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BOMBAY HIGH COURT
Vibha Kankanwadi, J.
Jubeda Iqbal Rajkotwala
(Dead) Through LRs —Appellant
versus
Mangal Gangadhar Gadalkar —Respondent
Second Appeal No. 785 of 2017; Civil Application No. 15227 of 2017
Decided on 13.8.2019
Counsel for the Parties:
A.K. Gawali, Advocate, A.M. Gholap, Advocate, S.S. Mande, Advocate
IMPORTANT POINT
When suit is filed beyond period of limitation, none of reliefs which have been prayed by plaintiffs can be granted.
Headnote:
(A) Agreement to Sell—Suit for Specific Performance—Relief of specific performance was rejected and taking into consideration proof of amount extended by plaintiffs, defendants were directed to pay amount of Rs.2,90,000/- along with interest—When agreement itself is not proved, corollary of same is to dismiss suit in its entirety—However, both Courts have taken further points for consideration in respect of readiness and willingness, time was essence of contract or not and whether suit is within limitation—Conduct of plaintiffs in not making any inquiry about steps taken by defendants to convert land into non-agriculture would lead to conclusion that they were never willing to perform their part of contract—When endorsements about receipt of amount does not say anything about liability or responsibility of defendants to execute sale deed, alleged payments will not extend period of limitation for plaintiffs—When suit is filed beyond period of limitation, none of reliefs which have been prayed by plaintiffs can be granted—Second Appeal disposed of as “Not admitted”. (Paras 5, 14, 15 and 18)
(B) Limitation Act, 1963—Section 18—Limitation—Suit for Specific Performance—Alleged acknowledgments made subsequent should have been made before expiration of period of limitation for suit—This is basic requirement to invoke Section 18 of Limitation Act. (Para 16)
Result: Appeal disposed of.
JUDGMENT
Vibha Kankanwadi, J.—Present appeal has been filed by the original plaintiffs challenging the concurrent Judgment and Decree passed in Special Civil Suit No.123/2003 by 2nd Jt. Civil Judge Senior Division, Ahmednagar dated 29.11.2004, whereby their suit for specific performance of the contract is dismissed, however, the defendants were directed to pay amount of Rs.2,90,000/- along with interest to the plaintiffs and the said decree was confirmed in Regular Civil Appeal No.171/2012 (First Appeal No.328/2005) by District Judge-13, Ahmednagar on 22.08.2017.
2. What is not in dispute is that the predecessors of the defendants viz. Chhabu, Gangadhar and Bharat were the owners of Sy.No.50/4/B and Sy.No.51/5 situated at Maliwada, Tq. Nagar, Dist. Ahmednagar.
3. Original plaintiffs had come with a case that Chhabu, Gangadhar and Bharat had agreed to sell the suit lands to their predecessor viz. Iqbal Rajkotwala in the year 1990. An agreement to sell to that effect was executed on 24.05.1990. The consideration was fixed at Rs.2,01,000/- per acre. Iqbal gave earnest amount of Rs.1,00,000/- to the brothers. It was contended that the possession was delivered as part performance of the agreement to sell. One of the conditions in the said agreement was, that the brothers would get permission to convert the land into non agriculture within 11 months and then the sale deed would be executed. However, they failed in getting permission within time. Then they had demanded amount to Iqbal to get the layout sanctioned. Accordingly Iqbal and plaintiffs had paid Rs.1,00,000/- on 06.07.1990, Rs.1,50,000/- on 17.10.2010, Rs.10,000/- on 14.03.1991, Rs.10,000/- on 01.12.1999 and Rs.20,000/- on 23.08.2001. Thus, in all amount of Rs.2,90,000/- has been paid by the plaintiffs towards consideration. It is further contended that inspite of giving sufficient opportunity to the brothers and the other defendants, who are the heirs of one of the brothers, to get the land converted into non agriculture, they avoided to execute the sale deed and therefore, the plaintiffs had sent notice dated 27.05.2002 calling upon them to execute the sale deed. Inspite of receipt of the notice they failed and therefore, suit has been filed for specific performance of the contract. In the alternative, the plaintiffs prayed for refund of the earnest amount together with interest and also amount of Rs.4,92,450/- as damages. Further, in the alternative, they had prayed that if the relief of specific performance is granted and then if the Court finds that they are not in possession, then possession should be delivered to them.
4. The defendants resisted the claim of the plaintiffs by filing written statement. They have specifically denied that any such agreement was entered into by them with deceased. It is stated that they had close association with deceased Iqbal. They used to borrow the money from Iqbal, whenever they were in need of money. At that time, Iqbal used to obtain their signatures on blank stamp papers. Defendant Nos.6 and 7 or deceased Gangadhar never executed agreement to sell of their lands. It was contended that in the year 1990 the market rate of the suit land was between 8 to 10 lac rupees per acre. The actual possession is with the defendants. The suit has been filed after 13 years of alleged agreement to sell and therefore, the suit is barred by limitation. The suit is not properly valued. The agreement was not registered and has not been executed on proper Court fee stamp, therefore, cannot be read in evidence. Taking into consideration the facts of the case, it can be said that plaintiffs were never ready and willing to perform their part of the contract. On these counts they prayed for the dismissal of the suit.
5. Taking into consideration the rival contentions, issues came to be framed. Parties have led oral as well as documentary evidence. Taking into consideration the evidence on record and hearing both sides, as aforesaid, the relief of specific
