Jharkhand High Court
Smt. Kusum Bhuwania vs Vijendra Kumar Goel on 10 August, 2007
Equivalent citations: [2007(4)JCR158(JHR)]
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. Plaintiff / appellant has filed the instant appeal against the judgment dated 17.1.1998 and its corresponding Decree dated 4.2.1998 passed in Title Suit No. 19 of 1990 by the Sub Judge-I, Koderma, whereby the suit, as filed by the plaintiff, was dismissed on contest.
2. The suit as filed by the plaintiff was for a declaration that the contract dated 25.3.1985 for the sale of Schedule 'A' land mentioned in the plaint, to the plaintiff by the defendant, was still subsisting and the defendant was bound by the said contract to execute and register the sale deed in respect of the suit land in favour of the plaintiff. A further prayer was made for restraining the defendant from transferring the suit land to any of the person except the plaintiff by either sale or mortgage or any other.
The case of the plaintiff is that on 25.3.1985 the defendant had entered into a written agreement with the plaintiff agreeing to sell 47 decimals of land described in the Schedule 'A' of the plaint for a total consideration of Rs. 3,01,000/- and the defendant had received a sum of Rs. 501/- as earnest money from the plaintiff on the date of the agreement and on the same date, had also delivered possession of the suit land to the plaintiff. The defendant had promised to execute and register the sale deed within three months from the date of the agreement i.e. 25.3.1985, but despite repeated demands made by the plaintiff, expressing her willingness to pay the balance of the consideration amount, the defendant had failed and neglected to execute and register the sale deed on one pretext or another. The further case of the plaintiff is that though, at the time of executing the aforesaid agreement, the defendant had represented that the total area of land was 47 decimals, but on actual measurement, it was found only 36 decimals. The plaintiff thereafter served legal notice upon the defendant on 8.5.1985 stating the actual area of the suit land which is situated within the brick built boundary wall and expressing her willingness and readiness to pay the balance of the consideration amount proportionate to the purported actual area and demanding execution of the sale deed in her favour. Demand legal notices were allegedly issued by the plaintiff to the defendant on several dates, the last being on 19.6.1990. The plaintiffs husband approached the defendant on 18.10.1990 with a request to receive the balance consideration amount for the existing area of the land and to execute and register the sale deed, but the defendant had refused to accede to the request claiming that the agreement was not subsisting and binding upon him.
3. Contesting the claim of the plaintiff, the defendant / respondent, by filing his written statement, has challenged the maintainability of the suit on the ground that the suit was barred by law of limitation and it was hit under the provisions of Specific Relief Act. As per pleadings of the defendant / respondent, he had acquired total area of 47 decimals of land by virtue of two separate sale deeds dated 19.12.1970 from Ranjeet Kumar Samonta and Sujit Kumar Samonta respectively, and since the date of purchase, he has been coming in possession of the entire land by constructing the boundary wall over the land. The defendant had pleaded that on account of the good relation between him and the plaintiffs husband, he had mentioned to the plaintiffs husband about his intention to sell the land sometime in the month of March 1985 and on 25.3.1985, the plaintiffs husband along with her son met the defendant at the latter's factory at Jhumaritelaiya. Both visitors brought with them an agreement on which they obtained signature of the defendant, who had appended his signature without going through the contents of the documents. Later on, when defendant went through the copy of the typed paper, he realized that it was purported to be an agreement of sale of the suit land showing receipt of Rs. 501/- as earnest money and also stating that he had handed over the possession of the suit land to the plaintiff. Defendant has denied to have delivered possession of the suit land to the plaintiff at any point of time or to have handed over any document of title of the suit land. He lodged his protest with the plaintiffs husband denying the latter had ever approached him with his request to sale the suit land to him. The defendant had ultimately relented and agreed to sell the suit land for a total consideration amount of Rs. 3,01,000/- and had agreed to execute the sale deed and to deliver possession of the suit land only after receiving the full consideration amount. It was pleaded in written statement that under the terms of the agreement, the sale deed would be executed within three months after receiving the full consideration amount, but the plaintiff or her husband failed to pay the consideration amount within the time stipulated in the agreement in spite of several reminders by the defendant during the period. The defendant has further asserted that the total area of the land was 47 decimal and the boundary wall was constructed over 45 decimal leaving 2 decimal as vacant land in the front towards right side. The further contention of the defendant is that a proceeding under Section 144 Cr. PC was initiated in the year 1986 between him and one Digvijay Narayan Singh with respect to the same suit land and the rule of restraint in the said proceeding was vacated in favour of the defendant and the suit land is still in possession of the defendant over which he had constructed a small house within boundary wall and the defendant has been paying rent and obtaining rent receipt continuously. The defendant had also pleaded that the price of the land has considerably increased from the date of the agreement and the agreement was not subsisting.
4. Thus, according to the pleadings of the defendant, the deed of agreement was signed by him on 25.3.1985. Defendant had admitted that he had agreed to sell the suit land measuring 47 decimal to the plaintiff and to execute the sale deed within three months from the date of the agreement on the condition that the entire consideration amount is paid to him within the stipulated period.
5. On the basis of the rival pleadings, learned court below has framed following issues:
i. Is the suit as framed maintainable?
ii. Has the plaintiff valid cause of action for the suit?
iii. Whether the sufficient court fee has been paid?
iv. Is the suit barred by law of limitation?
v. Whether the contract for sale dated 25.3.85 with respect to Schedule A land in favour of the plaintiff is still subsisting? vi. Whether the plaintiff is entitled to perform part performance of his contract?
vii. Whether the defendant is bound to execute and register the sale deed with respect to Schedule A land in favour of the plaintiff after receiving the balance consideration money? viii. To what relief or reliefs, is the plaintiff entitled?
5. On the issue No. 4 relating to limitation, the learned court below has recorded its finding in favour of the defendant and against the plaintiff holding that the suit is barred by limitation on the ground that the suit was filed after five years from the date of agreement, whereas period of limitation prescribed under Article 54 of the Limitation Act, was three years.
On the relevant issue Nos. 5, 6 and 7 as to whether the agreement for sale dated 25.3.1985 in respect, of the suit land is not subsisting and, whether the plaintiff is entitled to claim specific performance of the contract by the defendant, the learned court below has recorded its finding that the agreement for sale is not subsisting, for the reason that the suit was not filed within three years from the date of the agreement and, therefore, the defendant is not bound to execute and register the sale deed in respect of the suit land in favour of the plaintiff.
6. The appellant has assailed the impugned judgment of the learned court below on the ground that the learned court below has adopted hyper technical approach and has dismissed the suit entirely on technical grounds in spite of the fact that the defendant has admitted to have executed the agreement and has also expressed his willingness to register the sale deed in favour of the plaintiff. Shri P.K. Prasad, learned Counsel for the appellant, would argue that the finding of the trial court on the point of limitation against the plaintiff is totally erroneous. Learned Counsel explains that though the suit was instituted in the year 1990 and according to the terms of the agreement dated 25.3.1985, the sale deed was to be executed within three months, but time was not the essence of the contract and this would be apparent from the fact that the defendant had accepted execution of the agreement and had expressed his willingness and preparedness to execute the sale deed, in his correspondence with the plaintiff long after the expiry of the period of three months stipulated in the agreement. Learned Counsel has round further fault with the impugned judgment of the learned court below that the learned court below has wrongly decided issue No. 5,6 and 7 together, although issues are independent to each other and not inter-related and thereby has caused serious prejudice to the plaintiff. It is further argued that the finding as recorded by the learned court below on various issues arc misconceived and misplaced and not in consonance with the evidences on record and that the learned court below has erred in rejecting the evidence of the plaintiff on the misconceived ground that the witnesses are interested persons. Learned Counsel argues further that the finding of the learned court below that the plaintiff is not in possession of the suit land and the reasons assigned in support of such finding, arc wholly illegal, unreasonable and unsustainable in the eye of law.
7. Counsel for the respondents has controverted the grounds advanced by the plaintiff as being misconceived and misplaced. Learned Counsel argues that time was essence of the contract and this has been elaborately demonstrated by the pleadings and evidences adduced by the defendant which have also brought on record that the plaintiff was never forthcoming with her offer to pay the total consideration amount to the defendant within the period stipulated. It is further argued that the defendant had acknowledged to have received only one notice on 8.5.1985 from the plaintiff, whereby plaintiff has sought to dispute the actual area of the land, but the defendant had promptly refuted her claim stating that the total area is 47 decimal and boundary wall was constructed on 45 decimal leaving 2 decimal of land as vacant. Yet, instead of making prompt payment of the settled consideration amount, the plaintiff had continued to refuse to pay the amount despite repeated reminders of the defendant. Learned Counsel explains further that the defendant had always insisted upon the plaintiff that time being the essence of the contract, she should pay the consideration amount within the period and it was during this period that he has expressed his willingness to execute the sale deed in favour of the plaintiff, but his willingness has to be deemed as withdrawn after the expiry of the period stipulated in the contract and as such, appellant / plaintiff is not entitled to any relief under Section 53A of the Transfer of Property Act.
8. Issue which calls for consideration in this appeal is,
1. Whether the time was the essence of the contract?
2. Whether the suit was barred by law of limitation?
3. Whether on the basis of the evidences adduced, plaintiff had expressed her willingness and preparedness to perform her part of the contract by making her offer to pay the settled consideration amount to the defendant?
9. On the issue relating to limitation, learned Counsel for the appellant has tried to explain that in the instant case, Article 54 of the Limitation Act would apply wherein the period of limitation is three years in respect of the suit for specific performance of the contract, but the period has to be reckoned from the date the plaintiff had noticed that specific performance of contract was refused by the defendant. Learned Counsel explains further that in the instant case, although the agreement stipulates the period of three months from the date of the agreement for execution of sale deed, but considering the fact that even after the expiry of the period of three months, the defendant had himself agreed to execute the sale deed in favour of the plaintiff, it cannot be said that the time was the essence of the contract and the period of limitation would commence from the date when the plaintiff came to know about the refusal of the defendant to perform his part of the contract. Learned Counsel explains further that it was on 18.10.1990 when the plaintiffs husband had approached the defendant to receive the consideration amount and to execute the sale deed, hut the defendant had refused to perform his part of the contract and as such, it is this date which has to be taken for computing the period of limitation. On the basis of the same reasons, learned Counsel argues that time was never considered by the parties as the essence of contract and though the recital in the agreement stipulates a period of three months for performance, the defendant by his conduct, has waived the same.
10. Before appreciating the above argument, it would be relevant to note that during the pendency of the proceeding before the trial court, a petition was filed by the plaintiff under Order 6 Rule 17 Section 151 C.P.C. seeking certain amendments in the plaint to include her prayer for a direction to the defendant to execute and register the sale deed filed by the plaintiff after receiving the consideration amount and also to fix a date for execution of the sale deed. By order dated 27.8.1993 the prayer for amendment was rejected by the trial court. Against he aforesaid order, the plaintiff had preferred Civil Revision before the High Court vide C.R. No. 373 of 1993 (R). By order dated 17.4.1995 passed in the Civil Revision, the High Court had allowed the amendment sought for by the plaintiff. Against the order of the High Court, defendant had preferred Special Leave Petition before the Supreme Court which was registered as Civil Appeal No. 4820 of 1996. The Supreme Court vide order dated 21.3.1996, set aside the order of the High Court by restoring the order of the Sub Judge dated 27.8.1993 disallowing the amendment of the plaint.
11. From the above facts and the pleadings of the plaintiff, it is apparent that the suit was filed with a prayer for declaration and injunction only and there was no prayer for specific performance of the contract. An attempt was made to include the prayer for amendment in the plaint, for specific performance of the contract, but the prayer for amendment was rejected and the order of rejection as passed by the learned trial court was sustained even by the Supreme Court. It may be noted that the defendant has not denied execution of the agreement dated 25.3.1985 even in his written statement. As such, there could be no occasion for the plaintiff to file suit for declaration instead of seeking specific performance of the contract. Since the suit was not filed with a prayer for specific performance of the contract, the suit would be barred under the provisions of Section 34 of the Specific Relief Act.
12. It is also to be noted that since the suit was filed only for declaration, the period for limitation prescribed under Article 58 of the Limitation Act is three years from the date of the agreement. In the present case, right to sue accrued to the plaintiff on the expiry of three months period from the date of agreement and the period of limitation to file suit for declaration expired on 25.6.1988. As against such period of limitation, the suit was filed on 21.12.1990.
13. The plea of the appellant that the cause of action accrued to her on the date when she came to know that the defendant had refused to perform his part of the contract, cannot be accepted. If the plaintiffs claim that prior to the expiry of the three months period as stipulated in the agreement, she had persistently made offers to the defendant to receive the consideration amount and to execute the sale deed, is to be accepted, then also the failure of the defendant to execute the sale deed within the period stipulated in the agreement, did at once give her a cause of action to sue. Attempt of the learned Counsel for the appellant to impress by referring to the correspondence exchanged between the parties that the defendant had agreed to execute the sale deed even after the lapse of the stipulated period of three months and, therefore, the cause of action did accrue to the plaintiff even after expiry of the stipulated period of three months, is also not convincing. The defendant has categorically denied to have received any letter or notice from the plaintiff expressing her willingness to pay the settled consideration amount and demanding execution of the sale deed from him except the sole letter dated 8.5.1985 whereby she had disputed the actual area of the land and the defendant had admittedly given his prompt reply to the letter refuting the dispute raised by the plaintiff regarding the measurement of the land and has also demanded that the plaintiff should pay the settled consideration amount promptly. The plaintiffs claim that her husband had approached the defendant on 18.10.1990 with a request to receive the balance of the consideration money of the actual area on spot and to execute and register the sale deed, has been categorically denied by the defendant. The plaintiff has not led adequate evidence in support of her claim. Even otherwise, since the suit was filed for declaration only and not for specific performance of contract, these arguments have no relevance. It also appears from the evidence and the plaintiffs son (PW 3) of which the trial court has also taken notice, that the said witness has admitted that his mother (plaintiff) did not try to get the sale deed executed by the defendant within three months from the date of the agreement.
14. Considering the above facts as also the evidences on record, it is apparent that the suit being filed beyond the period of three years of limitation, commencing from the date of expiry of three years period stipulated in the agreement, the suit is barred by limitation. There is no impropriety or infirmity in the finding of the learned court below on this issue as also on the other issues framed in the suit.
15. The claim of the learned Counsel for the appellant that even though plaintiff has not specifically prayed for specific performance of the contract, it has certainly prayed for grant for other relief or relief(s) to which plaintiff will be found entitled in the law of equity, should have been considered by the learned court below to grant relief for specific performance of the agreement, also appears to be misconceived. A mere prayer for "any other relief or relief(s)" does not mean that in absence of specific prayer for specific performance and overriding the statutory provision under Section 34 of the Specific Relief Act, the suit should he decreed by allowing relief for specific performance.
16. For the reasons discussed above, I do not find any merit in this appeal. Accordingly, this appeal is dismissed with cost(s).