Smt. Sunita Aggarwal vs Smt.Manorma Aggarwal & Anr.
2009 Latest Caselaw 80 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+      RSA No.99/2003 & CM 373/2003


                                     Reserved on : 25.11.2008
                                     Date of Decision: 14.01.2009


       SMT. SUNITA AGGARWAL                    ...... Appellant
                         Through: Ms.Suruchi Aggarwal, Advocate


                               Versus


       SMT.MANORMA AGGARWAL & ANR. ......          Respondents
                       Through: Mr.Manish Sharma, Advocate.


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

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


                         JUDGMENT

V.K. SHALI, J:

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

judgment and decree dated 26th April, 2003 passed by Sh.S.M.Chopra,

the then Additional District Judge, Tis Hazari Courts, Delhi by virtue of

which the learned ADJ had upheld the judgment and decree dated 27th

January, 2003 passed by Sh. Rajesh Kumar Singh, Civil Judge

dismissing the suit for specific performance of the appellant.

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

Second Appeal are that the appellant had filed a suit for specific

performance against the defendants alleging therein that property

No.2742/1-A, Gali No.13, Ranjit Nagar, New Delhi-110008 measuring

about 209 sq. yards which was purchased by one Mr. Harish Chand

Aggarwal from its previous owner one Sh.Durgadas on 7th June, 1957 by

virtue of a registered sale deed. It is further alleged that after

purchasing the said property, one Mr. Sita Ram was inducted as a tenant

into the suit property by Late Sh. Harish Chand Aggarwal. Sh. Sita Ram

is purported to have further sublet the property to one Sh. Mushadi Lal

who is presently in occupation of the said property. Sh. Harish Chand

Aggarwal is purported to have expired on 3rd September, 1964 leaving

behind four sons and one daughter who are stated to have inherited the

property jointly as co-owners and legal heirs. One of the sons of Late

Harish Chand Aggarwal was Mr.J.K.Aggarwal who is the husband of

respondent no.1 and the father of respondent no.2. It is stated that

Sh.J.K.Aggarwal had inherited 1/5th share, which comes to 20% of the

suit property. It is stated that as per deed of partition the plot in

question was divided into five plots and the plot No.5 had fallen to the

share of Sh. J.K. Aggarwal. It is further alleged that Sh.J.K.Aggarwal on

7th June, 1993 had after partition of the property agreed to sell his 1/5th

share to the appellant for a total consideration of Rs.20,000/- out of

which a sum of Rs.5,000/- was alleged to have been paid by the appellant

to him at the time of signing of the agreement to sell. The balance

consideration of Rs.15,000/- was to be paid at the time of perfecting the

title of the appellant before the Sub-Registrar. It was alleged that

unfortunately Sh.J.K.Aggarwal died on 29th November, 1993 and after

his death the share of Sh.J.K.Aggarwal was inherited by his two legal

heirs i.e. his wife and daughter who are the respondents herein. It is

alleged that although Sh.J.K.Aggarwal was ready and willing to perfect

the title of the appellant during his life time yet the transaction could not

be completed. After the demise of Sh.J.K.Aggarwal, it is stated that the

appellant approached the respondents number of times to perfect her

title, however, all in vain. A notice was sent on 14th February, 1999

calling upon respondents to accept the balance sale consideration and

execute the sale deed in her favour in terms of the agreement to sell dated

7th June, 1993. It is alleged that although on receipt of this notice,

appellant was assured that needful would be done but this was not done

accordingly another notice dated 16th August, 1999 was issued to the

respondents. The respondents sent a reply dated 24th September, 1999

denying that their predecessor in interest having signed any agreement to

sell. On the contrary, it was alleged that Sh.J.K.Aggarwal around the

time in 1993 when the agreement to sell is purported to have been signed,

was confined in hospital and his elder brother one Sh.K.K.Aggarwal,

father of the appellant, obtained signatures on some papers which are

surreptitiously alleged to have been used to draw an agreement to sell on

the basis of which the present suit has been filed.

3. Notice was issued to the respondents/defendants, however, the

respondents despite service did not appear and consequently they were

proceeded ex parte. The appellant in support of her case has filed two

affidavits by way of evidence. The appellant‟s affidavit purported to

prove the agreement to sell Ex.PW2/1 and other documents Ex. PW1/1

to PW1/3 executed by Sh.J.K.Aggarwal. In addition to this, Sundar son

of Sh. Sudhir has also filed affidavit by way of evidence in support of her

case.

4. Learned Civil Judge after hearing arguments dismissed the suit of

the appellant on the ground that the same is barred by limitation. For

the purpose of limitation, learned Civil Judge referred to Article 54 of the

Limitation Act, 1963, which lays down a period of three years within

which the suit for specific performance has to be filed. It was observed

by the learned Civil Judge even if the period of limitation is reckoned with

effect from 14th February, 1999, it was observed that though the suit may

be within the period of limitation however, it was still inordinately

delayed. On account of this delay, it was observed by the Civil Judge

that the grant of relief under the Specific Relief Act is discretionary and

the same cannot be claimed as a matter of course by the appellant. On

the basis of this reasoning, the suit of the appellant for specific

performance was dismissed.

5. Feeling aggrieved by the judgment dated 27th January, 2003,

passed by the Ld. Civil Judge, the appellant preferred a Regular First

Appeal, which came to be heard by Sh. S.M. Chopra, ADJ, Delhi. The

learned Additional District Judge upheld the dismissal of the suit by the

learned Civil Judge as it did not find any infirmity in the judgment of the

Ld. Civil Judge. The First Appellate Court also observed that the

bonafides of the appellant were also suspect and so were the signatures

of Shri J.K. Aggarwal on the agreement to sell which were compared with

the signature of Sh.J.K. Aggarwal on the purported copy of the partition

deed, which is mark X. It may be pertinent here to mention that this

copy of the partition deed was filed by the appellant herself in the first

appeal.

6. The appellant feeling aggrieved by the judgment dated 26th April,

2003 passed by Sh. S. M. Chopra, learned Additional District Judge, Tis

Hazri Court, Delhi upholding the judgment and decree, and dismissing of

the suit passed by the learned Civil Judge dated 27th January, 2003 filed

the present Regular Second Appeal. In the appeal the learned counsel

for the appellant has formulated the following questions which according

to her are of substantial questions of law which are arising in the instant

appeal.

(i) Whether the plaintiff is not entitled to the decree for specific performance, when her averments, made in the plaint remained unrebutted, by the defendants/respondents, as the defendants did not choose to appear and contest the suit and did not file their written statement, nor appeared in the appeal, in spite of service?

(ii) Whether the suit for specific performance can be dismissed, on the grounds of alleged delay and laches, on the part of the plaintiff, otherwise the suit is well within the period of limitation?

(iii) Whether the first appellate court was justified in arriving at the conclusion, without any pleadings/allegations on the part of the defendants, that the signatures of Shri J. K. Aggarwal (Vendor) differ from the admitted signatures on the Partition Deed, while the Partition Deed itself confirms the execution of the agreement to sell and the defendants in their reply to the legal notice, admitted her signatures and that of Shri J. K. Aggarwal.

(iv) Whether the first appellate court was justified to make out a new case for the defendants that inordinate delay on the part of the plaintiff in coming to the court, is sufficient to decline the relief of specific performance.

(v) Whether the Trial Court erred in law inferring, without any evidence on record and without any opposition to the suit, from the defendants that there is delay in approaching the Court, even though the suit was well within limitation, particularly when the suit was between near relations and findings of delay, in approaching the Court, is based on mere ipse-dixit and is a result of surmises.

7. It was contended by the learned counsel Ms. Suruchi Aggarwal for

the appellant that the factum of the agreement to sell in respect of the

share of the respondents purporting to have been executed by their

predecessor-in-interest on 7th June, 1993 was not in dispute. It was

also urged that Late Sh. J. K. Aggarwal during his life time or even the

respondents herein who are the successor in interest of Sh. J.K.Aggarwal

would not deny to perfect her title. Since title was not perfected,

therefore, the appellant was constrained to first send a notice on 14th

February, 1999 to which again no reply was given them. The second

notice was sent on 16th August, 1999 asking them to perform their part of

the contract perfecting the title of the appellant after consideration of Rs.

15,000/- and since this was not done she filed a suit on 17th January,

2002 which is well within three years from the date of refusal of the

respondents to perform the specific performance part of their contract.

The learned counsel for the appellant contended that in terms of the

agreement, there is no specific time laid down for the performance of the

contract and accordingly, the suit was maintainable as the same was

filed within three years from the date on which the appellant came to

know about the refusal by the respondents to perform their part of the

contract. This refusal is to be taken from the date of a reply of the

respondents which is dated 24th September, 1999 and hence the suit of

the appellant is within time and has been wrongly dismissed by the

courts below. The learned counsel for the appellant in support of her

contention relied upon PARVATHARAJ GUPTA VS. K. C. JAYADEVA

REDDY (2006) 2 SCC 28 and GUNWANTBHAI MULCHAND SHAH &

ORS. VS. ANTON ELIS FAREL & ORS. (2006) 3 SCC 634.

8. The learned counsel for the appellant also contended that she has

filed an application bearing C.M. No. 373/2003 under order 41 Rule 27 of

the CPC for seeking permission to adduce additional evidence to prove

the partition deed mark „X‟ which had been executed among Late Sh. J. K.

Aggarwal and his brothers by virtue of which the suit property was

partitioned. It has been averred by the learned counsel for the appellant

in the application that although the other legal heirs of Late Sh. Hari

Chand had perfected the title of the appellant with regard to their

respective shares, it was only the Late Sh. J. K. Aggarwal or the

respondents herein who had failed to keep their promise of perfecting the

title of the appellant and therefore, it was necessary to prove the partition

deed between the parties. This partition deed has been taken

cognizance of by the learned Appellate Court. The learned counsel

contended that the proof of this document is very essential for the just

decision of the case. The appellant has placed reliance in support of

her application under Order 41 Rule 27 of the CPC on Lachhman

Singh(Deceased) through Legal Representatives and Others Vs.

Hazara Singh(Deceased) through Legal Representatives and Others

(2008) 5 SCC 444, North Eastern Railway Administration, Gorakhpur

Vs. Bhagwan Das 2008 (4) JT 587 and Sarada (Smt.) and Others Vs.

Manikkoth Kombra Rajendran (1996) 8 SCC 345 as well as Phool

Pata and another Vs. Vishwanath Singh and Others (2005) 6 SCC 40

to urge that additional evidence can be adduced even at the stage of the

second appeal.

9. The learned counsel for the respondent has contested the

submissions made by the appellant on both these grounds. So far as

the merits of the second appeal are concerned, it was contended by the

learned counsel for the respondent that the second appeal is

maintainable only if a substantial question of law is involved in the

appeal. As against this there is a concurrent finding of fact that the

suit of the appellant is barred by limitation although the reasoning which

has been given by the courts below is varying but the outcome of the

matter remains same. The suit having been filed after more than three

years from the date of the death of Sh. J. K. Aggarwal, it is barred by time.

It was also contended that even if it is assumed that there was no time

fixed for the specific performance of the agreement dated 7th June 1993

still it had to be performed within a reasonable time. As against this the

appellant has chosen to file the present suit after expiry of almost nine

years from the date of purported agreement to sell in question. The

learned counsel for the respondent also placed reliance on case titled as

State of Gujarat & Anr. Vs. Mahendrakumar Parshottambhai (2006) 9

SCC 772.

10. So far as the application of the appellant under order 41 Rule 27 of

the CPC for seeking permission to adduce additional evidence to prove

the partition deed is concerned, the learned counsel for the respondents

took this Court through the contents of the said application and pointed

out that the said application does not fall in any of the sub-clauses (a),

(aa) and (b) of the Order 41 Rule 27 of the CPC nor does the proof of the

said partition deed advanced the substantial justice as is sought to be

urged by the appellant. It was contended that the document which is

sought to be proved by the appellant was well within their knowledge as

the factum about the partition deed is mentioned in the suit itself.

Further a copy of the same was filed by way of a photocopy before the first

appellate court by the appellant herself and if at all such an application

was entertainable it ought to have been filed before the first appellate

court. Having failed to do so it is not open the appellant to maintain the

present application order 41 rule 27 of the CPC so as to fill up the lacuna

in their case by filing the present application at the stage of the second

appeal.

11. I have thoughtfully considered the submissions of the respective

sites and perused the judgments cited by the learned counsel for the

appellant.

12. First, I deal with the application under Order 41 Rule 27 of the CPC

filed by the appellant. One of the objections which was raised by the

learned counsel for the respondent that the present application under

Order 41 Rule 27 of the CPC has been filed at the stage of the Second

Regular Appeal, and therefore, ought not to be entertained. The

learned counsel for the appellant has cited a judgment titled as Phool

Pata and another Vs. Vishwanath Singh and Others (2005) 6 SCC 40

which was a case in which additional evidence was permitted to be taken

at the stage of the Second Regular Appeal. In my view that is not the issue

in this case. In a given case if the fact situation so warrants and the

requirement of Order 41 Rule 27 CPC are met, the Court may permit

additional evidence even in second appeal.

13. A perusal of under Order 41 Rule 27 of the CPC would clearly show

that the application for additional evidence can be filed at the appellate

stage provided the requirements mentioned in sub-clause 27 of the order

are satisfied.

"27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b)The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

14. A perusal of the aforesaid rule would clearly show that unless and

until any of the aforesaid three conditions is satisfied by the by the

appellant the additional evidence cannot be admitted at the appellate

stage. In the instant case the appellant in the suit itself has mentioned

that after the death of Late Sh. Hari Chand Aggarwal the suit property

was partitioned in five shares among the brothers which included one Sh.

J. K. Aggarwal and his brothers and sister as a consequence of which the

appellant was entitled to an area of 41.8 sq. mtrs. by way of plot No. 5.

Therefore, the factum of the partition having been done by meets and

bounds was within the knowledge of the appellant and it was open to the

appellant, if it so desired to place reliance on the partition deed, to prove

the same. The appellant does not seem to have placed reliance on the said

partition deed nor was the said deed filed before the Trial Court. After

the dismissal of the suit during the pendency of the appeal the appellant

herself had filed a photocopy of the said partition deed before the

appellate court. It could not be said that the document in question was

not within her knowledge or that it could not be produced despite due

diligence. The case of the appellant does not fall in clause (bb). The

case of the appellant also does not fall in clauses (a) or even in clause (b)

also as would be clear from the plain reading of the said sub-clauses.

The Court has not refused to admit the partition deed nor does the court

want to look to the partition deed in order to decide the case. The proof

of partition deed was not required to be produced for the pronouncement

of the judgment by the court. On the filing of the photocopy of the

partition deed the learned appellate court had compared the signatures

of Late Sh. J. K. Aggarwal on the purported agreement to sell dated 7th

June, 1993 with the signatures purporting to be appearing on the

photocopy of the partition deed filed by the appellant himself and

observed that the signatures do not tally and this raises doubt about the

signatures on the agreement to sell itself purported to have been executed

by late Sh. J. K. Aggarwal. But it is not on this ground alone that the

appeal has been dismissed. The learned ADJ has also agreed with the

finding of the learned Civil Judge that the suit of the appellant is barred

by limitation in view of Article 54 of Limitation Act, 1963 and it is in light

it has been observed that there is inordinate delay in filing the suit.

15. After having suffered dismissal of the first appeal it is not open to

the appellant now to file the appeal as well as the present application

under Order 41 Rule 21 of the CPC seeking permission to adduce

additional evidence to prove the partition deed by urging that the proof of

the partition deed is essential for the just decision of the case. On the

contrary, I am of the considered opinion that by filing an application at

such a belated stage of second appeal after having suffered an adverse

concurrent finding of the fact, the appellant has tried to fill up a lacuna

left in the case of the appellant. Even otherwise I do not feel that proof of

partition deed in any manner whatsoever advances the substantial

justice in the case.

16. The case of the appellant in the suit is that there was an agreement

dated 7th June, 1993 executed by Late Sh. J. K. Aggarwal and for a total

consideration of Rs. 20,000/- out of which a sum of Rs. 5,000/- was paid

to Sh. J. K. Aggarwal at the time of the execution of the agreement. It is

alleged that Sh. J. K. Aggarwal is purported to have never denied to

perfect the title of the appellant yet the appellant did not get the title

perfected. Admittedly, Late Sh. J. K. Aggarwal died on 29th November,

1993 and immediately on account of his death, the appellant did not file

the suit for specific performance and has averred in the plaint that

neither Late Sh. J. K. Aggarwal nor his successor in interest, namely, the

respondents denied the agreement yet they did not perfect the title of the

respondent, and therefore, she was constrained to give notices on 14th

February, 1999 and on 16th August, 1999 to which reply dated 24th

September, 1999 was received, and therefore, a suit was filed within a

period of three years from the said date. If this is the fact situation, I

fail to understand as to how the partition deed becomes relevant for the

proof of the agreement to sell or the performance of the said agreement to

specific performance. As against this in the application seeking

additional evidence a new case has been set up by stating that she has

also purchased the remaining 80% of the property in question from other

co-shares and they have perfected her title while as it was in fact of this

20% only that the respondent was trying to wriggle out. It is in my

opinion is totally an irrelevant consideration for allowing the application

for additional evidence.

17. Accordingly, I am of the view that not only the application under

order 41 Rule 27 of the CPC filed by the appellant is totally misconceived

as it does not satisfy the requirement of Order 41 Rule 27 of the CPC but

this is only a ploy to keep the matter pending so that it is used as a lever

for settlement. So far as the authorities which have been cited by the

learned counsel for the appellant with regard to adducing of additional

evidence are concerned, I am of the view that there is no dispute about

the proposition of law laid down thereunder but they are not applicable to

the facts of the present case. .

18. Accordingly, the application bearing No.373/2003 of the appellant

under Order 41 Rule 27 of the CPC is dismissed.

19. Coming back to the merits of the case there is no dispute about the

fact that Article 54 of the Limitation Act, 1963 specifies a period of three

years for filing the suit for specific performance unless and until the time

is specified therein under the agreement itself. The exact language of

Article 54 of the Limitation Act, 1963 of schedule I of the Limitation Act

reads as:

        "54 For specific       Three years     The date fixed for
       performance of a                        the    performance,
       contract.                               or, if no such date
                                               is fixed, when the
                                               plaintiff has notice
                                               that performance is
                                               refused."

20. Admittedly, in the instant case there is no dispute about the fact in

terms of agreement to sell dated 7th June, 1993 time was not specified.

Therefore, the second limb of the aforesaid article comes into operation

that is that the suit has to be filed within the period of three years from

the date on which the plaintiff/appellant became aware of the refusal to

perform the specific performance by the respondent. If that be the

condition then the period of limitation is to be reckoned from the date

from such a date.

21. It may be pertinent here to refer to Section 46 of the Indian

Contract Act, 1872 also which reads 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 application by the promise, and no time for performance is specified, the engagement must be performed within a reasonable time."

22. A perusal of Section 46 of the Contact Act, 1872 specifically lays

down that if no time for performance of contract is specified then it is to

be performed within a reasonable time. The explanation to the Section

specifically laid down that what constitutes reasonable time is a question

of fact in each of the case.

23. The appellant has filed a suit for specific performance in which

para 6 and 7 reads as under

(6) That Shri J. K. Aggarwal, the predecessor in interest of the defendant died on 29.11.1993 and the defendants are the legal heirs of Shri J. K. Aggarwal.

(7) That even after the death of Shri J. K. Aggarwal, the plaintiff approached the defendants for acceptance of the balance sale consideration amount and for section of

measuring 41.8 sq. yards) but all the time the defendants had been postponing the same on one lame excuse or the other. Being close relations, the plaintiff did not insist for execution of the sale deed and acceptance of the balance sale consideration amount

but the defendants never denied the execution of the same.

24. There is no dispute on the fact that respondents were set ex-parte

as they had failed to appear despite service. The appellant in support of

his case had filed two affidavits by way of evidence one that of his own self

and another that of PW-2. In the evidence the agreement dated 7th

June, 1993, Ex.PW1/1 a first notice as exhibit PW 1/1 on 14th February,

1999 and second notice on 16th August, 1999 exhibit PW1/2 to which

reply dated 24th September, 1999 exhibit PW1/3 have been proved.

Although in the plaint it has been averred that Late Sh. J. K. Aggarwal or

his successor in interest, namely, respondents had been giving lame

excuses for perfecting the title of the appellant yet the appellant did not

take any effective step to get her title perfected from the court within a

reasonable time. No averment has been made much less evidence

adduced to show the date, time or the place where Late Sh. J. K. Aggarwal

or their successor in interest, namely, the respondents were approached

and they admitted the agreement to sell and yet kept on postponing the

execution of the sale deed in favour of the appellant. The general

principle of proof is contained in Section 101 of the Evidence Act, 1872

which lays down that one who asserts must prove. The appellant has

failed to prove as to when and how she had approached Late Sh. J. K.

Aggarwal or the respondents for the purpose of perfecting her title or

when they had refused. On the contrary, there is no evidence that at

any point of time the appellant during the life time of Late Sh. J. K.

Aggarwal had approached him during his life time for the purpose of

perfecting her title. Even if it is assumed that Late Sh. J. K. Aggarwal

was not approached during his life time for the purpose of perfecting the

title of the appellant at least from the date of his death that is on 29th

November, 1993 the appellant ought to have gone to the Court for the

purpose of perfecting her title as the death of Late Sh. J. K. Aggarwal

meant literally refusal which was known to the appellant. The

appellant could not simply make an averment in the plaint without any

proof that she had been approaching Late Sh. J. K. Aggarwal during his

lifetime and thereafter his successor in interest who had been avoiding

and then one fine morning wakes up and gives a notice on 14th February,

1993 to the respondents for the purpose of perfecting her title followed,

by another notice on 16th August, 1999.

25. Section 46 of the Contact Acts specifically lay down that if no

specific time is laid down for the purpose of performance then the same is

to be performed within a reasonable time and certainly giving of notice

almost after 5 ½ years of the death of Late Sh. J. K. Aggarwal for the

purpose of invoking the jurisdiction of the Civil Court and maintaining a

suit for specific performance cannot be said to be a reasonable time by

any stretch of imagination and therefore, the learned Civil Judge was

perfectly right in dismissing the suit for specific performance as being

barred by time and similarly the appellate court had also taken a correct

view by upholding such a dismissal by observing that specific relief is a

discretionary relief and since there has been inordinate delay on the part

of the appellant invoking the jurisdiction of the court, therefore, the same

cannot be granted. The concurrent finding of the courts below that of a

Trial Court and first appellate court in dismissing the suit of the

appellant as barred by time is not suffering from any illegality or

perversity. On the contrary, the said finding is a question of fact which

cannot be interfered with by the second appellate court. Merely,

because the appellate court has gone a step further in observing that the

signatures on the main agreement to sell of Late Sh. J. K. Aggarwal do not

tally with the signatures on the photocopy of the partition deed mark „X‟

does not in any way digress from the main findings of the courts below

that the suit is barred by time. Nor this observation entitle the appellant

to file the application under order 41 rule 27 of the CPC by urging that the

proof of partition deed is essential for the just decision of the case or that

it would advance substantial justice. This plea of the appellant is

totally misconceived and bereft of any merit.

26. The two authorities which have been cited by the appellant on the

question of limitation also do not help the appellant in any manner

whatsoever as they are reiterating the principle of limitation under Article

54 of the Limitation Act, 1963 for the purpose of filing the suit for specific

performance. In R.K.Parthavatharaj Gupta's case (supra), the apex

Court held that in respect of a property for sale of immovable property

time is not the essence of the contract but the question as regards the

conduct of the party must be considered the background of the case. In

the said case, the time for performance was not fixed in the agreement

but notice having been issued by the seller in the said case on 24th April,

1984 requiring the respondent/purchaser to perform his part of the

contract within 15 days of the receipt of the notice failing which the

agreement would stand cancelled the respondent/purchaser had notice

about the refusal to perform the contract after expiry of 15 days and

accordingly, the suit having been brought after more than three years

after the expiry of 15 days was held to be barred by time.

27. So far as the present ase is concerned, the very fact the seller Sh.

J.K. Aggarwal died on 29th November, 1993, the appellant/purchaser is

deemed to have notice about the inability of the deceased seller

performing his part of the contract and therefore, the appellant ought to

have filed the suit within three years of the death of Sh.J.K.Aggarwal.

This was not done and on the contrary, the appellant waited for 5 ½ years

and issued notice on 14th February, 1999 and then 16.8.1999, and

thereafter has chosen to file the suit for specific performance which is ex

facie barred by time. The appellant can be permitted to wait at her will

and then one fine morning set up and gives a notice to the respondent

and then wait for the reply or assure refusal and then file the suit so as to

bring his suit within limitation. On the contrary, it shows that the

conduct of the appellant, that the suit being barred by time has sought to

be circumvented by giving a notice and then trying to reckon the period of

limitation with reference to the same.

28. Similarly, in Anuwanti Bhai's case (supra) also the Apex Court has

held that where no time for performance is fixed, it must be performed

within envisaged in Section 46 of the Contract Act. This aspect has also

been discussed in detail hereinabove and this authority also does not

help the appellant in any manner whatsoever. The facts of this reported

case are slightly different in as much as the relief of injunction was also

prayed unlike in the present case and, therefore, the Apex Court had set

aside the judgment of the High Court holding that the suit is barred by

time so and as to consider the question of relief of injunction.

29. The so called substantial questions of law which are purported to

have been formulated the details have been given hereinabove are

essentially questions of fact which have already been answered by the

Courts below by a concurrent finding against the appellant. They can

by no stretch of imagination be termed as substantial question of law.

30. For the forgoing reasons, the Regular Second Appeal of the

appellant is dismissed with cost of Rs.10,000/-.

V. K. Shali (Judge)

14th January, 2009 RN/KP/RS