Madras High Court
Muruga Udayar (Died) vs Thirumalai Enterpreses on 10 June, 2011
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2011 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH A.S. No.432 of 2000 1. Muruga Udayar (died) 2. Vediappan 3. Dhanapal 4. Sundaram 5. Ramachandran (Appellants 2 to 5 recorded as LRs. of the deceased sole appellant vide order of Court dated 14.08.009 made in Memo dated 6.8.2009) .. Appellants Vs. Thirumalai Enterpreses, partnership firm rep. by its Managing Partners 1.M.Manickam 2.M.S.Ramasamy (Cause title accepted vide order of Court dated 11.2.2006 made in CMP.No.16324 of 2005) .. Respondents Prayer: Appeal filed under Section 96 of the Civil Procedure Code against the Judgment and Decree of the learned Subordinate Judge of Dharmapuri made in O.S.No.48 of 1995 dated 19.10.2000 For Appellant : Mr.S.Prabhakaran for Mrs.Louisal ramesh For Respondents : Mr. K.Doraisamy, Senior Counsel for M/s. Muthumani Doraisamy J U D G M E N T
This appeal is directed against the judgment and decree passed by the lower Court in O.S.No.48 of 1995 dated 19.10.2000.
2. Aggrieved defendants 1 to 5 are the appellants herein. The first appellant/first defendant died during the pendency of this appeal and the appellants 2 to 5 are recorded as legal representatives of the deceased first appellant. The plaintiffs before the lower Court are the respondents herein. However, the present partners were substituted in the place of the former partners of the respondent firm and the cause title was accepted.
3. For convenience sake, the ranks of the parties before the lower Court are maintained in this judgment.
4. The brief facts of the plaintiff's case as stated in the plaint are as follows:
The plaintiff is a Partnership Firm, trading, inter alia, in real estate. The defendants are the members of a Hindu joint family. The suit properties belong to the defendants. On 21.2.1989, the defendants entered into an agreement with the first Managing Partner of the plaintiff firm for the suit properties for a price of Rs.6,75,000/- and after receiving a sum of Rs.50,000 in advance, executed the sale agreement on the same day and in the event of payment of the balance of the sale price in three instalments within a period of ten months from the date of execution of the sale agreement, the defendants should execute the sale deed. In part performance of the contract, the 1st Managing Partner of the plaintiff firm was inducted into possession of the suit properties on the day of the contract itself. Subsequently, the plaintiff firm was constituted on 15.3.1989. The Ist Managing Partner of the plaintiff firm threw the suit properties into the common hotch pot of the plaintiff firm. On the request of the defendants, the 2nd Managing Partner of the plaintiff firm made further advance of a total sum of Rs.2,56,100/- towards the sale price jointly to the 1st, 4th and 5th defendants. The suit properties was originally an agricultural land with rocks and boulders and the plaintiffs levelled it by hired bull dozers and tractors and laid roads and plotted into house sites by spending a sum of Rs.2,00,000/-. On seeing the suit land cultured and was given a face lift, the defendants demande higher price than the agreed sum, for which, the plaintiff refused. The plaintiffs issued legal notice dated 18.11.1989 to perform their part of the contract specifically, but the defendants are not willing to perform their part of the contract. The plaintiffs are always ready and willing to perform their part of the contract. They are also willing to pay the balance of sale price i.e.., Rs.4,18,900/- into court along with the plaint, if required. Hence, the suit for specific performance of the contract by the defendants.
5. The contentions of the 4th defendant, adopted by defendants 1, 3 to 5 are as follows:
The defendants admit that they are the members of a Hindu joint family and that the suit properties belong to them. The defendants state that the allegation of the plaintiff that on 21.2.1989, the defendants entered into an agreement with the first Managing Partner of the plaintiff firm for the sale of the suit properties for a sum of Rs.6,75,000/- and that they received Rs.50,000/- in advance and that they executed the sale agreement, are all false. The defendants state that they are in possession of the suit properties and are cultivating the lands. The possession was not given to anybody either on 21.2.1989 or on any later date. The defendants state that the allegation of the plaintiff that subsequent to the date of contract, the plaintiff firm was constituted on 15.3.21989, are all false. The defendants further state that nobody is authorised or entitled to throw the suit properties into the common hotch pot of the plaintiff firm. The defendants further state that they never received any amount from the 2nd Managing Partner. The defendants never admitted the execution of sale agreement and induction of the plaintiff into possession. The defendants admit that the plaintiff filed a suit in O.S.No.98 of 1990 on the file of the District Munsiff of Harur for perpetual injunction. The plaintiff got an exparte decree. The defendants took steps to set aside the exparte decree in I.A.No.17/94, I.A.No.18/94 and I.A.No.19/94 and the exparte decree was set aside and the said case is ripe for trial. The allegation of the plaintiff that they are ready and willing to perform their part of the contract and that the defendants are not, is meaningless as the plaintiff has no locus standi in the matter. It is true that the minor sons of the defendant file a suit in O.S.No.482/1989 on the file of the District Munsif of Harur and obtained an interim injunction against the defendants from alienating the suit properties but no order of injunction was passed against the plaintiff or its partner. There is no legal bar for the plaintiffs to file a suit for specific performance. The suit is barred by limitation. There is no privity of contract between the plaintiff and the defendants and the plaintiff has no locus standi to file the suit and there is no valid assignment and the suit has to be dismissed in limini. The defendants would submit that the second defendant is not in good terms with them and the second defendant joined hands with the plaintiff in order to cause loss and hardship to the defendants. The defendants further submit that in fact Abdul Ravoop, the alleged 1st Managing Partner of the plaintiff firm who is a document writer intervened to compromise between the defendants. The defendants would submit that in furtherance of the said attempt, he got certain signatures from the defendants in various blank papers and he might have utilised it for forging the documents. The defendants would submit that the plaintiff is not entitled to any relief and hence, the suit has to be dismissed.
6. The lower Court had framed the following issues and had entered into the trial.
"1. Whether the agreement of sale dated 21.2.1989 in favour of the 1st Managing Partner of the plaintiff firm is true?
2. Whether the plaintiff's 1st Managing Partner was induced into possession of the suit properties in furtherance of the sale agreement?
3. Who is in possession of the suit properties?
4. Whether the assignment of agreement in favour of the plaintiff is true, valid and binding?
5. Whether the various payments to the tune of Rs.2,56,100/- are true?
6. Whether the suit is not barred by limitation?
7. Whether there is privity of contract between the plaintiffs and the defendants?
8. To what relief is the plaintiff entitled to?"
7. The lower Court had examined P.Ws.1 to 3 and marked Exs.A1 to A17 on the side of the plaintiff and examined D.W.1 to D.W.4 and marked Exs.B1 to B9 on the side of the defence. After going through the evidence adduced on either side, the lower Court had come to the conclusion of decreeing the suit as prayed for by the plaintiff. While trying the said suit, the lower Court had also clubbed yet another suit in O.S.No.57 of 1997 filed by the plaintiff for permanent injunction and decreed the said suit in favour of the plaintiff. The present appeal has been filed by the defendants only against the judgment and decree passed in O.S.No.48 of 1995.
8. Heard Mr.S.Prabhakaran, learned counsel appearing for Ms. Louisal Ramesh, counsel for the appellants and Mr.K.Doraisamy, learned Senior Counsel appearing for M/s. Muthumani Doraisamy, on behalf the respondents.
9. On perusal of the judgment and decree of the lower Court, the documents and oral evidence produced thereon and the grounds raised in the appeal memo and on hearing the arguments of both sides, this Court is of the view that the following points have to be necessarily decided for the disposal of the appeal.
1) Whether the suit is filed within the period of limitation and the exemption given under Section 15 of the Limitation Act is applicable to the case?
2) Whether the plaintiff is entitled to file a suit on the foot of the agreement entered by its Managing Partner Abdul Rawoop in his personal capacity with the defendants and whether the suit is maintainable?
3)Whether the plaintiff was always ready and willing to perform its part of the contract?
4) Whether the plaintiff is entitled for the equitable relief of specific performance in respect of the suit property?
5) Whether the judgment and decree passed by the lower Court are liable to be set aside and is this appeal allowable?
6) To what relief the appellants are entitled for?
10. Learned counsel for the appellants/defendants would submit in his argument that the appellants/defendants are the owners of the suit property and they have entered into an agreement with one Mr.Abdul Rawoop on 21.2.1989 in respect of the suit properties for a total sale consideration of Rs.6,75,000/- and a sum of Rs.50,000/- was paid to them towards advance and the said sale agreement has been produced as Ex.A1 and the remaining sale price should have been paid within 10 months in three installments i.e., on or before 21.12.1989. He would further submit that on making such payment of the entire sale consideration to the appellants the said deed was agreed to be executed in favour of Abdul Rawoop in his individual capacity. He would also submit in his arguments that the said Abdul Rawoop could not pay the entire sale consideration within 10 months time as stipulated in the agreement. However, the suit has been filed by one Thirumalai Enterprises, a partnership firm constituted with 20 persons as partners in which Abdul Rawoop claiming to be the Managing partner of the said Firm for specific performance of contract of sale against the appellants/ defendants. He would further submit in his argument that the said Thirumalai Enterprises Partnership firm was subsequently, constituted only on 15.03.1989 in a stamp paper purchased on 29.04.1988. He would therefore, submit that the said plaintiff Thirumalai Enterprises have no privity of contract with the defendants and the said partnership firm claim to be a separate legal personality cannot step into the shoes of Abdul Rawoop who was an individual who entered into contract with the defendant. He would further submit in his arguments that the said firm cannot maintain a suit against the defendant on the foot of an agreement entered into by the said Abdul Rawoop in his individual capacity. He would further submit that the reference as to "ntW egh;fs;" in the agreement would not give any assignment or any right to the plaintiff to file a suit for specific performance, which is a personal contract. He would further submit that the agreement Ex.A1 itself would go to show that it was executed only by Abdul Rawoop as the agreement Vendee and he was not shown to be as Managing Partner of the plaintiff firm nor it was the intention of the parties to the agreement. He would further submit that the plaintiff being an alien to the agreement cannot maintain the said suit. He would further submit that the plaintiff firm cannot show its readiness and willingness to enter into the contract of sale even it is construed that the plaintiff can file the suit against the defendants.
11. He would further submit that it is curious to note that the partnership firm Thirumalai Enterprises was constituted only after Ex.A1 agreement and the said partnership firm was also an unregistered one and it cannot even file a suit on behalf of its partners. He would also submit in his argument that the said Abdul Rawoop did not represent the said partnership firm at the time of execution of Ex.A1 agreement with the defendants and the right to enforce the contract of sale for the plaintiff should have been existed at the time of entering into the agreement of sale and the plaintiff firm who was not having such right in the said agreement Ex.A1 is not entitled to sue on the foot of the said agreement of sale as per the principle laid down in the judgment of the Hon'ble Apex Court reported in AIR 2004 SC 348 (Shyam Singh Vs. Daryan). He would also draw the attention of the Court to the judgment of this Court reported in AIR 1998 Madras 169( Gopal Shetty v. Raman) for the said principle. He would again submit in his argument that the suit has to be therefore, dismissed for want of privity of contract in between the parties and the lower Court has failed to apply its judicial mind in these legal aspects.
12. Learned counsel would further submit in his arguments that the suit was also barred by law of limitation as it was filed by the plaintiff after three years beyond the period of limitation. He would further submit in his argument that the date of agreement was 21.2.1989 and the time for payment and performance was fixed as 10 months which was over by 21.12.1989 and therefore, the suit, if any, ought to have been filed on or before 21.12.1992, but the suit was filed by the plaintiff only on 4.1.1995 which is beyond the period of limitation. He would also submit in his argument that the said suit was numbered only on 6.2.1995, after the requisite Court fees has been paid. He would also submit in his argument that the plaintiff did not ask for permission from the lower Court to pay the deficit court fee and such permission was also not granted and therefore, the presentation made on 4.2.1995 was not also a proper presentation and on that score also, the suit is liable to be dismissed. He would further submit in his argument that the exemption as sought for by the plaintiff was to the effect that there was a suit filed by the minor sons of the 4th defendant in O.S.No.482 of 1989 on the file of the District Munsif, Harur and an interim injunction in I.A.No.108 of 1989 was in force which restrained the defendants from alienating the suit properties and the injunction order was vacated only on 29.8.1992 and therefore, the time limit given for filing the suit against the defendants would be extended till 30.06.1995 and therefore, the suit filed on 04.01.1995 and numbered on 06.02.1995 is within time, cannot be sustained. He would further submit that such a plea of exemption to the limitation under Section 15 of the Limitation Act cannot be made available to the plaintiff since it was nor an injunction against the plaintiff, not to file any suit or not to invoke the claim dated 21.2.1989. He would further submit that the injunction sought for against the defendants will not in any way extend the the period of limitation in favour of the plaintiff firm and the same has to be decided in the specific performance suit. He would further submit in his arguments that the suit is clearly barred by law of limitation since it was not filed within 21.12.1992. He would also draw the attention of the Court to a judgment of the Honourable Apex Court reported in AIR 1964 SC 227 (A.S.K.Krishnappa v. S.V.V.Somiah) for the said principle. He would also submit in his arguments that the said injunction order produced in Ex.A12 was not passed against the said Abdul Rawoop or the plaintiff. It was only an injunction order passed against the defendants, not to alienate the said property and it could not be construed that the plaintiffs are prevented from proceeding with the suit. The said order passed by the District Munsif, Harur in Ex.A12 does not prevent the plaintiff from filing any suit and therefore, the exemption claimed under Section 15 of the Limitation Act is not available to the plaintiff.
13. He would further submit in his argument that the plaintiff had filed yet another suit as if he was in possession of the suit property against the defendants in O.S.No.89 of 1990 for permanent injunction on the foot of the agreement on the file of the District Munsif, Harur and the said filing of the suit itself would go to show that the plaintiff was well aware of his right to sue on the agreement for specific performance, if really he is entitled to file such suit. He would also submit that the plaintiff has not obtained any permission to file a suit for specific performance at a later point of time and therefore, the said claim of specific performance would be barred by resjudicata under Order II Rule 2 C.P.C. Apart from that, the evidence of P.W.1 and P.W.2 would not speak to the effect that they were always ready and willing to perform their part of the contract or the plaintiff's part of the contract. In the absence of such proof that the plaintiff was always ready and willing to perform its part of the contract at the earlier point of time, the plaintiff shall not be given any right to claim equitable relief of specific performance in the suit, despite the balance amount has been deposited in the Court. He would submit in his argument that readiness and willingness shall be pleaded and proved as per section 16(c) of the Specific Relief Act, but it is glaringly absent in his case. He would further submit in his argument that the lower Court had not applied the legal points properly but with perversity had passed the judgment and decree in favour of the plaintiff without considering the legal requirements complied with. He would therefore, request the Court that it is a fittest case to interfere and set aside the judgment and to dismiss the suit filed by the plaintiff. He would therefore, request the Court to allow the appeal and thereby to dismiss the suit filed by the plaintiff before the lower Court.
14. Mr.K.Doraisamy, learned Senior Counsel would submit in his argument that the sale agreement was entered into between the parties namely the said Abdul Rawoop on behalf of the plaintiff and the defendants 1 to 5 on payment of Rs.50,000/- as advance on 21.02.1989 in Ex.A1 and possession was immediately handed over to the plaintiff. He would further submit that the plaintiff as the partnership firm had entered into the said agreement with the defendants and it could be evidenced though the receipts given by the defendants in Exs.A4 to A7 and that they have agreed that the agreement was entered into with them was only on behalf of the plaintiff firm. He would further submit in his argument that the minor sons of the 4th defendant had filed a suit in the year 1989 itself in O.S.No.482 of 1989 and they obtained injunction in I.A.No.108 of 1989 from alienating the suit properties and therefore, the plaintiff could not lay a claim against the defendants in enforcing the said agreement. Therefore, he was prevented from enforcing the agreement and the period of such prevention has to be taken for excluding the period of limitation as per Section 15 of Limitation Act. He would further submit in his argument that the said exemption was pleaded in the plaint itself and the plaintiff was having the period of limitation till 30.06.1995 and the plaint was filed within such time and therefore, it was in order. He would further submit that the possession of the plaintiff was disturbed by the defendants and therefore, he had to file a suit for permanent injunction and it was also decreed against the defendants. He would also submit in his argument that the case of the defendants 1 to 3 and 5 on the one hand and the 4th defendant on the other hand are contradictory to each other before the lower Court and it is curious to note that they have come forward jointly has appellants before this Court, questioning the judgment and decree of the lower Court. He would further submit in his argument that the appellants have now given a goby to their written statement and the pleadings before the lower Court. The execution of the receipts in Exs.A4 to A7, after the execution of the sale agreement, would amply prove that the sale agreement, Ex.A1, was executed by Abdul Rawoop on behalf of the plaintiff firm, even otherwise, the inclusion "ntW egh;fs;" in,Ex.A1 would include the plaintiff also along with Abdul Rawoop. The reply notice sent by the defendants would go to show the receipt of payments made over by the plaintiff and therefore, they cannot now come forward along with the 4th defendant to say that the plaintiff has no 'locus standi' to maintain the suit. He would also submit that the case of the 4th defendant that Ex.A1 was a fabricated document that he did not sign the document, would not hold water, since the 4th defendant who pleaded so had not come forward with any acceptable evidence. He would further submit that when the defendants have been injuncted in Ex.A12, the plaintiff could not file a suit and he had kept quiet, and therefore, the exemption would come into play as per the provision of Section 15 of the Limitation Act. The defendants 4 , 5 and 2 as D.W. 1 to 3 do not come forward to say that Ex.A1 agreement was not genuine. D.W.2 and D.W.3 have accepted the execution of the agreement and it is for the 4th defendant to summon the Sub-Registrar to rebut the presumption of the genuineness of the registered document, Ex.A1. He would also submit that the suit property was put to common hotch pot of the plaintiff and was divided into plots and the same was not disputed or questioned in the evidence of P.Ws and therefore, the said stand of the plaintiff has to be accepted. He would further submit that any contract of sale can be assigned to third party who need not be a party to the agreement and in the present case, it has been made over to the plaintiff firm impliedly by execution of receipts by the defendants in favour of the plaintiff firm. He would further submit that the Managing Partner was a party to the document and when the third party seeks to enforce the contract obtained the same from the party who entered into contract should not be objected by the party to the contract. He would also submit that the provision made in the agreement would also entitle the third parties which would include the plaintiff also. He would draw the attention of the Court to the judgment of Allahadad High Court reported in AIR 1967 Allahabad 253 (Umar Noor Mohammad v. DayalSaran Darbari) for the principle that the Vendee can ask the Vendor to execute the sale deed in favour of his nominees. He would also cite various decisions reported in AIR 1926 Madras 699 (Munuswami Nayudu v. Sagalaguna Nayudu) , AIR 1928 PC 174 (Sakalaguna Nayudu v. Chinna Munnuswami Nayudu), AIR 1961 Assam 173 (Bipin Behari Deb v. Masrab Ali), AIR 1947 Madras 258 (P.L.RangiahChettiar v. Parthasarathy Iyenger) for the said proposition of law. He would also submit that the lower Court had exercised its discretion in favour of the plaintiff directing the defendants to execute the sale deed after receiving the balance amount and after fully satisfying with the contradictory pleas of the defendants 1 to 3 and 5 on one part and the 4th defendant on another part,the said decision was reached by the lower Court and its discretion may not be interfered since the decision was not perverse or bias against the defendants. He would also submit that merely because another view or even a better view is possible on the materials and records in the appeal, it may not be justified in interfering with the discretionary relief rendered by the trial Court unless the findings are perverse. He would therefore, request the Court to dismiss the appeal by confirming the judgment and decree passed by the trial Court.
15. I have given anxious thoughts to the arguments advanced on either side.
16. The arguments advanced by either side can be appreciated on point wise.
17. Point Nos. 1 and 2:
17(1) The indisputable facts are that the defendants 1 to 3 and 5 and one Abdul Rawoop entered into an agreement of sale on 21.2.1989 in respect of the suit property agreeing to execute a sale deed in favour of the said Abdul Rawoop by the defendants 1 to 5 within a period of 10 months after receiving the balance of consideration in three installments. The said agreement is produced in Ex.A1. However, the 4th defendant had denied that his signature was fabricated in the said agreement. It is no doubt, the said agreement was a registered sale agreement in favour of Abdul Rawoop executed by the defendants 1 to 5. Even though the 4th defendant had disputed the execution of the agreement in his reply notice Ex.A9, he did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration. In the said circumstances, we could safely come to a conclusion that the agreement Ex.A1 was executed by defendants 1 to 5 in favour of Abdul Rawoop on 21.2.1989 after receiving a sum of Rs.50,000/- as advance.
17(2) The contention of the defendants 1 to 3 and 5 would collectively be that the said agreement was executed in between Abdul Rawoop and the defendants 1 to 5 and therefore, the plaintiff firm which has been constituted subsequent to the agreement cannot file any suit against the defendants for its due purpose. Exs.A4 to A7 are the receipts passed by the defendants in favour of the said Abdul Rawoop for the subsequent payments made towards the sale agreement. The said receipts were issued in the name of P.W.2 for due payments towards the sale consideration fixed in the sale agreement. All the receipts would categorically mention that the money was received from P.W.2 by the defendants. In the said receipts, it has not been mentioned that the said payments were made by P.W.2 on behalf of the plaintiff firm. However, it has been disclosed by the plaintiff that those payments were made by and on behalf of the plaintiff firm. No doubt, it is true that such payments could have been made by P.W.2 on behalf of Abdul Rawoop.
17(3) According to the evidence of P.W.1, there was no claim made by him in favour of the plaintiff's firm regarding Ex.A1 sale agreement. He would categorically admit that in Ex.P1 agreement, he has not shown himself as the Managing Partner of the plaintiff firm. Further more, he would admit that the firm has been established only after the execution of the sale agreement on 15.3.1989 by entering into the partnership agreement produced in Ex.A2. The plaintiff has also produced Ex.A3, the certificate of Registration of Thirumalai Enterprises which is dated 8.2.1990, the number assigned to the plaintiff firm was mentioned as 22/1990. However, the plaintiff did not produce any list of partners for the registered firm - Thirumalai Enterprises and the said Abdul Rawoop (P.W.1) and P.W.2 were shown among the partners. The Partnership Deed Ex.A2 is an unregistered one and there was no evidence produced by the plaintiff to connect Ex.A2 partnership agreement with Ex.A3 registration certificate in favour of the plaintiff firm. Therefore, we cannot find out that the said Abdul Rawoop or the Karlose Joviat Morace-P.W.2 were also partners of the registered firm of Thirumalai Enterprises as produced in Ex.A3. After the filing of the appeal, this Court had substituted two other partners of the plaintiff firm in the place of Abdul Rawoop and Karlose Joviat Morace. Even though that inclusion has been approved by this Court, it has to be seen, whether the partnership firm comprised with the said Abdul Rawoop, is a question which was not answered.
17(4) As rightly admitted by P.W.1-Abdul Rawoop, the agreement was not entered into by him on behalf of plaintiff firm or any assignment has been made in favour of the plaintiff firm. The lower Court had miserably failed to consider the said plea and acted on Exs.A4 to A7 which were admittedly not executed in favour of the plaintiff firm. The mere execution of the agreement in favour of a person or the execution of the receipts in favour of another person who are stated to be the partners of the firm, cannot make an agreement as entered into between the firm and the parties. The plaintiff firm which is stated to have entered into an agreement has not been shown as a party to the sale agreement Ex.A1. The privity of contract between Abdul Rawoop and the defendants 1 to 5 would be binding only upon those parties. Unless, it is shown to Court that the said right of the Vendee has been validly transferred by way of assigning or made over to any third party with the concurrence of defendants 1 to 5, it cannot be said that the right in the agreement has been validly transferred or assigned.
17(5) The judgment cited in AIR 1967 Allahabad 253 (Umar Noor Mohammadv. DayalSaran Darbari) would go to show that a Vendee can seek for a relief of specific performance in favour of his nominees and the relevant paragraph at at paragraph No.8 of the said judgment which would read as follows:
8. Except in some special circumstances a contract to sell a property is not dependent upon any personal qualifications of the individual who agrees to purchase and it is a matter of no consequence to the vendor that the person who is going to be the vendee is not the same person with whom he had entered into a contract for sale. Such a contract is, therefore, enforceable not only by the person to whom the property was agreed to be sold but also by his representatives in interest and assignees, unless of course the contract itself prohibits assignment either expressly or by clear implication. Section 23 of the Specific Relief Act provides as to who may obtain specific performance of a contract and the material part of the section runs as follows:
"Except as otherwise provided by the Chapter, the specific performance of a contract may be obtained by - (a) any party thereto;
(b) the representative in interest, or the principal, of any party thereto: provided that, where the learning, skill, solvency or any personal qualification of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed."
17(6) As per the aforesaid dictum of Allahabad High Court, the Vendee is not prohibited to ask for specific performance in favour of his nominee, a third party or the nominee can file action . As far as this case is concerned, the suit was not filed by Abdul Rawoop seeking for specific performance of contract against the defendants 1 to 5 directing them to execute the sale deed to the plaintiff firm as the nominee or the plaintiff filed the suit against the defendants as his nominee. In the plaint, it has been categorically pleaded that the plaintiff firm itself is the Vendee and the said Abdul Rawood had acted on behalf of the said plaintiff firm and therefore, the specific relief sought for by the plaintiff firm should have been granted in favour of the plaintiff. The construction of Ex.A1 agreement is also not in accordance with the pleadings. It is also admitted by P.W.1 that he entered into the said agreement in his individual capacity. When it is so, how the plaintiff firm can ask for the relief of specific performance. Similar view laid down by the other judgments cited by the learned Senior Counsel is also not applicable to the present case.
17(7) In the judgment of the Honourable Apex Court cited by the learned counsel for the defendants in 1990(3) SCC 1 (Mayawanti vs. Kaushalya Devi) it is held as follows:
"The jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation of the order of specific performance is to enforce that obligation.
The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The acceptance must be absolute, and must correspondent with the terms of the offer. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is , of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded.
17(8) From the said judgment of the Honourable Apex Court, we could understand that the parties to the contract can proceed with the relief of specific performance since the parties to the agreement should have agreed with consensus ad idem regarding the subject of the agreement. The privity of contract will prevail only in between the parties to the agreement. As regards this case is concerned, it is seen that the suit was filed as if the plaintiff firm had entered into contract of sale with the defendants 1 to 5 as one of the parties to the sale agreement Ex.A1. There is no specific plea in the plaint to the effect that the plaintiff firm as a nominee or the third party incurred the rights from the said Abdul Rawoop to demand specific performance from the defendants 1 to 5 and on that basis, the suit was filed. In the absence of such plea, the judgment reported in AIR 1967 Allahabad 253 (Umar Noor Mohammadv. DayalSaran Darbari) is not applicable to the present case.
17(9) As far as the period of limitation available to the plaintiff to file a suit on Ex.A1 sale agreement is concerned, it is an admitted fact that the time limit fixed in the sale agreement Ex.A1 was ten months and it was over by 21.12.1989. The period of claim of specific performance on the said agreement would be three years from the said date, that was, on 21.12.1992, even the said agreement was not validly repudiated or become invalid in between the parties. Admittedly, the plaintiff presented the plaint on 4.1.1995 which is beyond the period of three years. For that, the plaintiff has pleaded exemption in paragraph IX of the plaint, which reads as follows.
"IX. The contract was entered into on 21.2.1989. The period agreed for executing the sale deed is ten months from the date of contract. So, this suit ought to have been filed on or before 21.12.1992. But the minor sons of the 4th defendant filed a suit in O.S.No.482/89, on the file of the District Munsif, Harur, in which an interim injunction in I.A.No.1081/89 was in force which restrained the defendants from alienating the suit properties. The injunction order was vacated on 29.8.1992, when the said suit was dismissed for default. The time therefore, began to run from 30.6.1992. The suit is to be filed on or before 30.6.1995. Thus, this suit is in time. After the vacation of the injunction the plaintiffs demanded the defendants for specific performance, that they refused."
Whether such exemption pleaded by the plaintiff is acceptable? The lower Court had come to a conclusion that the said period as sought for exemption when the injunction was in force, can be excluded and therefore, it was found to be in time. It is an admitted fact that the minor sons of the 4th defendant filed a suit in O.S.No.482 of 1989 on the file of the District Munsif, Harur and an application for interim injunction in I.A.No.108 of 1989 was filed. The ad-interim injunction was granted originally and it was made absolute subsequently and the temporary injunction restraining the defendants from alienating the property was vacated on 29.8.1992, when the suit was dismissed for default. The plaintiff seeks for the period in between the date of filing of the suit and the injunction was vacated has to be excluded under section 15 of the Limitation Act and thus the plaintiff claimed that the suit filed on 4.1.1995 is much prior to the last date of limitation namely 30.6.1995 and therefore, the suit was in time.
17(10) For better understanding Section 15(1) of the Limitation Act has to be extracted. Section 15(1) of the Limitation Act reads as follows:
"15. Exclusion of time in certain other cases (1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded."
17(11) According to the said Section, an injunction or order in which the institution or execution of which has been stayed, the time of continuance of the injunction order from the date it was made and till the date it was withdrawn, shall be excluded. For the purpose of applying the principle in Section 15 of the Limitation Act, we have to understand the principle laid down by the Honourable Apex Court reported in AIR 1959 SC 198 (Siraj-ul-Haq Khan and others v. The Sunni Central Board of Waqf, U.P. and others ). The relevant passage would run thus:
" (19) The next question which calls for our decision is whether the appellants' suit is saved by virtue of the provisions of S. 15 of the Limitation Act. That is the only provision on which reliance was placed before us by Mr.Dar on behalf of the appellants. Section 15 provides for " the exclusion of time during which processing are suspended" and it lays down that "in computing the period of limitation prescribed for any suit or application for execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order , the day on which it was issued or made and the day on which it was withdrawn, shall be excluded". It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under S. 15, the party instituting the suit would be such institution be in contempt of court. If an express order or injunction is produced by a party that clearly meets the requirements of S.15. Whether the requirements of S.15. Whether the requirements of S.15 would be satisfied by the production of an order or injunction which by necessary implication stays the institution of the suit is open to argument. We are, however, prepared to assume in the present case that S.15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. But, in our opinion, there would be no justification for extending the application of S.15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant, and in applying them effect must be given to the strict grammatical meaning of the words used by them."
(Emphasis applied) The said principle would go to show that only if any injunction order staying the institution of the suit, it would attract provision 15 of the Limitation Act. For that purpose, we have to peruse the order passed by the District Munsif, Harur in I.A.No.108 of 1989 produced in Ex.A12. The said order produced in Ex.A12 has been filed by the minor sons of the 4th defendant against the defendants 1 to 5 in the suit for partition and separate possession, wherein injunction was sought for from alienating the suit property and an injunction order was granted on 21.11.1989 and it was made absolute on 30.01.1990. The said injunction was vacated, when the suit in O.S.No.482 of 1989 filed by the minor sons of the 4th defendant for partition and separate possession was dismissed for default on 29.8.1992. On a careful perusal of the said order passed in Ex.A.12, it is seen that it was a temporary injunction against the defendants 1 to 5 not to alienate the property, till the disposal of the suit in O.S.No.482 of 1989. Admittedly, it is not against the plaintiff or the agreement Vendor Abdul Rawoop preventing them from instituting any suit. As per the principle laid down by the Honourable Apex Court, the said Abdul Rawoop or the plaintiff firm ought to have been prevented from filing any suit for specific performance. If the defendants 1 to 5 executed the sale deed in favour of the plaintiff or the said Abdul Rawoop in contravention to the order passed in Ex.A12, they would be liable for contempt of Court but if the said Abdul Rawoop-agreement Vendee or the plaintiff firm chose to file a suit for specific performance against defendants 1 to 5 during the prevalence of the injunction order in Ex.A12, they would not be hauled up for contempt of court. Therefore, it is quite clear that it is not an order preventing the plaintiff firm or Abdul Rawoop, the agreement Vendee from filing any suit for specific performance.
17(12) The judgment of the Karnataka High Court reported in AIR 1988 Karnataka 83 (Mahaboob Pasha v. Syed Zaheeruddin and others) would be the answer to the present case and the relevant passage would run thus:
"14. In this regard, it is relevant to bear in mind that in construing the provisions of the Limitation Act, equitable considerations are immaterial and irrelevant. While applying the rules of limitation, effect must be given to the strict grammatical meaning of the words used therein. See Nagendranath v. Suresh Chandra,AIR 1932PC 165. As it is already pointed out that the order of injunction obtained by Abdul Sattar on 28-10-1974 in O.S.No.2095/74 was to restrain the appellant from alienating the suit property to the Ist respondent or to any other party. It did not restrain the respondents from filing the suit for specific performance nor the respondents were in any way prevented by reason of such an order of temporary injunction from filing the suit. S.15(1) of the act reads thus:
"15.(1):In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded."
The facts as found by the trial Court, in our view, did not enable respondents 1 to 4 to exclude the period from 28-10-1974 to 27.8.1980 because they were not prevented from filing the suit. What all S.15(1) provides for is that the time intervening between the date on which the institution of the suit was stayed and the date on which the stay order was vacated shall be excluded in computing the period of limitation. In this case, as already pointed out, there was no order of injunction in the suit filed by Abdul Sattar restraining the appellant for specific performance of the agreement in question. What was obtained by him was an interim order of injunction restraining the appellant from alienating the property in question in favour of respondent 1 or any other party and, therefore, S.15(1) of the Limitation act did not permit the trial Court to exclude the time from 28-10-74 to 27-8-1980. By excluding that period, it held that the suit filed on 3-12-1980 was within time.
15-16. This point had come upto for consideration before the Privy Council in Narayan Jivangouda v. Puttabai, AIR 1945 PC 5 . In that case, an order of injunction was operating against the defendant in the suit restraining him from interfering with the plaintiff's possession. It was held by the Privy Council that the defendant was not restrained from bringing a suit for possession so as to exclude the period during which injunction was issued by trail Court and dissolve by Privy Council. In that suit for declaration and possession, a temporary injunction which was subsequently confirmed by the decree restrained the defendant from interfering with plaintiff's possession and the defendant was also prevented from causing obstruction in any way to the plaintiff in removing the crops grown by him or in accepting or recovering the amount of rent of the said lands from the tenants. It was held by the privy Council that there was no prohibition, either express or even implied, in the injunction or the decree which restrained the defendant from instituting a suit for possession; that the institution of a suit could not be said to be futile, if it would thereby prevent the running of limitation only because the title of the parties was involved in the suit; that the subsequent suit by defendants after 12 years from the date of dispossession was barred by limitation and that S.15 did not entitle the defendant to exclude the time between the plaintiffs suit and decision of the Privy Council. This decision was followed by the Supreme Court in Siraj Ul-Haq Khan v. Sunni Central Board of Waqf U.P., AIR 1959 SC 198 (See para 20 of the Judgment of the Supreme Court). The Supreme Court while considering the effect of s.15(1) of the Limitation Act referred to the decision of the Privy Council adverted to above and observed as follows:
"For excluding the time under S.15, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under S.15, the party instituting, the suit would by such institution be in contempt of Court. If an express order or injunction is produced by a party that clearly meets the requirements of S.15. Even assuming that s.15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation, there would be no justification for extending the application of S.15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It it true that rules of limitation are to be some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them."
The said judgment of the Division Bench of Karnataka High Court was based upon the judgments of the Honourable Apex Court reported in AIR 1975 SC 67 (Director of Inspection of Income tax (Investigation) New Delhi v. Pooran Mall and Sons) . Yet another judgment of Karnataka High Court reported in AIR 2004 KARNATAKA 211 (A.M.Isaq Kothiwale v. I.K.Miraz) had followed the decisions rendered by the Honourable Apex Court reported in AIR 1959 SC 198 (Siraj-Ul-Haq v. S.C.Board of Waqf) and a similar decision has been taken in the judgment of the Division Bench of Karnataka High Court reported in 1988 KARNATAKA 83 (Mahaboob Pasha v. Syed Zaheeruddin and others). Therefore, we could understand that the injunction order passed in Ex.A12 is not prohibiting the plaintiff firm or Abdul Rawoop-agreement Vendee from filing the suit for specific performance. Therefore, the said period during which the injunction order against the defendants 1 to 5 was in force cannot be excluded and the rule of exemption evisaged in Section 15 of Limitation Act will not in any way come to the rescue of the plaintiff so as to exempt him from filing the suit after a lapse of three years period from the date fixed in the sale agreement. Therefore, the finding reached by the lower Court that the suit was filed in time, cannot be sustained. The lower Court had not applied its mind as to the applicability of Section 15(1) of the Limitation Act to the present case but had come to a conclusion in a slipshod manner to sustain the suit. Therefore, the finding of the lower Court is contrary to law and it is perverse.
17(13). It has been categorically submitted by the learned counsel for the defendants that the plaintiff firm had filed a suit for injunction even prior to the filing of the suit for specific performance in O.S.No.89 of 1990 and in the said suit, no permission application was filed to file a suit for specific performance on the foot of the sale agreement Ex.A1 and therefore, the claim of specific performance in this suit is bared by resjudicata. The said argument leveled by the learned counsel for the defendants was not supported by pleadings. However, since the matter is question of law, it can be decided with available evidence. In the said suit, which has been subsequently renumbered as O.S.No.57 of 1997, the plaintiff had made a reservation in the plaint that he would reserve his right to file a suit for specific performance in a separate suit and the said reservation was not questioned in the written statement filed by the defendants in the said suit. Moreover, nothing was elicited from the evidence of P.W.1 regarding non obtaining of the permission to sue the said suit. In the said circumstances, this Court is not agreeing with the arguments of the learned counsel for the defendants as to the point of resjudicata under Order II Rule 2 C.P.C.
17(14). For the foregoing discussions and reasons reached by this Court, the suit filed by the plaintiff against the defendants 1 to 5 is found to be not maintainable eventhough it is not barred under Order 2 Rule 2 C.P.C. and the suit claim made by the plaintiff for specific performance was not found to be within time. Accordingly, these points are decided against the plaintiffs/respondents but in favour of the defendants 1 to 5/appellants.
18. Point Nos. 3 and 4:
18(1). The claim of the plaintiffs for specific performance was being questioned by the defendants 1 to 5 and in the previous points, it has been decided that the suit itself is barred by limitation and the suit cannot also be sustained by the plaintiff. But for those decision, if for any reason, the suit is considered to be in order, whether the plaintiff is entitled for specific performance as sought for, is also a question to be decided. No doubt, the agreement was entered into by one Abdul Rawoop with the defendants 1 to 5 and a sum of Rs.50,000/- was paid in advance to the defendants 1 to 5 and subsequently, various sums have been paid by P.W.2 to the defendants 1 to 5 after passing of Exs.A4 to A7 receipts by the defendants 1 to 5. Even though the agreement and receipts were questioned by the 4th defendant, it has been found that the agreement and receipts were executed by defendants 1 to 5 but, it has been decided that the suit filed by the plaintiff firm is not maintainable and the suit claim was not made within time. However,the plaintiff firm pleaded in the plaint that the plaintiffs are ready and willing as they always were, to perform their part of the contract specifically. However, P.W.1 has not spoken in his evidence that he was always ready and willing to perform his part of the contract, despite the amount was deposited by him into Court. According to Section 16(c) of the Specific Relief Act, the readiness and willingness of performing the contract should have been pleaded and proved. There are catena of judgment of Honourable Apex Court and this Court to the effect that the plaintiff must show his readiness and willingness from the date of agreement till the date of his deposing before the Court and even thereafter. But the plaintiff even though pleaded in the plaint neither P.W.1 nor P.W.2 have spoken to the effect that they were ready and willing throughout. It is quite clear that the plaintiff did not file the suit for specific performance within time and sought for exemption under section 15 of the Limitation Act by stating the reason that there was an injunction against the defendants from alienating the properties. The said point was negatived and even during the said period, the plaintiffs werenot ready to perform their part of the contract. The evidcence of P.W.1 and P.W.2 did not speak about readiness and willingness even during the said period. The award of specific relief is an equitable relief to which the Court has to exercise its discretion. The plaintiff who had come to Court long after the period of limitation and also not with correct facts, had approached the court without correct particulars for equitable relief. Having much hurdles to overcome in a suit for specific performance, the relief of specific performance cannot be granted to the plaintiff even if it is considered that their claim was right and in time. Therefore, these two points are also ended against the plaintiffs/respondents.
19.Point Nos.5 and 6:
In the foregoing paragraphs, it has been found that the claim of the plaintiffs was beyond the period of limitation and exemption under section 15(1) of the Limitation Act would not come to the relief of the plaintiffs. Apart from that, the suit filed by the plaintiff was found to be not sustainable and the specific performance relief cannot be granted in favour of the plaintiff even otherwise, the suit is maintainable and is in time. In the said circumstances, the lower Court had decreed the suit for specific performance without applying its mind regarding the provisions of Limitation Act and also the principle laid down by the Honourable Apex Court in respect of the privity of contract. Therefore, it has become necessary for this Court to interfere with the judgment and decree passed by the Lower Court as they are perverse and without application of law. The submission of the learned senior counsel for the respondents/plaintiffs that the mere another view may not be sufficient for interfering with the judgment of the lower Court is true but the judgment of the lower Court is found to be against law and therefore, it has to be set aside and interfered with. Accordingly, the judgment and decree passed by the lower Court in O.S.No.48 of 1995 dated 19.10.2000 are set aside and the appeal is allowed with costs. Consequently, the suit filed by the plaintiffs against the defendants for specific performance is dismissed with costs.
20. In the result, the appeal is allowed by setting aside the judgment and decree passed by the lower Court with costs throughout.
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