Bombay High Court
Prakash Dnyaneshwar Nagare And ... vs Taibai Mahadev Dhumal And Ors on 25 February, 2021
Bench: C.V. Bhadang
19-sa-24-2021 with ia-3479-2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.24 OF 2021
1. Prakash Dnyaneshwar Nagare }
}
2. Vidya Rajendra Nagare }
Both R/o. Prashant Society, }
Plot No.43, Kothrud, Pune-29 } ..Appellants
Vs.
1. Taibai Mahadev Dhumal }
Since Deceased through Legal Heirs }
Digitally signed
Nilam
2. Maruti Mahadev Dhumal }
by Nilam Kamble
Kamble Date: 2021.02.26
15:42:31 +0530
R/o. 29/1/21, Old Bavan Chawal }
Kadam Road, Kala Chowky, Mumbai }
3. M/s.Sanjay Associates }
A registered partnership firm }
Office at Plot No.3, Gujrath Colony, }
Kothrud, Pune-411 029 }
4. Sanjay Suresh Jape }
R/o. Govt. Polytechnic Staff Quarters }
Pune University Road, Pune-411016 }
5. Sanjay Maruti Dhumal }
R/o. Flat No.1, Malvika Apt. }
S.No.78, Bhusari Colony, }
Kothrud, Pune-411 038 } ..Respondents
----
Mr.Atul Damle, Senior Advocate a/w Mr.Kuldeep U. Nikam for the
Appellants.
Mr.Yuvraj P. Narvankar a/w Mr.Adwait A. Agashe for the
Respondents.
----
N.S. Kamble page 1 of 10
19-sa-24-2021 with ia-3479-2020
CORAM : C.V. BHADANG, J.
DATE : 25th FEBRUARY 2021
JUDGMENT :
1. This Second Appeal is heard on the following
substantial question of law by consent of parties.
Whether the Courts below were justified in
dismissing the suit filed by the appellants for specific
performance of the contract of sale, on the ground of
limitation?
2. The brief facts necessary for the disposal of the appeal
may be stated thus:-
That land admeasuring 11,000 sq.ft. bearing Plot No.3
(Survey No.88/4+138+161) situated at Mauje-Kothrud, Pune
which is more specifically described in the plaint happens to be the
subject matter of dispute.
3. The appellants filed Special Civil Suit no.1816 of 1998
against the respondents before the learned Civil Judge Senior
Division at Pune for specific performance of a contract of sale dated
18th April 1992 entered into by the respondents with the appellants.
N.S. Kamble page 2 of 10
19-sa-24-2021 with ia-3479-2020
As per the terms of the said agreement (Visar Pavati) the sale deed
was to be executed after the vendors obtaining permission under
The Urban Land (Ceiling and Regulation) Act, 1976 ("Ceiling Act"
for short).
4. It was contended that the vendors failed to obtain
necessary permission and perform their part of the contract
although the appellants were all along ready and willing to perform
their part.
5. It may be mentioned that the suit property was agreed
to be purchased by the appellant at the rate of Rs.121 per sq.ft. and
an amount of Rs.25,000/- was paid as earnest. Be that as it may the
appellants issued a public notice on 03 rd August 1995 calling upon
objections, if any, from the public at large to the execution of the
sale deed intimating that else the appellants would proceed to get
the sale deed executed. The record discloses that the respondent
Taibai raised an objection on 13 th August 1995 contending that the
said agreement of sale has been cancelled. She claimed that the
agreement was sham and bogus and not binding on them.
N.S. Kamble page 3 of 10
19-sa-24-2021 with ia-3479-2020
6. The parties led oral and documentary evidence. The
learned trial Court by a judgment and decree dated 04 th April 2005
inter alia held that the suit was barred by limitation and dismissed
the suit. Feeling aggrieved the appellants challenged the same
before the District Judge in Civil Appeal No.174 of 2016.
7. The learned District Judge framed the following points
for determination :-
Sr.No. Points
1 Whether the suit is within limitation ?
2 Whether plaintiffs are entitled for damages and
refund of earnest amount of claim ?
3 Whether it is necessary to interfere with the
judgment passed by learned trial Court ?
4 What Order
8. The learned District Judge answered the point Nos.1 to
3 in the negative and by a judgment and decree dated 28 th February
2020 the appeal came to be dismissed. Hence this appeal.
9. I have heard Mr.Damle, the learned Senior Advocate for
the appellant and Mr.Narvankar, the learned counsel for the
respondents. Perused record.
N.S. Kamble page 4 of 10
19-sa-24-2021 with ia-3479-2020
10. It is submitted by Mr.Damle the learned Senior
Advocate for the appellants that although there was no specific date
fixed in the agreement for execution of the Sale Deed the agreement
of sale envisaged execution of the sale deed after obtaining of a
permission under the Ceiling Act which was never obtained. Thus in
the submission of the learned counsel, this is a case which would fall
under the first part of Article 54 of the Limitation Act. It is
submitted that the Courts below were in error in holding that the
suit would be governed by the later part of Article 54 of the
Limitation Act. On behalf of the appellant reliance is placed on the
decision of the Supreme Court in Panchanan Dhara and Others V/s.
Monmatha Nath Maity (Dead) Through Lrs. & Another1
11. On the contrary it is submitted by the learned counsel
for the respondents that the case would be governed by the later
part of Article 54 inasmuch as there was no specific date fixed for
the performance and by virtue of the objection raised by Taibai on
13th August 1995 the plaintiff had clear notice that specific
performance was refused and therefore the suit ought to have been
filed within three years thereof.
1 (2006) 5 Supreme Court Cases 340
N.S. Kamble page 5 of 10
19-sa-24-2021 with ia-3479-2020
12. He submitted that the decision in the case of
Panchanan Dhara and Ors. is distinguishable inasmuch as in that
case it was established on record that the time fixed for performance
of the contract was extended by the parties.
13. On behalf of the respondent reliance is placed on the
decision of the Supreme Court in Janardhanam Prasad V/s.
Ramdas2.
14. I have carefully considered the rival circumstances and
the submissions made. Indisputable a suit for specific performance
is governed by Article 54 of the Limitation Act which reads thus :-
Description of Period of Time from which period begins to
suit limitation run
54 - For Specific Three The date fixed for the
performance of years performance, or, if no such date is
a contract fixed, when the plaintiff has
notice that performance is
refused.
It can thus clearly be seen that under Article 54 the
period of limitation for filing a suit for specific performance is three
years. Insofar as the starting point of the limitation is concerned
Article 54 envisages two distinct parts. The first part relates to a case
2 (2007) 15 Supreme Court Cases 174
N.S. Kamble page 6 of 10
19-sa-24-2021 with ia-3479-2020
where there is a specific date fixed for the performance of the
contract of sale. The later part relates to a case where no such date
is fixed. In such a case the suit has to be filed within three years
from the time when the plaintiff had notice that the performance is
refused.
15. In my considered view this is a case which is clearly
governed by the later part, inasmuch as there was no specific date
fixed in the agreement of sale. A bare perusal of the objection
raised by Taibai on 13th August 1995 would indicate that she had
disowned the agreement of sale and also claimed that the agreement
of sale was cancelled. There cannot be a more explicit notice of
refusal within the meaning of Article 54 of the Limitation Act. In the
facts and circumstances of the present case it is not possible to
accept that the suit was governed by the first part of Article 54 of
the Limitation Act.
16. On behalf of the appellants reliance is placed on
paragraph 27 of the decision in the case of Panchanan Dhara &
Others which reads thus :-
"27. Performance of a contract may be dependent
upon several factors including grant of permission by
N.S. Kamble page 7 of 10
19-sa-24-2021 with ia-3479-2020
the statutory authority in appropriate cases. If a certain
statutory formality is required to be complied with or
permission is required to be obtained, a deed of sale
cannot be registered till the said requirements are
complied with. In a given situation, the vendor may not
be permitted to take advantage of his own wrong in not
taking steps for complying the statutory provisions and
then to raise a plea of limitation."
17. The aforesaid observations have to be read in the
context of the factual situation obtaining in that case. It is
undisputed that in the said case there was a specific date fixed for
the performance of the contract. It appears that the parties had
extended the period and it was in these circumstances, held that the
time to file a suit shall be deemed to start running only when the
plaintiff had notice that the performance is refused. In that case on
facts it was found that the performance of the contract was refused,
only on 21st August 1985 and the suit was filed, soon thereafter.
Thus in my considered view, the case turned on its own facts.
18. In the case of Janardhanam Prasad it has been held that
the Court while applying the period of limitation would be first
required to enquire as to whether any time was fixed for
performance of agreement of sale and if it is so fixed the suit must
N.S. Kamble page 8 of 10
19-sa-24-2021 with ia-3479-2020
be filed within the period of three years failing which the same
would be barred by limitation. However, where no time for
performance is fixed, it is for the Courts to find out the date on
which the plaintiff had notice that the performance was refused and
on arriving at a such a finding to see whether the suit was filed
within three years thereafter (see para 12). As noticed earlier in the
present case, it is more than explicit that the performance was
refused on 13th August 1995 and the suit having been filed on 21 st
November 1998 that is beyond the period of three years from the
date of refusal was clearly barred by limitation.
19. The First Appellate Court has held that the objection
dated 13th August 1995 would mean that there was refusal by the
defendant No.1 to obtain the permission for transfer and also for
specific performance of the contract. It is in these circumstances
that the First Appellate Court has held that the case would fall under
the later part of the Article 54 of the Limitation Act. Thus no
exception can be taken to the concurrent finding recorded by the
Courts below dismissing the suit on the point of limitation. The
point is answered in the affirmative. In the result the Second Appeal
is dismissed with no order as to costs.
N.S. Kamble page 9 of 10
19-sa-24-2021 with ia-3479-2020
20. At this stage the learned counsel for the appellant
prayed for continuation of the interim relief. It is pointed out that
by way of the interim relief the respondents were directed not to
create any third party interest in the suit property. A specific
statement is made that the said interim relief is operating all along
from the year 2006.
21. The learned counsel for the respondent has opposed the
extension of the interim relief.
22. However, considering the fact that the interim relief is
operating from the year 2006, the said interim relief restraining the
respondents from creating third party interest in the suit property
shall continue to operate for a period of eight weeks from today.
C.V. BHADANG, J.
N.S. Kamble page 10 of
