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Babaji Charan Sahu and ors. Vs. Rajendra Narayan Dash and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 53 of 1988
Judge
Reported inAIR2004Ori160; 98(2004)CLT526
ActsLimitation Act, 1963 - Schedule - Article 54
AppellantBabaji Charan Sahu and ors.
RespondentRajendra Narayan Dash and ors.
Appellant AdvocateB. Routray, ;U.K. Samal, ;S. Swain and ;B. Kar, Advs.
Respondent AdvocateB.H. Mohanty, Adv.
DispositionAppeal dismissed
Cases ReferredK. Kallaiah v. Ningegowda
Excerpt:
.....suit and directed defendants to perform their part of agreement by executing and registering sale deed - defendants challenged order of trial court mainly on ground of limitation - this court held that suit was barred by limitation - hence, plaintiff filed this letter patent appeal - held, after careful consideration of pleadings of parties, court opined that suit filed by plaintiff was barred by limitation under article 54 of act and provisions of article 54 part i of limitation act would apply to present case - order of single judge confirmed - appeal dismissed - state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the..........mainly for specific performance of contract with a prayer to direct the defendants to execute the sale deed in respect of the suit property in favour of the plaintiff within the date specified by the court and to deliver possession of the same as well as for other ancillary reliefs.3. the suit property is a two-storeyed pucca building having fourteen rooms appeartaining to khata no. 779 and khata no. 780 measuring ac. 0.201 decimals comprising of plot no. 2816 having ac. 0. 157 decimals and plot no. 2819 having an area of ac. 0.044 decimals, in toto ac. 0.201 decimals situated at mouza patpur, chowdhury bazar, p. s. lalbag, sub-registry of cuttack sadar, district -cuttack.the averments of the plaint revealed that the suit property was the residential building of one balakrushna das......
Judgment:

A.S. Naidu, J.

1. The legal heirs and successors of the original plaintiff Nityananda Sahu in Title Suit No. 163 of 1969 instituted in the court of the Subordinate Judge, Cuttack have preferred this Letters Patent Appeal being aggrieved by the judgment and decree dated 8th September, 1988 passed by a learned single Judge of this Court in First Appeal No. 188 of 1974.

2. The suit was mainly for specific performance of contract with a prayer to direct the defendants to execute the sale deed in respect of the suit property in favour of the plaintiff within the date specified by the Court and to deliver possession of the same as well as for other ancillary reliefs.

3. The suit property is a two-storeyed pucca building having fourteen rooms appeartaining to Khata No. 779 and Khata No. 780 measuring Ac. 0.201 decimals comprising of plot No. 2816 having Ac. 0. 157 decimals and plot No. 2819 having an area of Ac. 0.044 decimals, in toto Ac. 0.201 decimals situated at Mouza Patpur, Chowdhury Bazar, P. S. Lalbag, Sub-registry of Cuttack Sadar, District -Cuttack.

The averments of the plaint revealed that the suit property was the residential building of one Balakrushna Das. Balakrushna expired leaving two sons, namely, Rajakrushna and Girish Chandra. Girish Chandra unfortunately died leaving behind defendant Nos. 1 to 5 as his legal heirs and successors. Litigation cropped up with regard to the joint family properties including the disputed property between the legal heirs of Balakrushna and the same was carried upto the Supreme Court in Civil Appeal. While the matter was pending in the Superme Court, the defendants in order to meet the litigation expenses and other legal necessities, agreed to alienate the suit property in favour of the plaintiff for a consideration of Rs. 10,000,00 and received an advance of Rs. 4.000,00 towards consideration and an agreement was executed between the parties. It was alleged that the defendants thereafter also received some amounts towards consideration. Even after disposal of the Civil Appeal, the defendants failed to perform their part of contract though the plaintiff was ready and willing, and adopted dilatory tactics on some pretext or other. After serving legal notice, the plaintiff was constrained to file the Title Suit.

4. All the defendants appeared in Court. Defendant Nos. 1, 3, 4 and 5 filed a joint written statement repudiating the averments made in the plaint and taking a stand that they had never agreed to sell the suit property, but had only borrowed some amount from the plaintiff and had executed certain document under coercion and duress. It was also asserted by the said defendants that the value of the suit property would be more than Rs. 1,00,000.00 and they could not have executed an agreement to sell the suit property for a paltry sum of Rs. 10,000,00. they also took the plea that the suit was grossly barred by time.

Defendant No. 2 filed a separate written statement more Or less admitting the plaint allegations and averred that though he was ready and willing to perform his part of contract, the other defendants did not co-operate with him and he was unable to execute the sale deed in favour of the plaintiff.

5. On the basis of the pleadings, the learned subordinate Judge framed as many as seven issues for deciding the suit. The plaintiff examined six witnesses and exhibited 20 documents. On the other hand, defendant No. 2 examined himself as his witness and on behalf of defendants 1, 3, 4 and 5, four witnesses were examined. The defendants also exhibited eight documents.

6. After elaborate discussion of the evidence, both oral and documentary, the learned trial Judge held that Ext. 2, the money receipt dated 27th Sept.. 1963, was executed by the defendants after fully understanding the covenants thereof and the same was genuine, the handwriting having been proved by the hand-writing expert (P. W. 6). It was also found that the defendants had purchased the stamp papers referred to in Ext. 2 for execution of the sale deed. The learned Subordinate Judge further held that the agreement Ext. 1 had been voluntarily executed by the defendants in favour of the plaintiff agreeing to alienate half of their share in the suit schedule property and substantial amount was received by the defendants vide Exts. 5 and 6 series towards consideration of the property. The court below further held that the deed of agreement (Ext. 1) did not fix any date for execution of the sale deed and, therefore, the second part of Article 54 of the Limitation Act would apply and the period of limitation prescribed would run from the date of refusal for performance of the contract. He further held that the defendants chose not to reply to the notice issued by the plaintiff to them on 9th October; 1968 and the said action would be construed as refusal to execute the sale deed. Therefore, the starting point of limitation should be the date of issuance of notice i.e. 9th October, 1968 and the suit having been filed in March, 1969 was within time. On the basis of such findings, the Court below decreed the suit and directed the defendants to perform their part of the agreement by executing and registering the sale deed within three months from the date of the Decree.

7. The judgment and decree passed by the learned Subordinate Judge was impugned before this court in F. A. No. 188/ 74 by defendants 1, 3, 4 and 5. It is pertinent to mention here that the appellants did not assail the finding of the trial Court with regard to genuineness of the money receipt dated 27th September, 1963 (Ext. 2) and the registered agreement for sale dated 7th December (Ext. 1). The appellants also did not challenge the conclusions arrived at by the subordinate Judge regarding payment of money by the plaintiff to the defendants. The sole ground on which the judgment and decree was assailed before this Court was the conclusion arrived at by the Court below on the question of limitation. It was contended that the suit was grossly barred by time as the second Part of the Article 54 would apply to the present case and not the first part as wrongly held by the Court below. In the alternative the appellants contended that even if it was held that the suit was within time on equitable consideration, the Court should direct the plaintiff to refund the consideration money with damages but should not grant relief of specific performance of the contract/ agreement since the house in question was the only residential house of the defendants and being situated in Cuttack town was worth more than Rs. 1,00,000/-, whereas the consideration money indicated in Ext. 1 was only Rs. 10,000/-.

8. On the basis of materials available, this court did not agree with the contention that the consideration of Rs. 10.000/- for the suit properties is less and negatived the submission of the appellants and held that the price fixed was just, proper and in consonance with the market value prevalent at the relevant time, i.e., in the year 1968. This Court after discussing the evidence, both oral and documentary, and the points of law involved, further observed that the time fixed under Ext. 1 for execution of the sale deed was six months from the date of disposal of the appeal by the Hon'ble Supreme Court. It was further held that the plaintiff was aware that the appeal was disposed of by the Supreme Court on 7th May, 1964 and the judgment of the Supreme Court was received by the defendants on 3-8-1964. Interpreting the conditions stipulated in the agreement (Ext.1), this Court further held that the period of limitation would run from 3rd May, 1964 and/or 3rd August, 1964 as the case, might be. In any event, the suit having been filed on 1st March, 1969 was barred by time. On the basis of such findings, this Court came to the conclusion that the suit was grossly barred by limitation and accordingly set aside the judgment and decree passed by the Court below and dismissed the suit. The said judgment and decree passed by the learned single Judge of this Court are impugned in this Letters Patent Appeal as stated above.

9. The findings of the trial Court on almost all the issues stands confirmed having not been challenged before the first appellate Court. The only issue on which the First Appeal was allowed was issue No. 3, i.e. 'Is the suit barred by limitation?' The trial Court held that the suit was within time; whereas the first appellate Court reversed the said finding and dismissed the suit as barred by limitation. The legal heirs and successors of the plaintiff seek to assail the said finding, the findings on other issues more or less having been in their favour.

10. Before proceeding to examine the materials available with regard to the issue of limitation, it would be prudent to reiterate that the rules of limitation are founded on consideration of public policy and the provisions of the Limitation Act dealing with limitation are required to be interpreted with the approach which advances the cause of public and not otherwise. The intention of the Legislature in enacting the Law of limitation is not to give a right where there is none, but to impose a bar after the specific period authorising a litigant to enforce his existing right within the period of limitation. The object of limitation laws is to compel a litigant to be diligent in seeking remedies in a Court of law and to put bar on stale claims. The law assists the vigilant and not those who sleep over their rights. The specific performance of a contract means its actual execution according to its stipulations and terms. A decree for specific performance is a decree grant by Court directing that the defendant shall actually perform the promise that he has made. A suit for specific performance can be founded only on a contract.

11. Article 54 of the Limitation Act deals with a suit for specific performance of contract. The word 'contract' connotes as an agreement enforceable by law. It has to be a legally binding agreement between two or more persons by which rights are acquired by one or more persons to definite acts or forbearance on the part of the other or others. A contract is thus and agreement resulting in obligations. These obligations operate in personem. The Article reads as follows :--

'54 For specific Three The date fixedperformance years for the perfor-of contract mance of, if nosuch date isfixed, when theplaintiff hasnotice thatperformance isrefused.'

12. In consonance with the aforesaid provision, when the date is fixed for performance of contract in the agreement itself, the time begins to run under the first part of the third column, i.e. from the date fixed in the contract. Law is well settled that if the first part of the third column of Article 54 applies, then the second part will not apply. The expression 'date fixed' under Article 54 means and connotes the date expressly agreed to by the parties in the covenant itself. Of course where the time under the contract is extended either expressly in writing or by consent, then the new date substituted would be the date fixed. Therefore, the date fixed for the performance must be construed to mean not only the date which can be identified, but should also be a date which the parties intended to be the date when the contract should be performed. A reading of the second part of third column of Article 54 of the Limitation Act further reveals that if a contract is silent and/or no date is fixed for performance, then the time for filing a suit would start to run from the date the plaintiff has notice that the performance is refused.

13. This being the position of law, as per article 54 of the Limitation Act, we propose to scrutinise the evidence, both oral and documentary, to decide the question as to whether the suit was filed within the time prescribed by the Limitation Act and /or was barred by limitation.

14. Keeping in mind the maxim 'Witnesses may lie, but not the documents' we propose to examine the exhibits first.

Ext. 2 is the first document which came into existence on 27th of September, 1963. The said exhibit is a money receipt executed by all the defendants inter alia expressing their intention to alienate the suit property in favour of the plaintiff for a consideration of Rs. 10,000.00. It further reveals that in order to enable the defendants to purchase stamp papers for scribing the sale deed and registering the same, the defendants had received a sum of Rs. 681.30 from the plaintiff and in token thereof had granted the receipt.

The second document is Ext. 1 is a registered deed of agreement to sell the suit properly by all the defendants in favour of the plaintiff dated 9th December, 1963. The said covenant inter alia stipulates that the defendants were the owners in possession of the disputed double storeyed building the market value of which was Rs. 10,000,00; that they had agreed to alienate the said property in favour of the plaintiff as they urgently required money for prosecuting the lis pending before the Supreme Court and also for meeting their other family necessities; that they were unable to execute the sale deed due to pendency of lis before the Supreme Court and as some of the papers relating to the suit property were not available; and that they had agreed to execute the sale deed after disposal of the partition suit and collection of the relevant papers and had received Rs. 4,000,00 as advance towards the consideration. The agreement further stipulated as follows :--

Within six months from today after conclusion of the partition suit with regard to the property to be sold, all the papers would be made ready and the sale deed would be executed and registered and the balance consideration amount would be received in presence of the Sub-Registrar. In the event all the documents relating to the property agreed to be sold are not made ready and/ or the sale deed is not executed within six months from the date of the agreement, the plaintiff shall have the right to deposit the balance consideration amount of Rs. 6,000,00 in Court and get the agreement specifically enforced in respect of the property agreed to be sold through Court.

(translated)

15. The deed of agreement also stipulated that if the plaintiff failed to pay the balance consideration amount of Rs. 6,000,00 within the period stipulated and failed to get the sale deed executed from the defendants, the defendants would be free to intimate the plaintiff by notice and refund the advance sum of Rs. 4,000.-00 and thereafter they would be free to dispose of the property according to their own desire.

16. The next document which needs to be referred is the registered notice issued by the plaintiff through his advocate to the defendants on 24th September, 1964, marked Ext. 4. The said notice was issued by registered post and had been duly served. A perusal of Ext. 4 reveals that the plaintiff had brought to the notice of the defendants that according to the registered agreement dated 9th December, 1963, the defendants were to execute the sale deed in respect of the suit property and do all that was necessary for proper conveyance after disposal of the pending partition suit. The plaintiff had learnt that the partition suit had been finally disposed of by the Supreme Court on 7th May, 1964. The plaintiff called upon the defendants to apply to the Khasmahal authorities if they had not already done and after verification of all the amounts received by them towards part consideration amount take steps for execution of sale deed. The notice also indicated that a draft sale deed was ready to be scribed on stamp papers purchased by the defendants and delivered to the plaintiff. It was emphatically stated that the plaintiff was ready for payment of the balance consideration amount that would be found due after adjustment of the amounts already paid to the defendants and that the defendants were delaying the matter on some plea or other till the said date. By the said notice the plaintiff called upon the defendants to perform their part of the contract within seven days from the receipt of the notice and do the needful to execute and register the sale deed, failing which the plaintiff would be compelled to take shelter in Court as stipulated in the agreement.

17. From the tenor of the aforesaid notice it is revealed that the plaintiff was aware of the fact that the partition suit had been finally disposed of by the Supreme Court on 7th May, 1964. This notice had been issued on 24th September, 1964.

18. Ext. 3 is the reply to the plaintiff by the defendants through their advocate on 1st October, 1964. In the said reply several pleas had been taken indicating that the sale deed could not be executed at that stage. The last paragraph of the said letter reads as follows :----

'In these circumstances there is no occasion to demand specific performance of the alleged contract.'

19. Ext. C is a pleader's notice issued on behalf of defendant No. 4 to the advocate for the plaintiff on 8th October, 1964. The said document is very vital and has an important bearing. In the said letter a plea was taken that the amount was borrowed from the plaintiff as loan. The last sentence of the letter reads as follows :--

'Since litigations are pending, it is not possible to execute the deed at present even though the proper valuation is made. Under these circumstances, if your client takes the help of the Court, he will do so at his own risk.'

20. Ext. B is a pleader's notice dated 19th October, 1968 issued on behalf of the plaintiff to the defendants. By the said notice, the defendants were once again called upon to execute the sale deed, failing which it was indicated that the plaintiff would be compelled to take shelter in Court, both Civil and Criminal. It is pertinent to mention here that the defendants did not reply to the said letter. Thereafter the suit was filed on 1st of March, 1969.

21. The oral evidence adduced by both the sides more or less supports their respective pleadings. In para 12 of the written statements the defendants have averred that the Civil Appeal before the Supreme Court had been disposed of on 7th May, 1964. P. W. 5 also admitted such fact in his deposition.

22. Learned counsel for the appellants relying upon the judgment of the Supreme Court in the case of Gomathi Masyagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868, forcefully submitted that the time is the essence of the contract. The agreement clearly revealed that no specific time was stipulated. Admittedly several cases were pending and as such no sale deed could have been executed. The plaintiff issued pleader's notices calling upon the defendants to execute the sale deed, the last of such notice being dated 19th October, 1968, vide Ext. B. The defendants chose not to reply to the same which otherwise amounted to denial or refusal to execute the sale deed. Thereafter the plaintiff filed the suit on 1st March, 1969 which was within three years from the last notice and as such the plaintiff's suit was within time, as prescribed under. Article 54 of the Limitation Act.

23. Learned counsel for the appellants also urged, rather forcefully, that the date on which the partition suit was finally disposed of by the Supreme Court cannot be taken as the last date, inasmuch as the suit being one for partition, the final decree proceeding was still pending and as such any alienation of the property when the dispute was subjudice would be hit by the principles of lis pendens.

24. The nucleus of the submission of the learned counsel for the appellants is that the suit is governed under the second part of the third column of Article 54 of the Limitation Act and the period of three years of limitation would commence from the date the defendants either expressly or impliedly denied or refused to execute the sale deed.

25. Learned counsel reiterated that the defendants never expressly denied or refused to execute the sale deed and such denial was inferred by the plaintiff only from the action of the defendants who failed to give reply to the notice issued by the plaintiff through his advocate in 1964, vide Ext. 3. The suit having been filed within three years of such notice, the same was clearly within the period of limitation and as such the appellate Court committed an error apparent on the face of the record in dismissing the suit as barred by limitation.

26. Mr. B. H. Mohanty, learned counsel for the respondents, at the other hand, strongly repudiated the submission made by the learned counsel for the appellants. According to Mr. Mohanty, the present case is covered under the first part of third column of Article 54 of the Limitation Act, inasmuch as the date for performance had been fixed in the covenant itself. Relying upon Ext. 2, Mr. Mohanty submitted that the defendants agreed to execute the sale deed within six months from the date of execution of the agreement, Ext. 2. The only stipulation was about collection of all the documents from the Supreme Court after disposal of the partition suit which was sub-judice before that Court. Mr. Mohanty further submitted that the lis pending before the Supreme Court was disposed of on 7th May, 1964, i.e. within six months from the date of execution of Ext. 2, dated 27th September, 1963, The suit having been filed on 1st of March, 1969, i.e. much after three years was grossly barred by limitation.

27. While interpreting the covenant, Mr. Mohanty drew attention of this Court to the words ''AJITHU CHHA MAS MADHYARE'. i.e, within six months from today, and stated that in view of such stipulation the submission that no time limit and/ or date of execution had been fixed in the covenant is contrary to the facts of the case and the stipulations made in the agreement. The appellate Court's analysis, reasonings and conclusions were just, proper and in consonance with law and it is a fit case where the A.H.O. should be dismissed.

28. To appreciate the arguments of both sides we once again carefully perused the pleadings and the evidence. Ext. 1, which is the basis of the suit for specific performance, reveals that the defendants unambiguously agreed to alienate the property within six months from 9th December, 1963 after collecting the relevant documents and disposal of the lis pending before the Supreme Court, Even a liberal construction of the recitals of Ext. 1 would lead to a conclusion that the parties thereto had intended that the sale deed would be executed within six months after disposal of the lis pending before the Supreme Court and collection of the documents from the said Court. As has been noticed in the preceding paragraph, in fact the partition case was disposed of by the Supreme Court on 7th of May, 1964, i.e. within six months from the date of the agreement, Ext. 1, i.e. 9th December, 1963. We have, therefore, no hesitation to hold that the present case is squarely covered by the first part of the third column of Article 54 of the Limitation Act since the date appears to have been fixed for performance of the contract in the agreement Ext. 1 itself,

29. In the case of K. Kallaiah v. Ningegowda, AIR 1982 Kant 93, it has been specifically held that once a date is fixed for performance of a contract the suit is necessarily regulated by the former part of Article 54 of the Limitation Act.

30. On the aforesaid analysis, we have no hesitation to hold that the present suit was covered under first part of third column of Article 54 of the Limitation Act and the agreement Ext. 1 dated 9th December, 1963 fixed the time for performance of the contract. As such, the time of three years begun to run on expiry of the time fixed in the agreement for performance. After reading the agreement Ext. 1 as a whole, we find that since the date fixed for execution of the sale deed was six months from the date of execution of Ext. 1, and as the appeal before the Supreme Court was disposed of on 7th of May, 1964, i.e. within six months from the date of execution of agreement Ext. 1, the time for insisting specific performance started to run after expiry of six months from the date of the agreement (9-12-1963). The suit having been filed on 1st March, 1969 was thus grossly barred by limitation. We, therefore, find no error in the finding of the learned single Judge.

31. In the result, the A.H.O. is dismissed. Parties to bear their own costs.

Sujit Barman Roy, C.J.

I agree.


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