Smt. Shakuntla Narang & Ors. vs Smt. Usha Raghuraman & Ors.
2008 Latest Caselaw 2307 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA 309-313/2005

                                        Reserved on : 28.11.2008
                                        Date of Decision : 19.12.2008

       SMT. SHAKUNTLA NARANG & ORS.            ...... Appellants
                         Through : Mr.Rajesh Rawal, Advocate

                                   Versus

       SMT.USHA RAGHURAMAN & ORS.      .........                    Respondents
                        Through : None

CORAM :
HON'BLE MR. JUSTICE V.K.SHALI, J

     1. Whether reporters of local papers may be
        allowed to see the judgment?             YES
     2. To be referred to the Reporter or not?    NO
     3. Whether the judgment should be reported in the Digest?       NO

                           JUDGMENT

V.K. SHALI, J:

1. This is a Regular Second Appeal filed by the appellant against the

judgment dated 16th May, 2005 passed by Sh.A.S.Yadav, Additional

District Judge, Delhi by virtue of which the learned Additional District

Judge, Delhi set aside the judgment/order dated 21st February, 2004 of

the learned Civil Judge dismissing the suit for specific

performance/injunction etc. and remanding the matter back to the Trial

Court for the purpose of trial.

2. Briefly stated the facts leading to the filing of the present Regular

Second Appeal are that one Sh.K.C.Narang (since deceased) defendant

no.4 in the suit and now being represented by his legal heirs Smt.

Shakuntla Narang, Miss. Sangeeta Narang, Mrs. Indu Mehta, Mrs. Sudha

Magoo and Sh.Subhash Narang who are all appellants are the owner of

property bearing No.F-91, Naraina Vihar, New Delhi-28. Sh. K.C.

Narang, the predecessor in interest of the appellants is purported to have

entered into an agreement to sell dated 6th January, 1988 with

respondent no.1 herein Smt.Usha Raghuraman (who was the plaintiff in

the suit) to sell their entire terrace of the Ground floor with right to

construct the upper floors for sale consideration of Rs.1,10,000/-. It

was alleged that the entire sale consideration had been paid by Smt.

Usha Raghuraman to the predecessor in interest of the appellant at the

time of signing of the agreement and the latter in execution of its part

performance of the agreement had not only executed agreement to sell

dated 6th January, 1988 but also handed over the physical possession of

the terrace of the Ground Floor to Smt.Usha Raghuraman-respondent

no.1. The appellants herein got the plans sanctioned for the purpose of

construction by respondent no.1. The respondent no.1 also raised

construction of the First Floor in the year 1988 but could not construct

the second floor on account of paucity of funds. Thereafter, she

requested the appellants herein to take necessary permission from the

Income Tax Authorities and DDA in terms of the agreement and to

execute the documents so as to perfect her title. K.C. Narang did not do

this, Smt.Usha Raghuraman respondent No. 1 was forced to issue a

notice on 9th July, 1993 calling upon K.C. Narang defendant no.4 in the

suit, to apply for sale permission and perfect her title. Since no heed

was paid, Smt. Usha Raghuraman filed a suit for Specific Performance,

Injunction and Declaration to the effect that she is the owner of property

of the first floor and above in respect of the suit property.

3. In the said suit, respondent no.1 Smt. Usha Raghuraman

impleaded DDA, UOI and Government of NCT who are respondent Nos.2,

3 and 4 respectively in the present appeal, as parties. On notice being

issued by the learned Civil Judge to respondent Nos.2 to 4 and the

appellants, some of them chose to file their written statement.

DDA/respondent no.2 choose to file the written statement denying

knowledge about the agreement to sell to have been executed by K.C.

Narang although it was stated by them that the suit property was a

leasehold property granted by the DDA to Sh.K.C.Narang on 20th April,

1968. So far as Union of India and Government of NCT of Delhi are

concerned, who are the respondent Nos.2 and 4 herein, they did not file

their written statement.

4. Sh.K.C.Narang, the predecessor in interest of the appellants herein

also filed their written statement and disputed the factum of agreement to

sell dated 6th January, 1988 having been executed by him in favour of

respondent no.1 Smt. Usha Raghuraman. He took the plea that as a

matter of fact, respondent no.1 Smt.Usha Raghuraman had approached

for taking the accommodation of the appellants on rent and on her

request, she was inducted as tenant in respect of the first floor of the

property on a monthly rent of Rs.2,000/- per month with the tenancy

commencing from 1st June, 1989 but the factum of having received a sum

of Rs.1,10,000/- was admitted by the predecessor in interest of the

appellants but it was stated that the said amount was received only by

way of rent and the same was adjusted towards payment of rent upto 31st

December, 1993. Thus on merits, the appellants contested the suit of

the plaintiff for Specific Performance and the other reliefs claimed by

respondent no.1. It may be pertinent here to mention that no plea of

limitation whatsoever was taken by the appellants in the suit.

5. The learned Civil Judge dismissed the suit vide order dated 21st

February, 2004 by holding that the suit is barred by limitation. In this

regard, the learned Civil Judge referred to the averments in paragraph 29

of the suit made by respondent no.1 Smt.Usha Raghuraman wherein she

had stated that the cause of action for filing the suit had arisen on 6th

January, 1988 when the agreement to sell was executed in her favour by

the appellants. The learned Civil Judge taking the plea that since

respondent no.1 herself is saying that the cause of action has accrued to

her on 6th January, 1989 and the period of limitation for filing a suit for

specific performance is only three years the suit was barred by limitation

as the same was filed on 22nd December, 1993. So far as the question

of reckoning the period of limitation from the date of notice dated 9th July,

1993 is concerned, it was stated by the learned Civil Judge that the said

notice is of no help to respondent no.1 Smt.Usha Raghuraman to enlarge

her period of limitation on account of the fact that in the suit itself, she

does not state anywhere on what date where and when she had

approached the appellants or their predecessor in interest Shri K.C.

Narang for the purpose of execution of the sale deed or for the purpose of

obtaining the permission from Income Tax authorities or the DDA as was

envisaged under the agreement. Thus, in the absence of any such

averment, the learned Civil Judge was of the view that the period of

limitation is to be reckoned with effect from 6th January, 1988 and not

with effect from 9th July, 1993 so as to enable the respondent no.1 to file

the suit on 22nd December, 1993. Accordingly, the learned Civil Judge

dismissed the suit of the respondent no.1 as being barred by limitation.

6. Respondent no.1 feeling aggrieved by virtue of the aforesaid

judgment of the learned Civil Judge dated 21st February, 2004 had

preferred a Regular First Appeal to the learned „District Judge, Delhi‟

which came to be heard and decided by Sh.A.S.Yadav, Additional District

Judge. The learned Additional District Judge set aside the judgment of

the learned Civil Judge holding that as the time was not the essence of

the agreement between the appellants and respondent no.1, therefore,

the suit of respondent no.1 could not be said to be barred by limitation.

For the purpose of this, the learned Additional District Judge referred to

Article 54 of Schedule 1 of the Limitation Act, 1963 which lays down that

the suit for specific performance must be filed within 3 years from the

date fixed for the performance of the contract, or, if no such date is fixed,

within three years when the plaintiff has noticed that the performance is

refused. The learned ADJ held that according to the agreement

between the parties the time was not the essence of the agreement and,

therefore, the period of limitation is to commence only after the notice

had been given to the appellants.

7. The learned ADJ, Delhi set aside the judgment of the learned Civil

Judge and remanded the matter back to the Trial Court to be decided on

merits.

8. I have heard the learned counsel for the parties and also gone

through the record. It is contended by the learned counsel for the

appellant that the following questions of law are arising in the present

Regular Second Appeal:

A. Whether suit for specific performance will be

maintainable beyond period of 3 years upon

performance of the agreement itself?

B. Whether is it necessary that there must be specific

date of the performance?

C. Whether is it sufficient that date for specific

performance is ascertainable from agreement or not?

D. Whether on performance of all obligations on the part

of beneficiary, is it still open for beneficiary to file a

suit for specific performance beyond period of 3 years?

E. Whether upon performance of obligations by the

beneficiary in pursuance to the agreement to sell, for

filing a specific performance suit, limitation would still

lie under later part of article 54 of the Limitation Act,

1963 or the earlier part of it?

F. Whether a party having performed all his obligation

can sleep over the matter for a period of 5 years and

can still take protection of Article 54 of the Limitation

Act, 1963?

G. Whether other reliefs of declaration and injunction

can be clubbed and granted in suit for specific

performance?

       H.    Whether      Court       can   set        up   independent

             plea/contention for a party?

       I.    Whether a suit for projecting possession of the party

             being   an   offensive    remedy     is    available   under

provisions of Section 53A of Transfer of Property Act?

J. Whether Section 53A is applicable in the present case

in view of the amendment made by Transfer of

Property (Amendment) Act, 2002?

K. Whether a suit by a Transferee is maintainable for

injunction to protect his possession despite the fact

suit for specific performance is barred by limitation?

L. Whether suit for specific performance was in time and

suit as such maintainable as filed by the plaintiff.

9. It was further contended by the learned senior counsel Mr. Rawal

that the present appeal raised questions of law as to what is meant for the

word "performance" as under the terms and conditions of the agreement.

According to the learned counsel for the appellants this constituted a

substantial question of law which needs to be interpreted in the instant

case. It was also urged that in the instant case respondent No. 1 on her

own saying had made the entire payment of the sale consideration to the

appellants or his predecessor-in-interest and she has also received the

possession of the property also, therefore, nothing remained to be

performed on the part of the appellants or his predecessor-in-interest.

This entire transaction was done on 6th January, 1988 and, therefore, the

period of limitation is to be reckoned with effect from 6th January, 1988.

If done so, the present suit for specific performance was prima facie

barred by limitation.

10. It was further contended by the learned counsel for the appellant

that even assuming though not admitting that the appellant was in

possession of the said premises in the capacity of the owner. By virtue

of Section 53A of the Transfer of Property Act she could at best defend her

possession against the appellants in pursuance to the part performance.

It was contended by the learned counsel for the appellant that Section

53A of the Transfer of Property Act can be used as a shield and not as a

word „sword‟ and, therefore, by taking help of this shield the present suit

for specific performance could not be maintained which had become time

barred though she could defend her possession. The learned counsel for

the appellant had also relied upon the judgment in 2002 (2) AD (SC) 22

titled Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba.

11. As against this, the learned counsel for the respondent no. 1 had

contended that as the appellants and his predecessor-in-interest had not

perfected their title, the respondent No. 1 was constrained to send a

notice to the appellants on 9th July 1993. In this notice, the appellants

were specifically directed that they must obtain the necessary permission

of the DDA as well as the Income Tax Authority to perfect the title of

respondent No. 1 and since they had failed to respond to the said notice

the cause of action accrued to the respondent No. 1 to file the present suit

for specific performance only on account of having remain silent to the

said notice. Reliance in this regard was also placed on Article 54 of the

Limitation Act, 1963 to the effect that according to the said Act the period

within which the specific performance suit is to be filed, the date fixed for

the performance of the contract or if no such date is fixed when the

plaintiff has an intimation that the performance is refused. Since the

appellant or his predecessor-in-interest had refused to respond to the

notice dated 9th July, 1993 the period of limitation at best is to be

reckoned with effect from 9th July, 1993 and hence the present suit of the

plaintiff is well within time.

12. I have gone through the judgments of the learned Civil Judge as

well as that of learned ADJ, Delhi. I have also gone through the

documents relied upon by respondent No. 1 in support of his case, apart

from the pleadings of the parties. Article 54 of the Limitation Act, 1963

provides as under:

"54.      For       specific     Three years       The   date   fixed    for   the

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

13. A perusal of the said Article clearly shows that the period of

limitation for specific performance is three years and this period is to be

reckoned from the date fixed for the performance of the contract or if no

such date is fixed when the plaintiff as an intimation that the

performance is refused.

14. A perusal of the agreement receipt and other connected documents

dated 6th January 1998 clearly shows that there was no specific time

fixed under the terms and conditions of the contract between the parties

for the performance of the agreement. The learned ADJ, Delhi while

dealing with this question as to whether the time was essence of the

contract or not has dealt with the said issue as under:

"9. In order to find out whether the time was essence of the contract or not. It is appropriate to look at the agreement to sell.

10. Last 5 lines of page 3 of the agreement are relevant, which are reproduced as under:

"The first party doth hereby agree to sell, convey and transfer the entire terrace of the ground floor with the right to construct the same as per bye-law, alongwith proportionate lease-hold rights etc. etc. unto the second party absolute and

After the word "and" para 2 starts on page 4 thereafter para 3. Both the are not relevant for deciding the controversy. Para 4 & 5 which are relevant are reproduced as under:

4. That the first party shall obtain permission to sell the said portion from the DDA or any other

concerned authority in favour of the second party or the nominee/s. However, the unearned increase is to be paid at the time of sale permission shall be paid by the second party.

5. That the first party shall obtain the Income Tax Clearance Certificate in form 34-A under the provisions of Section 230-A(1) of the Income Tax Act, 1961, to sell the said portion in favour of the second party or the nominee/s."

11. So under the agreement no date has been given for the performance of the agreement. The notice was given for the first time on 9.7.1993 and since the sale deed was not executed and the suit was filed in Dec. 1993."

15. I find myself in full agreement with the observations passed by the

learned ADJ, Delhi that under the agreement no date was fixed for the

performance of the agreement. That being so the case of the appellant is

governed by the latter portion of Article 54 of the Limitation Act, 1963 for

the purpose of finding out as to whether the suit for specific performance

is within limitation. This period is to be reckoned when the plaintiff has

noticed that the performance is refused. The respondent no. 1 as

reasonable person waited for considerable length of time for perfecting

her title and since this was not done despite the entire sale consideration

having been received, the respondent no. 1 was constrained to have a

notice and, therefore, file a suit for specific performance in December,

1993.

16. I do not find myself in agreement with the observations passed by

the learned Civil Judge that as the plaintiff has not given any specific

date, time or place when she was refused to perfect her title by the

appellant or his predecessor-in-interest, therefore, the suit by the

plaintiff is barred by the limitation by assuming that the period of

limitation is to be reckoned from the date of agreement that is 6th

January, 1988. The respondent No. 1 as a reasonable person before

embarking on litigation which was forced on her had given a notice on

19th July, 1993 to the appellants or his predecessor-in-interest to

obtained requisite permission under the agreement so that she could

perfect her title. No response was given to this notice dated 9th July,

1993, therefore, it was reasonable for the respondent No. 1 to assume

that the appellants or his predecessor-in-interest are not inclined to

perfect their title and hence she was left with no other alternative except

to file the present suit for the specific performance, therefore, the period

of limitation is to be reckoned in the instant case at best from 9th July,

1993 that is date on which the notice purported to have been issued to

the appellant. If that be so the suit of the plaintiff was within the period

of limitation and the same has been rightly held to be so by the learned

ADJ, Delhi. The learned ADJ, Delhi was perfectly right in setting aside

the judgment of the learned Civil Judge dated 21st February, 2004 and

remanding the matter back to the learned Civil Judge for the purpose of

trial. The submission of the learned counsel for the appellant that the

present appeal raises substantial questions of law with regard to the

interpretation of the word „performance‟ is untenable nor does the

questions formulated by the appellant in the appeal which are

reproduced in the appeal and hereinabove. None of the questions raises

any substantial question of law. Under Section 100 of the CPC the

Second Appeal is not admissible as a matter of right. The party wanting

the Second Appeal to be admitted must be able to show that his appeal is

involving a substantial question of law. Since this has not been done,

therefore, the present appeal of the appellant is dismissed.

No order as to costs.

(V.K.SHALI) JUDGE December 19th, 2008 RN/KP/RS