Kerala High Court
Jamaludheen vs Shajahan Rawther on 3 July, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY,THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936
RSA.No. 1139 of 2012
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AGAINST THE JUDGMENT IN AS 141/2009 OF DISTRICT COURT,
PATHANAMTHITTA, DATED 03-07-2012
AGAINST THE JUDGMENT IN OS 189/2006 of MUNSIFF COURT,
RANNI, DATED 28-08-2009
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APPELLANT(S)/APPELLANT/FIRST DEFENDANT:
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JAMALUDHEEN, AGED 68 YEARS,
S/O.VAVANATHAR, KUMBANKUZHIYIL HOUSE, KATTOOR MURI,
CHERUKOLE VILLAGE, RANNY.
BY ADVS.SRI.M.NARENDRA KUMAR
SMT.LAYA SIMON
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:
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1. SHAJAHAN RAWTHER, AGED ABOUT 43 YEARS,
S/O.MUHAMMED MUSTAFA UMMER,
MANNATHI PARAMIL PARAKADAVU (BISMI MANZIL), KATTOOR MURI
CHERUKOLE VILLAGE, RANNY,PIN-689672.
2. ABHILA BEEVI, AGED 37 YEARS,
W/O.SHAJAHAN RAWTHER, MANNATHI PARAMBIL, PARAKADAVU
(BISMI MANZIL), KATTOOR MURI, CHERUKOLE VILLAGE,
RANNY-689672.
BY ADVS. SRI.V.PHILIP MATHEW
SRI.N.K.THANKACHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 08-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
P.BHAVADASAN, J.
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Regular Second Appeal No.1139 OF 2012
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Dated this the 8th day of August, 2014.
J U D G M E N T
The controversy in this appeal is very narrow and the question raised is whether the suit for specific performance filed by the plaintiffs is barred by limitation. It must be born in mind that initially the suit was one for declaration of title and possession and it was later on amended as to one for specific performance.
2. Fortunately, most of the facts are not in dispute. Even though three items of properties were shown in the plaint, we are concerned only with item No.3 which is having an extent of 1= cents of property. That item of property was the subject matter of Ext.A3 dated 03.07.2001 by which the defendants agreed to sell that property to the plaintiffs for a total consideration of Rs.12,000/-. It is not in dispute that the entire sale consideration was paid at the time of agreement for sale and the R.S.A No.1139/2012 2 plaintiffs in the suit who are the respondents herein were put in possession of the property. As per the agreement, the property was outstanding on mortgage with a Co-operative Bank and the agreement was to the effect that the loan would be discharged and the sale deed would be executed. There was a further clause in the agreement that the vendor has to discharge the loan within one year of the date of the agreement. There is no dispute regarding the fact that the loan has not been discharged so far nor has the vendor issued notice to the vendee calling upon him to receive the sale deed to be executed by the vendor. One may again remember that the entire sale consideration has already been paid. Therefore, all that is to be done by the vendee had already been done and what remains to be done was by the vendor i.e. to discharge liability to the Bank and execute sale deed.
3. Both the courts below found that in the light of the clause contained in Ext.A3 agreement to the effect that sale deed would be executed as soon as the liability to the Bank is R.S.A No.1139/2012 3 discharged and since the loan remained undischarged, time had not arrived at for execution of the sale deed. In other words, the courts below were of the view that there was no time fixed under the documents whereby the 1st part of Article 54 of the Limitation Act was attracted. The courts below were of the view that in the case on hand the latter part of Article 54 of the Act would be applicable. The suit was brought on 13.01.2006. Finding that the latter part of Article 54 of the Limitation Act applies to the case, the courts below came to the conclusion that the suit is not barred by limitation and of course, it was found that the plaintiffs had already performed their part of contract and what remained to be done was the execution of sale deed by the defendants in the suit after discharge of loan. Overruling the contention based on limitation, suit was decreed and that was confirmed in appeal.
4. At the time of admission of the R.S.A, the following substantial questions of law were formulated.
(i) Whether the relief of specific performance of the agreement dated 03.07.2001 is barred by limitation?
R.S.A No.1139/2012 4
(ii) Whether Ext.A3 agreement contains the date fixed for performance of the contract as provided in the first part of Article 54 of the Limitation Act?
(iii) Whether the courts below exercised the discretionary relief of specific performance as enjoined by Section 20 of the Specific Relief Act?
(iv) Whether the courts below are justified in granting a decree for permanent prohibitory injunction in respect of plaint schedule item No.3 in the absence of any pleadings of the right under Section 53A of the Transfer of Property Act?
5. Sri.M.Narendra Kumar, learned counsel appearing for the appellant contended that both the courts below have erred both on facts and in law in coming to the conclusion that there is no time fixed for execution of the sale deed. According to the learned counsel, even though apparently no date appears to have been fixed under the document, it could be ascertained construing the relevant clause in Ext.A3 that there is sufficient material to attract the first part of Article 54 of the Limitation Act R.S.A No.1139/2012 5 and the courts below were not justified in holding that no time limit had been fixed and that there were no latches on the part of the plaintiffs in not laying the suit within three years from the expiry of one year from the date of the agreement by the time by which the vendor agreed to discharge the loan. Learned counsel however pointed out that in view of Section 53A of the Transfer of Property Act, the vendee may be able to defend his possession. But, in order to bring the suit for specific performance, that would be of no help and he has to bring the suit within the period of limitation. It was also contended by the learned counsel that it is not as if that the time is not ascertainable. Even though the first part of the agreement stated that the vendor has to execute the document of sale for discharge of loan to the Bank, the latter part of the agreement clarifies that the loan was to be discharged within one year. Learned counsel went on to point out that when there was a failure on the part of the vendor to discharge the loan within one year from the date of the agreement, cause of action for the suit R.S.A No.1139/2012 6 had arisen for the vendee and he should have brought the suit within three years thereafter. Relying on Section 13 of the Specific Relief Act, it was contended that even assuming that the property was encumbered, the vendee could take recourse to Section 13(1) of the Act and get the encumbrance discharged and the sale deed executed. Having not done so, it cannot be said that the suit is not barred by limitation.
6. For the above proposition, learned counsel for the appellant relied on the decisions in Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by Lrs. and others ((2002) 3 Supreme Court Cases
676), Mohan Lal (deceased) through his Lrs. Kachru and others vs. Mira Abdul Gaffar and another (AIR 1996 Supreme Court 910), Ramzan vs. Hussaini ((1990) 1 Supreme Court Cases 104), Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and others ((2009) 5 Supreme Court Cases 462) and in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (registered) vs. Ramesh R.S.A No.1139/2012 7 Chander and others ((2010) 14 Supreme Court Cases 596).
7. It is contended by the learned counsel for the appellant that the courts below have not adverted to the above aspects at all and they were merely guided by the fact that since the loan has not been discharged, there is indefinite time available for the vendee to have the sale deed executed. This has no sanction of law. Accordingly it is contended that the decree and judgment cannot stand.
8. Learned counsel appearing for the respondents, on the other hand, contended that both the courts below have adverted to the facts in detail and have come to the conclusion that even as on date the loan remains undischarged and if that be so, time fixed for execution of sale deed could not be ascertained. Going by the terms of the agreement, the time fixed for execution of such deed was on discharge of the loan by the vendor which has not occurred. Had that been done by the vendor and that fact intimated to the vendee, time would start to run from that point of time and the suit had to bring within three years therefrom. R.S.A No.1139/2012 8 According to the learned counsel, the latter clause which creates an obligation on the part of the vendor to discharge loan within one year has nothing to do with the time for execution of sale deed and that is only a clause enabling the vendor to have a period for discharge of the loan and cannot be treated as period fixed for execution of the sale deed. So that it could not be said that after the expiry of one year during which the vendor had to discharge loan, on his failure to do so, the time for specific performance had commenced to run. According to the learned counsel, both the courts below have adverted to the relevant facts in the case and have come to a right conclusion. Accordingly, it is contended that there are no grounds to interfere with the judgment and decree of the courts below.
9. The short question that therefore arises for consideration is whether it is the first part of Article 54 of the Limitation Act or the latter part of Article 54 of the Act that applies to the case. Article 54 of the Limitation Act reads as follows: R.S.A No.1139/2012 9
Description of suit Period of limitation Time from which period begins to run
54. For Specific Three years The date fixed for the performance of a performance, or, if no contract such date is fixed, when the plaintiff has noticed that performance is refused.
10. In order to understand the application of Article 54 of the Limitation Act to the facts of the case, it will be necessary to refer to the relevant clause in Ext.A3 which reads as follows:
"
...."
The latter clause in Ext.A3 reads thus:
" (1)
".
11. It cannot be said that there is any conflict or inconsistency between the clauses. The first clause extracted above envisages an undertaking to execute sale deed soon after the loan is discharged and the latter clause only creates an obligation on the part of the vendor to discharge the loan within one year. Obviously going by the terms of the agreement, it R.S.A No.1139/2012 10 could not be said that any time is as such fixed for the execution of the sale deed. The courts below have taken the view that since no time is fixed for execution of the sale deed, the former clause of Article 54 will not apply and only the latter part will apply and therefore held that the suit is not barred by limitation.
12. One needs to refer to the decisions cited by the learned counsel for the appellant. In Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by Lrs. and others ((2002) 3 Supreme Court Cases 676), the question of applicability of Section 53A of the Transfer of Property Act was considered and it was held in the decision that the vendee is entitled to defend his possession on the basis of Section 53A of the Transfer of Property Act in such a suit.
13. It may be remembered that Section 53A deals with part performance of contract. It envisages a situation where in pursuance to an agreement for sale, the vendee is put in possession of the property and also envisages a situation where it is proved by evidence that the vendee was always ready and R.S.A No.1139/2012 11 wlling to perform his part of contract throughout and in such cases, the only remedy available to the vendor is to receive the balance sale consideration. In such a situation, if it is proved that the vendee was ready and willing to perform his part of contract, the discretion under Section 20 has only very limited application.
14. The decision in Mohan Lal (deceased) through his Lrs. Kachru and others vs. Mira Abdul Gaffar and another (AIR 1996 Supreme Court 910) reveals that suit for specific performance was brought by the vendee based on a contract for sale. That suit was dismissed. Thereafter the vendor sought recovery of possession on the strength of title. The vendee took refuge under Section 53A of the Transfer of Property Act and tried to deferred his possession. It is significant to notice that apart from the plea under Section 53A, he also pleaded adverse possession and limitation. The Apex Court, after finding that the plea of adverse possession and limitation cannot co-exist with Section 53A went on to consider the question whether the vendee R.S.A No.1139/2012 12 can take refuge under Section 53A of the Transfer of Property Act. It was held as follows:
"5. The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of contract. Agreement does not create title on interest in the property. Since the agreement had met with dismissal of the suit his R.S.A No.1139/2012 13 willingness to perform his part of the contract does not arise".
15. The Apex Court also observed that even while defending possession under Section 53A of the Transfer of Property Act, it is incumbent on the part of the vendee to show that he was ready and willing to perform his part of contract and prove the said fact to the satisfaction of the court. The principle laid down in the above decision can have no application to the facts of the case. Admittedly, no suit for any purpose had been brought by the vendee on an earlier occasion nor a suit filed by him for specific performance has been dismissed.
16. Reliance was placed on the decision in J.P. Builders and another vs. A. Ramadas Rao and another ((2011) 1 Supreme Court Cases 429) for the proposition that time is ascertainable. Attention was drawn to paragraph 50 of the judgment which reads as follows:
"50. On the other hand, as per Clauses 3, 4 and 6 in Ext.A-3, the vendor and Defendants 1 and 2 have undertaken to discharge their loans and hand over title deeds. The relevant clauses, namely, R.S.A No.1139/2012 14 Clauses 3, 4 and 6 of Ext.A-3 are as follows:
"3. The balance of sale consideration shall be paid by the PURCHASER TO THE VENDORS on or before the registration of the deed of sale.
4. The vendors undertake to discharge the loans and hand over the ORIGINAL TITLE DEEDS relating to schedule mentioned properties to the PURCHASER, within three months from this date for scrutiny of title. HOWEVER, the purchaser has to pay further advance, if any, required by the VENDORS, to release the documents from the Bank.
6. The sale shall be completed within six months from the date of production of ORIGINAL DOCUMENTS by the VENDORS to the purchaser.....""
17. The contention raised on the basis of the above decision is that the said decision refers to a case where the latter clause found similar as in Ext.A3 was construed by the Apex Court and it was held that the date is ascertainable.
18. On going through the decision, it is found that the facts of the case are entirely different and it was held that contract is a contingent contract and on that basis it was held that time could be ascertainable. A reading of the decision also shows that there R.S.A No.1139/2012 15 was an obligation on the part of the vendee to make available the balance sale consideration to enable the vendor to discharge loan outstanding with the Bank. The facts of the case reveal that in spite of repeated demands, the vendee did not make available the balance sale consideration which would enable the vendor to discharge the loan. The facts of that case are not similar to the facts of the case on hand.
19. In the decision in Ramzan vs. Hussaini ((1990) 1 Supreme Court Cases 104), the question considered was whether it is necessary on the very face of the document itself that the dates would be ascertainable. The facts of the case show that an agreement for sale was entered into between the parties and the vendee had an obligation to discharge the mortgage and and the vendor had an obligation to execute sale deed. The Apex Court held that even assuming that the first part of Article 54 of the Limitation Act did not apply, if the date was ascertainable in so much as the date on which the mortgage is discharged by the vendee, time begins to run from then onwards. Accordingly, it R.S.A No.1139/2012 16 was held as follows:
"6. The relevant provisions in the alleged agreement of sale as quoted in the judgment, of the trial Court reads as follows :-
"This house is under mortgage with Jethmal Bastimal for Rs. 1000/-. When you will get this house, the description of which is given below, redeemed from M/s. Jethmal Bastimal and take the papers of the registry in your possession, on that day I will have the sale deed of the said house, written executed and registered in your favour."
(emphasis supplied) The question is whether a date was 'fixed' for the performance of the agreement and in our view the answer is in the affirmative. It is true that a particular date from the calander was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, immediately after the redemption, filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within R.S.A No.1139/2012 17 the meaning of S. 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar v. B. M. Shamanna Gounda, AIR 1950 Mad 820 expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. The Brighton Club and Norfolk Hotel Company (1875) 10 QB 371, relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at Common Law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day. which when the goods were delivered would be ascertained, R.S.A No.1139/2012 18 and then the money would be payable at a certain time; but rejected the plaintiff's demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 113 is not that the actual day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of R.S.A No.1139/2012 19 Article 54 (third column) and not the second part".
20. On going through the facts of the above case, one fails to understand whether the principles laid down in the said decision can have any application to the present case. The facts of the case cited clearly show that it was for the plaintiff who sought specific performance to get the property redeemed and therefore it was something to be done on his part which determine the date for performance of the agreement. In the case on hand, the vendee had performed all that he could do about the contract and the date of performance did not depend on anything to be done by him. Moreover, except for stating in the case on hand that the vendor had a period of one year to discharge the loan, it did specify that sale deed is to be executed soon after one year of Ext.A3 agreement. But the earlier portion referred to make the time for performance indefinite.
21. The decision in Balwantsingh vs. Rajaram (AIR 1975 Rajasthan 73) was concerned with the question that whether the execution of sale deed is dependant upon any event, what would R.S.A No.1139/2012 20 be the effect of period of limitation and the right of the vendee for specific performance. There facts of the case show that it was a case where the defendant had an obligation to discharge dues and get Sanad from Government. The court held in that case that it could be treated as a contingent contract. The court took the aid of Section 13 of the Specific Relief Act to reach such a conclusion. The applicability of Section 13(a) of the Specific Relief Act will be discussed little later.
22. Coming to the decision in Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and others ((2009) 5 Supreme Court Cases 462), the question as to what is meant by the expression 'date fixed for the performance' was considered. It was held as follows:
"11. The inevitable conclusion is that the expression "date fixed for the performance" is a crystallised notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed R.S.A No.1139/2012 21 for doing a particular act. Even in the second part the stress is on "when the plaintiff has noticed that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances".
23. The argument seems to be that as date is not ascertainable, the intention of the parties will have to be considered. The Apex Court held that even going by the two clauses in Article 54 of the Limitation Act, it could not be said that the date is not ascertainable. According to the Apex Court, as far as the former part is concerned, it is the date fixed in the document that governs the first clause. As far as the latter clause is concerned, it could not be said that the date is not fixed since the latter clause mentions that the date begins from the date of refusal of execution of sale deed by the vendor. It was therefore held by the Apex Court that it could not in law be said that the date cannot be fixed going by Article 54 of the Limitation R.S.A No.1139/2012 22 Act. Even if no fixed date is mentioned in the agreement for sale, the date from which the period begins to run as far as the latter clause is concerned starts from the date of refusal to execute sale deed. Viewed in that angle, the Apex Court was of the view that it could not be said that the date has to be ascertained from the intention and the evidence adduced in the case. Either the date commenced from the date fixed for execution of sale deed in the agreement for sale or the date has to be ascertained from the date of refusal. In either of the cases the date is ascertainable. One can have no quarrel with the above proposition. But one fails to understand how the principle can apply to the facts of the case.
24. Heavy reliance was placed on the decision in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (registered) vs. Ramesh Chander and others ((2010) 14 Supreme Court Cases 596). The question of limitation was indeed considered in the case. But the facts of the case show that notice for refusal to execute sale deed was sent in R.S.A No.1139/2012 23 1991 and much later on suit for injunction was instituted and in that context, the Apex Court had occasion to hold that as soon as refusal was intimated to the vendee, time for specific performance had started to run and as the suit for specific performance was not filed within three year, it is barred and the suit is also hit by Order 2 Rule 2 of the Code of Civil Procedure.
25. It may be noticed that the date can be determined in the above referred case from the facts of the case. There was specific refusal to execute sale deed in 1991 and before the expiry of three years therefrom, there was no effort from the side of the vendee to seek a decree for specific performance. He instead waited for nearly 11 years. It was under that context, the Apex Court had occasion to hold that the relief cannot be granted to the plaintiff. The relevant paragraphs are 24, 30, 31 and 32. Paragraph 24 reads thus:
"24. In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent within the period of R.S.A No.1139/2012 24 limitation. In this context, the provision of Article 54 of the Limitation Act is very relevant. The period of limitation prescribed in Article 54 for filing a suit for specific performance is three years from the date fixed for the performance, or if no such date is fixed, when the plaintiff has noticed that performance is refused".
26. Paragraphs 30, 31 and 32 read thus:
"30. This Court is, therefore, of the opinion that the appellant had the cause of action to sue for specific performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. This Court may consider its omission to include the relief of specific performance in the suit which it filed when it had cause of action to sue for specific performance as relinquishment of that part of its claim. The suit filed by the appellant, therefore, is hit by the provisions of Order 2 Rule 2 of the Civil Procedure Code.
31. Though the appellant has not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2 Rule 2, but the broad principles of Order 2 Rule 2, which are also based on public policy, are attracted in the facts of R.S.A No.1139/2012 25 this case.
32. Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court. This Court held in Vishwambhar vs. Laxminarayan, if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation (SCC at pp.168- 69, para 9). Those principles are applicable to the present case".
27. On going through the above decisions, it can be seen that they stand on an entirely different footing.
28. Coming back to Section 13 of the Specific Relief Act on which heavy reliance was placed by the appellant, the relevant R.S.A No.1139/2012 26 provision reads as follows.
"Section 13(1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:-
(a) ......
(b) ......
(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee".
29. The above provision construes the situation where agreement for sale has been entered into between the parties and it was later on found that the property is encumbered. Under such circumstances, the law provided the vendee to force the vendor to discharge the encumbrance. On a plain reading of the provision, it is evident that it can have no application to the R.S.A No.1139/2012 27 facts of the case. It construes a situation where by defective or imperfect title, the vendee is put in a difficult situation and the Section then provides a remedy to such a vendee to enforce a contract by insisting the vendor to discharge liability or enabling him to discharge liability and get the sale deed executed from the third party in whose favour mortgage has been given. In the case on hand, there is no such situation available. Here it is made clear in the agreement for sale itself that the property is encumbered and that the vendor undertakes to discharge the obligation. Further there is no evidence in the case on hand to show that the property was mortgaged for an amount less than the purchase money.
30. In the decision in Laxman Tatyaba Kankate & Anr. vs. Smt.Taramati Harishchandra Dhatrak ( AIR 2010 SC 3025) it was held that Section 13(1)(b) of the Specific Relief Act deals with a situation where a person contracts to sell immovable property or an encumbered property which was not at the knowledge of the vendee at the initial stage. A plain reading of R.S.A No.1139/2012 28 Section 13 would clearly indicate that it concerns with a situation where certain facts which are within the exclusive knowledge of the vendor are not disclosed to the vendee and later on it was revealed to the vendee. In such a situation, the law provides a remedy by way of Section 13 to the vendee.
31. In the light of the above principles laid down in various decisions, it is difficult to accept the plea of the learned counsel for the appellant that the latter clause fixes a period for execution of the sale deed or in other words, the contention raised by the learned counsel for the appellant that one year period fixed for discharging the loan ipso facto provides the beginning of the time for running of limitation for the execution of sale deed enabling the plaintiff to seek specific performance within three year therefrom cannot be countenanced.
32. Both the courts below were justified in coming to the conclusion that it is not possible to ascertain the date fixed for execution of sale deed and it could be ascertained only from the date on which the execution is denied or declined. None of the R.S.A No.1139/2012 29 principles referred to above by the learned counsel for the appellant can have any application to the facts of the case.
33. Coming to the question of discretional remedy under Section 20 of the Specific Relief Act, as already stated, in cases where Section 53A of the Transfer of Property Act apply and it is proved that the vendee was always ready and willing to perform his part of the contract, the question of discretion under Section 20 of the Specific Relief Act has very limited application. Unless it is shown that the vendee is guilty of considerable latches, the question of applying the principle under Section 20 of the Specific Relief Act does not apply.
34. The question of exercising discretion in favour of the vendor does not arise for consideration in the case on hand. It needs to be noticed that the entire sale consideration had been paid and nothing further remains to be done on the part of the vendee. It was the obligation of the vendor to discharge the debt and execute sale deed. It is also interesting to note that the vendor extended the mortgage after one year period for availing R.S.A No.1139/2012 30 of additional amount without the knowledge of his vendor. Both the courts below cannot be found fault with in not exercising the discretion under Section 20 of the Specific Relief Act in favour of the appellant.
35. For the above reasons, this Court finds no reason to interfere with the judgment and decree of the courts below though for different reasons.
The appeal is without merits and it is accordingly dismissed. There will be no order as to costs.
Sd/-
P.BHAVADASAN JUDGE smp