Madras High Court

M. Mukhya Prana Rao (Deceased) vs A.R. Prathaban on 9 March, 2022

                                                                                   S.A.No.201 of 2007



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 09.03.2022

                                                         CORAM

                                  THE HONOURABLE MRS. JUSTICE R.HEMALATHA
                                                    S.A.No.201 of 2007


                     1. M. Mukhya Prana Rao (deceased)
                     2. Pushpalatha M. Rao
                     3. K.M. Sudha                                                   ...Appellants

                         Appellants 2 & 3 brought on record as LRs of the
                         deceased sole appellant vide order of court dated
                         16.08.2017 made in CMP Nos. 12146 to 12148/2016 in
                         S.A. No.201/2007.

                                                            Vs.

                     A.R. Prathaban                                                ... Respondent

                     Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
                     decree and judgment dated 04.08.2006 passed in A.S. No.87 of 2004, on
                     the file of the I Additional District Court, Coimbatore, upholding the
                     decree and judgment dated 30.08.2000 passed in C.F.R.(O.S.) No.20031
                     of 2000, on the file of the Principal Subordinate Court, Coimbatore.


                                   For Appellants         : Mr.S. Mukunth
                                                           for M/s. Sarvabhauman Associates
                                   For Respondents        : Mr.R.T. Doraisamy
                                                           for Mr. B. Mutharasan

                     Page 1 of 14

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                                                                                  S.A.No.201 of 2007



                                                      JUDGMENT

The unsuccessful plaintiff before both the courts below has

filed the present second appeal.

2. The minimum facts that are required for the disposal of the

present appeal are as follows:

The appellant entered into a sale agreement dated 16.11.1987

with the respondent for purchase of the suit property. The sale

consideration was fixed as Rs.2,30,000/-, out of which Rs.1,00,000/- was

paid towards advance on 03.12.1987. The appellant also subsequently

paid a sum of Rs.50,000/- to the respondent. As per the terms of the

contract, the transaction should be completed within six months and

though the appellant was ready and willing to perform his part of the

contract, the respondent failed to execute the sale deed. However, the

respondent issued a legal notice dated 20.09.1997 calling upon the

appellant to pay the balance sale consideration and get the sale deed

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executed in his favour. The appellant, on receipt of the said notice,

issued a reply notice dated 13.10.1997 to the respondent. The respondent

also filed a suit for recovery of possession of the suit property in

O.S.No.95 of 1998. Since the respondent failed to perform his part of

the contract and execute the sale deed in favour of the appellant, the

appellant filed the suit for specific performance before the Principal

Subordinate Judge, Coimbatore.

4. The learned Principal Subordinate Judge, Coimbatore,

rejected the plaint vide his order dated 30.08.2000 by observing that

since the suit is filed after a lapse of nearly 15 years, it is barred by

limitation.

5. Aggrieved over the same, the appellant filed an appeal in

A.S. No.87 of 2004 before the Additional District Court, Coimbatore.

The learned Additional District Judge, Coimbatore, also dismissed the

appeal filed by the appellant vide his decree and judgment dated

04.08.2006 on the ground that the suit is barred by limitation as per

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Article 54 of the Limitation Act.

6. Now the present second appeal is filed by the appellant on

the following substantial questions of law :

i. Whether the courts below are right in rejecting the plaint even at

the threshold on the ground of limitation when the conduct of the

respondent/defendant would clearly reflect acquiescence and

novation of the agreement of sale itself.

ii. Whether the courts below are right in applying the first limb of

Article 54 of the Limitation Act when on facts it is only the second

limb that would apply.

iii. Whether the courts below are right in rejecting the plaint on the

ground of limitation when the same is a mixed question of law and

fact and can be established through evidence.

7. Heard Mr. S. Mukunth, learned counsel for the appellant and

Mr.R.T. Doraisamy, learned counsel for the respondent.

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8. The contention of the appellant is that he entered into a sale

agreement on 16.11.1987 and paid an advance of Rs.1,00,000/-. Though

it was averred in the plaint that the appellant was always ready and

willing to perform his part of the contract, he did not take any steps to get

the sale deed executed in his favour as is seen from the pleadings in the

plaint. Only the respondent had issued a notice on 20.09.1997 and

thereafter the appellant filed a suit in C.F.R. (O.S.) No.20031 of 2000

before the Principal Subordinate Judge, Coimbatore. The period of

limitation for filing the suit for specific performance as per Article 54 of

the Limitation Act is three years and the period commences from the date

fixed in the contract or, if no date is fixed, from the date of notice of

refusal to perform. In the instance case, the time for completion of the

contract is mentioned as six months. Though it is settled law that time is

not the essence of contract as far as the immovable properties are

concerned, the appellant did not take steps to complete his part of the

contract and after a lapse of 13 years, he filed the suit for specific

performance of the contract and that too, after issuance of notice by the

respondent on 20.09.1997. It is appropriate to extract the judgment of

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the first appellate court.

"8. The counsel for the respondent emphasized that from the reading of the plaint itself, it is clear that the period of limitation commenced immediately after the expiry of 6 months time fixed as per clause 3 of Agreement and the 3 years period of limitation starts from that date. Further, he also contended that even if that is not taken into account, it is an admitted fact by the appellant himself that on 13.9.91, he wrote a letter to his father to pay the tax which he fails to do and on 12.03.1994, he wrote a letter to the bank under which the suit property alleged to have been mortgaged in its reply notice also he has referred about a letter dt. 27.4.90. requesting for the arrangement of the registration. Taking into account of these admitted facts, the period of limitation has expired long back and the date of notice of refusal to perform the contract is not on 26.7.97, as alleged by the appellant/buyer, but it was much earlier to this. He relied upon the Judgment rendered by the Hon'ble High Court in, "S.Maruthai and another Appellants Vs. Gokuldoss dharam Doss and four others ...

Respondents.

(reported in 1999 (3) C.T.C.724)

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Wherein it has been stated that as per section 9 of the Limitation Act, the period of limitation begins to run will not stop running due to subsequent disability or inability to institute suit. Mere possession of property will not save suit from law of limitation." Further in that Judgment it has been held that, "When there is no specific condition in the contract, to furnish no objection certificate from the authorities, non furnishing of such certificate will not save the limitation".

Further, he also relied upon the Bench Judgment of Hon'ble High Court, rendered in P.Sivan Muthiah and others -- Appellants Vs. John Sathiavasagam -- Respondent (Reported in 1990 (1) MLJ PAge 490).

"The first part of Article 54 of the Limitation Act could be invoked only when there is a definite date fixed for performing the contract. It is true that the expression 'date fixed' could mean either the date expressly fixed or the date which can be fixed with reference to a future even which is certain to happen. If on the other hand, the date is to be ascertained, depending upon an event which is not certain to happen, this part of Article 54 is not at all applicable. In that contingency, it is only the latter part of Article 54 that could be invoked treating the case as one in which no date has been fixed for performance and that would be three years from the date when the plaintiff has notice that performance is refused."

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The counsel for the respondent submitted that from the plaint as well as from the documents filed along with the plaint, it is clear that the appellant/buyer has not come to the court seeking the equitable relief of specific performance within the period of limitation, and even assuming that the date of notice of refusal as the commencement of period of limitation, the suit has been filed only at the fag-end of the third year. The notice is dt. 26.9.1997 whereas the suit has been filed on 10.7.2000 which is not within reasonable time.

10. The learned counsel for the respondent emphasized that the plaintiff/buyer having put in possession was not ready and willing to perform his contract therefore he was put to notice that the defendant/seller is not ready to perform the contract, long back. Hence, the suit filed after 13 years from the date of contract is barred by limitation. Order rejecting the plaint by the trial court is perfectly sustainable.

11. In the light of the submissions made by the rival parties, and the perusal of the plaint and documents filed along with the plaint, and the judicial pronouncements, it is clear that,

1. Suit can be rejected at the inception stage itself only if there is no material to show, that the suit is filed within

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limitation.

2. If in the contract time for performance is fixed, the limitation is 3 years from the time fixed.

3.If no time is fixed then the limitation is 3 years from the date of notice of refusal to perform by the other side.

12. The date of agreement is 16.11.1987. Period to perform contract is 6 months as per clause 3 of the agreement that expired on 15.5.1978. It is pleaded by the plaintiff that he was repeatedly asking the vendor to receive the balance sale consideration and execute the sale deed. He has also mentioned some dates such as 24.7.90, 13.9.91, 12.3.95. These periods extends to nearly 7 years from the date of contract. The plaintiff has not filed the suit for specific performance inspite of the non response by the respondent/seller. This fact is admitted by the plaintiff.

13. In the view of this court, the second limb of Article 54 does not contemplate written notice of refusal. The conduct of the party is sufficient to infer refusal to perform. From the pleading of the appellant herein, it is clear that even as early as 24.7.90 the seller has not complied his request. He should not have waited till specific denial or refusal from the seller. He should have approached the court within a reasonable time for the relief.

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14. The Supreme Court has pointed out in,

"N.Balakrishnan Vs. M.Krishna Murthy (1998) (7) SCC 123)"

and referred by JUSTICE ARIJIT PAYSAYAT in Popat and Kotecha Property Vs. State Bank of India Staff Association (reported in CDJ 2005 SC

625).

"Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never re-visit. During the efflux of time, never causes would sprout up necessitating never persons to seek legal remedy by approaching the courts. So, a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae UT SIT finish lithium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time".

"T.Arvindam Vs. T.V.Satyapal (reported in 1997 (4) SCC, 467" the Apex Court has held that,

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"The trial court must remember that if on a meaningful - no formal - reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C., Am activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI) and must be triggered against them."

This view has been reaffirmed by the Supreme Court again in, Srinivasa Murthy and others Vs. Mariyamma (Dead) by proposed Lrs. and others (reported in CDJ 2005 SC 515).

15. On reading of the plaint, and the accompanying document in toto, it is clear that the respondent/seller by his conduct has declined to perform his part of contract and same has been made known to the appellant/buyer, Long before the notice dt. 26.9.97. The failure on the part of the appellant/buyer to believe the existence of such fact is unfortunate. The plaint on the face of it is hopelessly barred by limitation. Therefore, order passed by the trial court is

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hereby confirmed."

The above observations of the first appellate court are based on sound

principles of law and do not require any interference by this court. It is

also brought to the notice of this court that the suit filed by the

respondent for the recovery of possession of the suit property from the

appellant in O.S. No.95/1998 before the Principal Subordinate Judge,

Coimbatore, was decreed on 29.03.2019. In any event, as far as the

present case is concerned, the appellant has not made up any case

warranting this Court to interfere with the findings of the first appellate

court. Accordingly, the substantial questions of law 1 and 3 are

answered against the appellant. As far as the second substantial question