Dr. Kunda Khemraj Choudhary vs Mathurabai Mahadu Jadhav Lrs ...
2015 Latest Caselaw 255 Bom

                                                                 SA No. 183/15
                                          1


                      IN THE HIGH COURT AT BOMBAY




                                                                          
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
                           SECOND APPEAL NO. 183 OF 2015
                                         WITH
                          CIVIL APPLICATION NO. 4815 OF 2015




                                                 
     Dr. Miss Kunda d/o. Khemraj Choudhary ....Appellant.

                      Versus

     Smt. Mathurabai w/o. Mahadu Jadhav




                                       
     (Deceased) and others                        ....Respondents.
                             
     Mr. A.D. Kasliwal, Advocate for appellant.
     Mr. P.R. Katneshwarkar h/f. Mr. N.T. Tribhuwan, Advocate for
                            
     respondent Nos. 1 to 3.
     Mr. D.V. Soman h/f. Mr. B.B. Yenge, Advocate for respondent No.
     2.
      


                                        CORAM : T.V. NALAWADE, J.
                                        DATED : 1st September, 2015.
   



     ORDER :

1) The appeal is filed against judgment and decree of

Regular Civil Appeal No. 135/2012 which was pending in the

Court of Ad-hoc District Judge, Vaijapur, District Aurangabad. The

suit filed by the present appellant bearing Special Civil Suit No.

66/2004 which was pending in the Court of Civil Judge, Senior

Division, Aurangabad and which was filed for relief of specific

performance of contract, was decided in favour of appellant by

the trial Court and this decision is set aside by the first appellate

Court. Both the sides are heard.

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2) The learned counsel for appellant submitted that

substantial questions of law need to be formulated on the basis

of grounds mentioned in the appeal memo, which are as

follows :-

(i) Non consideration of the documentary as well as

oral evidence on record and relying on the evidence

which is not admissible as per the Evidence Act is

considered.

(ii) Non framing of the points for determination by

the lower appellate Court as per Order 41 Rule 31 of

C.P.C.

(iii) Whether the facts and circumstances of the case

can it be said that, lower appellate court is justified in

setting aside well reasoned judgment passed by the

lower court, without recording any reasons, meaning

thereby can it be said that, the same is judgment in the

eyes of law.

(iv) Whether the lower appellate court is justified in

setting aside well reasoned judgment delivered by the

lower court in the fact and circumstances when oral as

well as documentary evidence adduced by the

Appellant was remained unchallenged.

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(v) Whether the lower appellate court is justified in

recording the finding for point No. 1 and 3 in

affirmative in view of the ratio laid down in Smt.

Chandrani's case reported in AIR 1993 SC 1743 and the

oral evidence adduced by the Appellant gone

unchallenged and the respondents have not adduced

any oral evidence.

(vi) Whether the lower appellate court is justified in

recording the finding that the time was the essence of

contract and the suit is barred by limitation ignoring

the oral evidence which remain unchallenged and by

virtue of Mutation Entry No. 193 area of the suit land

has been changed, can it be said that, suit for specific

performance in respect of the immovable property time

can be the essence of the contract.

(vii) Whether the lower appellate court is justified in

reversing the well reasoned judgment on sympathetic

ground, ignoring the ratio laid down in Chandrani's

case.

(vii) Whether the lower appellate court is justified in

recording the finding for point No. 2 in negative when

evidence of the Appellant remained unchallenged and

furthermore in view of the ratio laid down by the

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Hon'ble Apex Court, the party concerned should not

carry money with him evey now and then and when it

has been stated on oath the Appellant was/is ready and

willing to perform her part of contract.

3) It is the case of appellant/plaintiff that deceased

Smt. Mathurabai Jadhav was owner of land Gat No. 15,

admeasuring 2 Acres 35 Guntas, situated at village Naigaon,

Tahsil Gangapur and she had agreed to sell this property to the

plaintiff for consideration of Rs. 2,35,000/- under written

agreement dated 16.11.1988. It is the case of plaintiff that she

has paid Rs. 50,000/- as a part of consideration to Smt.

Mathurabai and the remaining amount was to be paid within four

months from the date of agreement and then the sale deed was

to be executed. It is contended that there were some technical

hurdles for execution of the sale deed and so, the sale deed was

not executed within the prescribed time. It is the case of plaintiff

that there were changes made in the revenue record regarding

area of the suit property and as the changes were not finalized,

the sale deed was not executed. It is the case of plaintiff that

after such changes, she requested the promisor Smt. Mathurabai

to execute the sale deed and Mathurabai said that, she wanted

to take consent of her daughters, defendant Nos. 2 and 3 and so,

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further time was taken by Mathurabai. It is the case of plaintiff

that she was always ready and willing to pay the remaining

amount of consideration, but the defendants did not show

eagerness to fulfill their promise by executing the sale deed. It is

contended that ultimately, plaintiff sent a notice by Registered

Post A. D. on 19.7.2003 through her advocate, asking the

defendants to complete the sale deed, but the notice was not

accepted by the defendants. She had prayed for relief of specific

performance of the contract as contained in aforesaid written

document and in alternate, she had prayed for equitable reliefs.

4) Defendant Nos. 2 and 3 filed their written statement

and denied everything. They denied that their mother had

executed agreement in favour of plaintiff and she had accepted

part of consideration under the agreement. The defendants

contended that as the suit was filed after 15 years and 2 months

from the date of so called contract, the suit was hopelessly time

barred. They have shown ignorance about the proceeding, if any,

started for correcting area of the suit land in the revenue record.

It is their case that they have become absolute owners of the

land after the death of their mother. They have contended that

plaintiff had never intimated that there was such agreement

between the plaintiff and their deceased mother. They have

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denied that they had refused to accept the notice sent by the

advocate of the plaintiff. They had requested for rejection of the

plaint under Order 7 Rule 11 of Civil Procedure Code.

5) It appears that the defendants were not allowed to

cross examine the plaintiff and defendants did not give oral

evidence . The trial Court held that the suit is within limitation.

On the basis of oral evidence, the trial Court decreed the suit.

6) The first appellate Court considered the following

points :-

(i) Whether the time is essence of contract ?

      


                   (ii)     Whether the plaintiff had proved that she was
   



                            ready and willing to perform her part of

                            contract ? and





                   (iii)    Whether the suit was time barred ?

All the three points are answered against the plaintiff by the first

appellate Court.

7) The appellate Court has considered the circumstance

that during the lifetime, Smt. Mathurabai had given the suit

property to the daughters, defendant Nos. 2 and 3 and

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accordingly, the mutation was sanctioned on 11.12.2000. The

appellate Court has also observed that this fact was within the

knowledge of plaintiff and that can be inferred in view of the

facts and circumstances of the case. The appellate Court has

held that this act of Mathurabai could have been treated as the

act of refusal, even if the other circumstances are ignored and as

the suit is not filed within three years from the date of the

sanction of the mutation, it is held that the suit is barred by

limitation. It is also observed that for about 15 years the

remaining consideration was not offered and so, the plaintiff

failed to prove that she was ready and willing to perform her

part of contract. In view of the contents of the agreement, the

first appellate Court has held that the time was essence of

contract. The appellate Court has discussed the provisions of

section 16 of the Specific Relief Act and has referred some

reported cases.

8) Copy of the agreement was produced and the

execution of this document was proved in the trial Court. In the

pleadings itself, it is admitted by the plaintiff that she was to pay

the remaining amount of consideration, which was around Rs.

1.85 lakh, within four months from the date of agreement. There

is the mention in the agreement that the sale deed was to be

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executed by the promisor Smt. Mathurabi within four months

from the date of agreement. There was specific mention that the

time of four months was to be counted from 5.11.1988, which

was the date of agreement. The daughters of Smt. Mathrabai

had not signed on this document which is titled as 'Isar Pavti'. No

possession of land was given. The document does not show that

there was any hurdle in execution and registration of sale deed.

Thus, from the agreement, it can be said that there was no

necessity of getting permission of any authority for execution of

the sale deed and registration could not have been refused by

the Sub-Registrar. In view of these circumstances and specific

pleading in the plaint that the remaining consideration was to be

paid within four moths from 5.11.1988, it was necessary for the

plaintiff to specifically plead about particulars that within this

period she had offered to give remaining consideration and she

had shown readiness and willingness to perform her part of

contract. These circumstances have created probability that

plaintiff was not having money to pay the remaining

consideration on the date of agreement. From the pleadings, it

can be said that it is very vague and the contention that some

changes were made in the area of revenue record during that

time is also not substantiated. The plaintiff has contended that

first time in writing, she sent notice to Smt. Mathurabai through

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advocate on 19.7.2003. In para 6 of the pleading, there is

mention that plaintiff knew that the land was transferred in the

names of defendant Nos. 2 and 3 under mutation dated

11.12.2000. No explanation is given as to why she did not take

steps even after getting the knowledge of this mutation. In any

case, this mutation was effected after completion of three years

from the date of agreement. These circumstances need to be

considered for ascertaining both, the cause of action for the suit

and readiness and willingness of plaintiff to perform her part of

contract.

9) The provision of Article 54 of the Limitation Act gives

period of limitation for such suit and it runs as follows :-

   



      Description          of Period of limitation Time from which              period
      suit                                         begins to run
      For     specific             Three years    The date fixed for the





      performance of                              performance, or if no such
      a contract                                  date is fixed, when the
                                                  plaintiff has notice that
                                                  performance is refused.

There are two parts, the circumstances, on the basis of which

the cause of action can arise in this Article and they are :-

(i) when the date of performance is fixed and the

promisor has not performed his part of contract within

prescribed period, and

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(ii) when the date, time is not fixed, but the plaintiff

can gather that the performance is refused by the

promissor.

Thus, the period of limitation of three years mentioned in Article

54 will start to run from the date of cause of action which can be

ascertained on the basis of aforesaid two circumstances.

10) For ascertaining the date of cause of action, the

provisions of Specific Relief Act and Contract Act also need to be

considered. The provision of section 9 of Specific Relief Act 1963

runs as under :-

                   "9.      Defence            respecting      suits     for    relief
      


                   based           on    contract.-      Except     as     otherwise
   

provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by

way of defence any ground which is available to him under any law relating to contracts"

In view of this provision, some provisions of Contract Act in the

present case need to be referred and they are the provisions of

sections 46 and 55. They run as under :-

"46. Time for performance of promise, where no application is to be made and no time is specified.-Where, by the contract, a promisor is to perform his promise without

SA No. 183/15

application by the promisee, and no time for

performance is specified, the engagement must be

performed within a reasonable time.

Explanation.- The question " what is a reasonable time " is in each particular case, a question of fact."

"55. Effect of failure to perform at fixed time, in contract in which time is essential.-

When a party to a contract promises to do a

certain thing at or before a specified time, or certain things at or before specified time, and fails to do any such thing at or before the specified

time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was

that time should be of the essence of the contract.

Effect of such failure when time is not essential.- If it was not the intention of the parties that time should be of the essence of the

contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss

occasioned to him by such failure.

Effect of acceptance of performance at time other than that agreed upon.- If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the

SA No. 183/15

promisee cannot claim compensation for any loss

occasioned by the non-performance of the promise

at the time agreed, unless at the time of such acceptance, he gives notice to the promisor of his intention to do so."

11) The provision of section 46 shows that when no time

is fixed for performance of contract, it needs to be performed

within reasonable time. The explanation to that section shows

that "what is ig reasonable time" depends on facts and

circumstances of each particular case and it is a question of fact.

When in the agreement, no other condition is mentioned like in

the present case, it becomes easy to ascertain the reasonable

time within which the promisor was expected to execute the sale

deed and the same can be said in respect of the promise of the

plaintiff to pay the remaining consideration. Thus, even if the

time limit of four months mentioned in the agreement is ignored,

it is not difficult to ascertain the date of cause of action in the

present case.

12) The provision of section 55 of the Contract Act shows

that if the time is fixed and the promisor fails to perform his part

of contract within the specified time, the contract becomes

voidable at the option of promisee. In such a case, it is open to

the promisee to accept the performance even after fixed time as

SA No. 183/15

contract becomes only voidable. Thus, the contract had become

voidable at the instance of promisee, if it is treated that time

was essence of contract. If the time was not essence of contract,

in that case, promisee becomes entitled to get compensation

from the promisor for loss caused to him due to failure of

promisor of performance of his part of the contract. Thus, in both

the cases the promisee can wait for the performance of the

promise by the promisor, but when the time was essence of

contract, the promisee cannot claim compensation for loss

occasioned for non-performance of promise at the time agreed

unless he had given notice to promisor of his intention to

recover, to get compensation also. These provisions show that

they are with regard to breach of terms and conditions of the

contract and they have no reference to the law of limitation.

13) From the aforesaid two provisions of Contract Act

and the law of Limitation already quoted, in the present case, it

can be said that even after it is presumed that time was not

essence of contract, the plaintiff ought to have filed suit within

reasonable time from the date of agreement. It ought to have

presumed by plaintiff that the promisor had refused to perform

her part of the contract. However, the pleadings and the

contents of the agreement shows that the time of four months

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was fixed and no explanation is given by the plaintiff as to why

there was such mention in the agreement. In view of these

circumstances, for the present matter, it can be said that the

time started to run after expiry of four months and the four

months need to be counted from the date of agreement.

14) The learned counsel for the appellant submitted that

the Courts below have not considered circumstances that there

is only oral evidence of plaintiff and there is nothing in rebuttal

in respect of the oral evidence. He submitted that when

evidence is given that plaintiff had approached Smt. Mathurabai

and Mathurabai had given assurance to execute the sale deed,

this unrebutted evidence ought to have been considered by the

Courts below and it ought to have been held that the remedy

was still in existence. This submission is not at all acceptable.

When the terms and conditions of the contract were embodied in

the document and there was condition like fixing of time of

performance, not much importance can be given to the oral

evidence of plaintiff though it is unrebutted.

15) The so called legal notice of plaintiff was issued on

23.7.2003 and so, it can be said that the notice was also issued

after the expiry of the prescribed period of limitation. It needs to

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be mentioned here that the first appellate Court has counted the

period from the date of sanction of mutation, though it could

have been counted after expiry of four months period fixed in

the agreement. Thus, even if the best possible case available to

the plaintiff is considered, it can be said that plaintiff filed suit in

the year 2004, when the mutation was effected in favour of

defendant Nos. 2 and 3 on 11.2.2000.

16)

It appears that defendant No. 1 Smt. Mathurabai, the

promisor, was not available to file written statement as she died

and written statement was filed by her two daughters. This

circumstance needs to be considered while considering the

contention of the learned counsel for the plaintiff that there is no

evidence in rebuttal. As Mathurabi was dead, the document

executed by her in the year 1988 is the version of Mathurabai

available at present in view of provision of section 32 (3) of the

Evidence Act. Fixing of the period was against her interest in

view of provisions of Contract Act already quoted.

17) For considering the right of plaintiff to get specific

performance of aforesaid contract, it was necessary for plaintiff

to satisfy the conditions given in section 16 (c) of the Specific

Relief Act. The provision of section 10 (a) (b) and explanation (1)

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to this section also needs to be kept in mind as this provision

was argued in support of the case of the plaintiff. These

provisions run as under :-

"10. Cases in which specific performance of contract enforceable.- Except as otherwise

provided in this Chapter, the specific performance of any contract may, i the discretion of the Court, be enforced -

(a) when there exists no standard for

ascertaining the actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done is

such that compensation in money for its non- performance would not afford adequate relief Explanation.- Unless and until the contrary is

proved, the Court shall presume-

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) ..............."

The relevant provision of section 16 (c) of the Specific Relief Act

is as under :-

"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-

                            (a)    ............
                            (b)    ...........
                            (c)    who fails to aver and prove that he has





                                                                  SA No. 183/15

performed or has always been ready and willing to

perform the essential term of the contract which

are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."

18) The aforesaid provisions of Specific Relief Act show

that there is discretionary power to the Court to grant relief of

specific performance of contract and in ordinary course, the

Court need to grant such relief when the contract involves

transfer of immovable property as breach of such contract

cannot adequately relieved by compensation in money. For

getting this relief, the conditions laid down in section 16 (c) need

to be specified by the plaintiff. The provision of section 10 can be

used by the Court only after the plaintiff satisfies the conditions

given in section 16 (c) of Specific Relief Act, 1963 and the

opportunity for satisfying the conditions laid down in section 16

(c) will be available to the plaintiff only if he is able to prove that

the suit was filed within limitation. It is needless to observe that

law of limitation is prescribed for such cases only in Limitation

Act and unless and until the suit is filed within limitation, within

the period as mentioned in Article 54 of Limitation Act, there will

not be any opportunity for using the provision of section 16 (c)

or section 10 of the Specific Relief Act. It is already observed

that the provisions of sections 46 and 55 of the Contract Act can

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be used for limited purpose, for ascertaining the cause of action.

These provisions can be used for giving effect to the provisions

of Limitation Act. The provisions of law already discussed and

the facts and circumstances of the present case show that the

cause of action arose after four months of the date of the

agreement and so, the suit filed in the year 2004 was hopelessly

time barred. The material available is considered by the first

appellate Court and the oral evidence of plaintiff cannot make

much difference in that regard.

19) On the point of readiness and willingness, there is no

specific pleading in the plaint which is necessary in view of the

wording of provision of section 16 (c) of the Specific Relief Act.

No date, year are mentioned about the so called steps taken by

the plaintiff. The suit was filed after about 15 years of the date of

contract when the price of the landed property must have

increased many times. Such conduct of the plaintiff needs to be

considered while using discretion. Thus, on one hand, she failed

to prove that she was ready and willing to perform her part of

contract and on that other hand, the aforesaid conduct of the

plaintiff needs to be considered against the plaintiff at the time

of using discretion given to the Court under section 10 of the

Specific Relief Act.

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20) The findings of the appellate Court on aforesaid

points are the findings on facts. So, this Court holds that there is

no point made out for which substantial questions of law can be

formulated.

21) The learned counsel for the plaintiff placed reliance

on some reported cases like AIR 2008 SUPREME COURT 1205

[Balasaheb Dayandeo Naik (Dead) Through L.Rs. and Ors.

Vs. Appasaheb Dattatraya Pawar, AIR 2012 SUPREME

COURT 2035 [Narinderjit Singh Vs. North Estate

Promoters Limited], AIR 2000 SUPREME COURT 434

[Velamuri Venkata Sivaprasad (Dead) by LRs. Vs. Kothuri

Venkateswarlu (dead) by LRs. and Ors.], AIR 1993

SUPREME COURT 1742 (1) [Smt. Chand Rani (dead) by

LRs. Vs. Smt. Kamal Rani (dead) by L.Rs.] and AIR 1999

SUPREME COURT 1441 [Vidhyadhar Vs. Mankikrao and

Anr.]. These cases are on the points like interpreting the

stipulations of the agreement to ascertain as to whether the

time was essence of contract for section 55 of the Contract Act,

the circumstance of escalation of price cannot be ground to deny

specific performance of agreement to sell in view of section 20

of Specific Relief Act if there is no pleading of hardship and if it is

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not proved that it will be inequitable to order of specific

performance of agreement, the scope of second appeal and the

point that if inadmissible evidence is considered by the Courts

below, substantial question of law can arise on that point and

the point that adverse inference which can be drawn against the

party who does not enter the witness box. There cannot be

dispute over these propositions made in the reported cases. The

facts and circumstances of each and every case are always

different. Sufficient discussion is made on the points which are

involved in the present matter and which are dealt with by the

District Court, first appellate Court. There is no scope of

interference in the second appeal and there is no material

available for formulation of substantial questions of laws.

22) In the result, the appeal stands dismissed. Civil

Application is also disposed of.

23) The learned counsel for plaintiff requested for some

relief to prevent the defendants from alienating the property,

but this relief is refused in view of the facts and circumstances of

the case already discussed.

[ T.V. NALAWADE, J. ] ssc/