9.4.2013 passed by Sri V.S. Patel, Additional District and Sessions Judge, Court No.5, Meerut by dismissing Civil Appeal No.125 of 2012, filed by defendant.
2. After hearing appeal under Order 41 Rule 11 CPC, this Court formulated following substantial question of law:
“(I) Whether the suit in question was barred by time or as held by courts below the time was not essence of the contract and, therefore, the suit filed even after seven years was not barred by limitation.”
3. During course of the argument, I found that construction of clauses 2 and 4 of the agreement is also involved in this matter. It is necessary to find out whether a date or time has been fixed in the agreement for performance of contract so as to attract commencement of period of limitation under Article 54 of Limitation Act, 1963 (hereinafter referred to as “L.A. 1963”). Therefore, with the consent of parties, one more substantial question of law which has arisen in this matter, also formulated as under:
“(II) Whether Clauses 2 and 4 of the agreement provides/fixes a date for execution of the sale deed so as to result in commencement of period of limitation after that date.”
“4. I have heard Sri Vatsal Srivastava and Sri Ashish Kumar Srivastava, Advocates for appellant and Sri Vipin Kumar, Advocate for respondent on the aforesaid questions of law. However, before giving answer of the same, it would be appropriate to have a brief resume of the relevant facts giving rise to aforesaid issues.
5. The plaintiff-respondent (hereinafter referred to as the “plaintiff”) and defendant-appellant (hereinafter referred to as the “defendant”) both are real brothers, being sons of Late Pandit Birakhram Sharma, resident of Kamalpur, Pargana, Tehsil and District Meerut. The Original Suit No.64 of 2006 was instituted by plaintiff, vide plaint dated 14.2.2006, for specific performance by enforcing contract for sale, dated 15.4.1998, for consideration of Rs.24,000, in regard to agricultural plot, Khasra No.2B, area 0.904 hectare with tube well No.PT-3-49 situated at Village Kamalpur, District Meerut and 1/4th part of residential house, detailed at the foot of the plaint. The suit was contested by defendant, vide written statement dated 31.8.2006, on the ground of limitation and bar under Sections 16 and 34 of Specific Relief Act, 1963 (hereinafter referred to as the “Act, 1963”); that the plaintiff was not ready and willing for execution of sale deed and the contract for sale, even otherwise, is void. He pleaded that he had no intention of either to sell the property or to execute the sale deed. The defendant Narayan Sharma in fact, took a plea that he had borrowed some money from plaintiff and the document was executed for satisfaction of plaintiff. There was an understanding between the two that when defendant would return borrowed money, the alleged agreement would be returned to him. Though the defendant returned entire money to the plaintiff, which he borrowed, but neither the plaintiff returned the alleged deed of agreement, nor the defendant, being real brother, demanded the same from the plaintiff, under the belief that the latter will destroy the alleged deed and will never misuse the same. The property in dispute is in possession of the defendant and was never handed over to the plaintiff, since there was no intention of any sale or purchase thereof. Hence, the question of seeking permission did not arise. He also pleaded that the suit is barred by time.
6. The Trial Court (hereinafter referred to as “T.C.”) framed seven issues. Issue No.6 related to limitation. It held that time was not the essence and if one of the parties is ready and w
