Gujarat High Court
Chandrabhushan Ramnand Sinh vs Nilaben D/O.Bhogilal B Patel ... on 22 August, 2025
NEUTRAL CITATION
C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025
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Reserved On : 23/07/2025
Pronounced On : 22/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13512 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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CHANDRABHUSHAN RAMNAND SINH & ANR.
Versus
NILABEN D/O.BHOGILAL B PATEL &WD/O.HASMUKHLAL M SHAH & ORS.
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1,2
MR BJ TRIVEDI(921) for the Respondent(s) No. 2.2
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 2.2
RULE SERVED for the Respondent(s) No. 1,2.1,2.3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"A] The Honourable Court be pleased to issue writ of certiorari or any other appropriate writ, order or direction, by quashing and setting aside judgment and order passed by the learned City Civil Judge below Exh. 27 and 28 in Civil Suit No. 776 of 2006, dated 19/01/2011 and be further pleased to allow the amendment application Exh. 28 in Civil Suit No. 776 of 2006, filed by the present petitioners in the Page 1 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined interest of justice.
[B] Pending hearing and final disposal of the present petition the Honourable Court be pleased to direct the respondents to maintain status quo with regard to the suit property of the Civil Suit No. 776 of 2006, in the interest of justice.
[C] Looking to the facts and circumstances of the case, any other and further relief/s be granted in favour of the present applicant in the interest of justice."
Facts of the case 2.0 The petitioners herein are original plaintiffs, who instituted Regular Civil Suit No. 776 of 2006 against the respondents herein. The suit is filed seeking specific performance of the contractual obligation of clearing the title of vendor, incorporated into the registered agreement to sell (hereinafter referred to as 'ATS') dated 24.03.2003 executed by defendants-vendor and also seeking direction that the defendants-vendor to clear the title by removing objections mentioned in the solicitor's M/S H.Desai Company & Co. title clear certificate dated 11.03.2003. The prohibitory injunction is also sought for, thereby prayed that defendants should not transfer, alienate suit property in any manner whatsoever. The suit came to be filed on 03.04.2006.
2.1 The defendant No.2 appeared in the suit and filed their written statement on 21.04.2006. The defendant No.2 Page 2 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined categorically stated in Para-10 of his written statement that plaintiffs having not filed suit seeking specific performance of ATS itself and no relief is sought under specific relief act, no cause of action accrued to file suit. Hence, the plaintiffs are not entitled for any declaration.
2.2 It appears that initially the plaintiffs have executed a registered agreement to sell with defendants in relation to suit property on 25.11.2002. The Solicitor - M/s H. Desai & Co. vide its letter dated 11.03.2003 informed the plaintiffs that there are several stake holders in relation to suit property as it is subjected to other agreement to sell executed by the defendants in favour of such parties. So, the plaintiffs and defendants have decided to cancel the aforesaid agreement to sell by executing registered cancellation of deed of such agreement to sell on 24.03.2003, thereafter the aforesaid ATS was executed between the parties.
2.3 As per the terms of ATS, its period was fixed for three months from the date of its execution i.e. three months from 24.03.2003, nonetheless in Para-4 of ATS, it is specifically observed that within period of ATS, the defendants will have to get it clear title of suit property by cancelling all previous agreement to sell. After getting clear all objections, the Page 3 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined defendants will have to execute sale-deed and period of ATS would be considered till such time meaning thereby, ATS would stand alive till objections get cleared by vendor.
2.4 It further appears that prior to filing of suit, plaintiff issued suit notice dated 26.06.2003, whereby called upon the defendants to execute sale deed in their favour in pursuance to ATS. It is averred in the aforesaid notice that, if the defendants would not execute sale deed, the plaintiffs have no other option but to file a suit for specific performance against them in the City Civil Court, Ahmedabad City. Such suit notice was replied by the defendants vide its reply dated 05.08.2003 by their Lawyer wherein they have refuted all the allegations made in the suit notice, so also not admitted that there was any ATS executed by them in favour of plaintiffs. It appears from bare reading of such reply that defendants refused to perform as per ATS, thus suit.
2.5 The injunction application filed in the suit at Exh. 6/7 came to be rejected by the trial Court on 09.09.2009, wherein it was specifically observed that, as per Section 41(h) of the Specific Relief Act, 1963, an injunction cannot be granted when an equally efficacious remedy is available by another mode of proceedings, such as a suit for specific performance of the contract, through which the necessary Page 4 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined relief can be obtained. In that view of the matter, its observed that a suit filed for seeking perpetual injunction, much less temporary injunction, cannot be granted. The trial Court, while rejecting the injunction application, observed that the plaintiffs may file a suit for specific performance of the alleged Agreement to Sell (ATS).
2.6 The reasons best known to the plaintiffs, despite the defendants' refusal to perform the terms of the ATS and their reply to the plaintiffs' notice as referred to hereinabove, and despite the trial Court having clearly refused injunction on the ground that the plaintiffs had not sought specific performance of the ATS, which they could have done, not sought for such reliefs at given point of time, now sought for by way of amendment in the suit.
2.7 It appears that third party in whose favour defendants executed agreement to sell and had filed suit, such claim was settled between the third party and defendants on 08.04.2009 having withdrawn such suit.
2.8 The plaintiffs appear to file amendment application under Order 6 rule 17 of CPC on 26.10.2009 below Exh. 28 seeking amendment in the suit, thereby, sought for specific performance of ATS and in alternatively prayed for refund of Page 5 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined earnest money paid by them to the defendants as per ATS being charge over suit property as per Section 55 (6) (b) of Transfer of Property Act, 1882 (herein after referred as the Act, 1882) and so also claim interest thereon. The valuation of suit was also sought to be amended to Rs. 32 lakhs.
2.9 The defendants have objected such amendment application, contending inter-alia that prayers sought in the impugned amendment application is time barred and cannot be granted.
2.10 After hearing the parties, the trial Court vide its impugned order dated 09.01.2011 rejected the impugned amendment application.
2.11 Being aggrieved and dissatisfied with the aforesaid impugned order, the present writ application is filed at the instance of the plaintiffs.
Submission of the petitioners-original plaintiffs
3. Leaned advocate Mr. K.V. Shelat for the petitioners would submit that the impugned order passed by the trial Court is ex-facie erroneous, perverse and contrary to settle principle of law, which requires to be quashed and set aside.
Page 6 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined It is submitted that the trial Court has not correctly appreciated the facts which are narrated in the impugned application and erroneously rejected the amendment application.
3.1 Learned advocate Mr. Shelat would further submit that the trial Court has erroneously arrived at the conclusion that amendment as sought for is time barred whereby, it cannot be granted. It is submitted that the amendment was sought for is not time barred rather, cause of action arose to the plaintiffs to seek specific performance of ATS accrued when objections/ suit filed by the third party got disposed of on 08.04.2009. It is submitted that until such objections/suit was pending, the defendants were not in a position to execute sale-deed in favour of the plaintiffs. So, time to file suit for specific performance having commenced after such withdrawal of the suit, the amendment application was filed well within the period of limitation i.e. 3 years from such withdrawal of suit - 08.04.2009.
3.2 Learned advocate Mr. Shelat would further submit that the trial Court has completely lost sight of fact that as per terms of ATS on happening of contingency i.e. clearance of title of suit, the defendants were supposed to execute sale- deed in favour of plaintiffs. It is respectfully submitted that Page 7 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined the case of plaintiffs falls within Part-I of Article 54 of Indian Limitation Act, 1963 (hereinafter referred to the Act, 1963) and not under Part-II of such Article of Act, 1963.
3.3 Learned advocate Mr. Shelat would submit that a per condition No.4 of ATS, its nothing but contingency of contract and on happening of such events i.e. getting clearance of tittle of suit, from such date, the plaintiffs were entitled to get execute sale deed in their favour. It is submitted that when such contingency occurred in the year 2009, i.e. suit of third party got withdrawn/ settled within period of three years from such event, the plaintiffs can file suit for specific performance and or can sought for such performance by way of filing amendment in the suit.
3.4 Learned advocate Mr. Shelat would respectfully submit that the trial Court has completely misconstrued the terms of ATS and reached to the conclusion that once the defendants refused to perform their part of contract in the year 2003 vide its reply dated 05.08.2003 within three years from such period, the plaintiffs were required to file suit for specific performance and or sought amendment to that effect within three years from accrual of cause of action i.e. 05.08.2003.
Page 8 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined 3.5 Learned advocate Mr. Shelat would further submit that issue of limitation is always considered to be mixed question of law and fact and to decide such issue, the parties is required to give an opportunity to lead their evidence. It is further submitted that as per settled legal position of law, all amendments should be liberally allowed, whereby, the Court can decide real dispute between the parties.
3.6 Learned advocate Mr. Shelat would respectfully submit that so far alternative prayers sought for by plaintiffs by way of amendment application in regards to return of earnest money with interest given to defendants would be not hit by law of limitation as period to recover such amount would be 12 years and not 3 years. It is submitted that as per Section 55 (6) (b) of the Act, 1882 read with Article 62 of the Act, 1963, in a case where the charge over the immovable property, recovery of such amount secured by charged upon immovable property would 12 years from such money becomes due. It is further submitted that earnest money paid in year 2003, whereas amendment sought for to get back refund of earnest money filed in year 2009, thus its well within period of limitation.
3.7 To buttress his argument, learned advocate Mr. Shelat would refer and rely upon the following decisions :-
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(i) Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. reported in (2022) 16 SCC 1.
(ii) Katta Sujatha Reddy and another Vs. Siddamsetty Intra Projects Pvt. Ltd and others reported in 2023(1) SCC 355.
(iii) Ramzan Vs. Smt. Hussaini reported in (1990) 1 SCC 104 : AIR 1990 SC 529.
(iv) Asgar S. Patel Vs. Union of India & Ors. reported in (2000) 5 SCC 311.
3.8 Making the above submissions, learned advocate Mr. Shelat would request this Court to allow the present writ application.
Submission of the respondents-defendants.
4. Per contra, learned advocate Mr. Jinesh H. Kapadia would submit that there is no error much less any gross error of law and or jurisdictional error committed by the trial Court while rejecting the impugned amendment application. It is submitted that despite drawing attention of the plaintiffs Page 10 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined that they have not sought for specific performance of ATS while instituting the suit, even no effective steps be taken by the plaintiffs to sought for such prayers, which are now sought in the amendment application being barred by law of limitation, than cannot be granted.
4.1 Learned advocate Mr. Kapadia would further submit that not only in Para-6 & 10 of the written statement, whereby defendants have specifically raised the issue in relation that plaintiff not sought for specific performance of contract, but in Para-6 read with Para-8 of plaint also, it clearly mentioned by plaintiffs that defendants have refused the performance of ATS by not executing sale deed in favour of plaintiffs. It is submitted that once performance refused by defendants-vendor in year 2003 itself, within 3 years thereafter, plaintiffs-vendee could have sought for specific performance of ATS failing which such claim becomes time barred.
4.2 Learned advocate Mr. Kapadia would further submit that when there is no date fixed as per ATS to execute registered sale-deed, by no stretch of imagination, case of plaintiffs would fall under part-I of Article 54 of the Act, 1963 as alleged. It is submitted that as per plain reading of terms of ATS executed between the parties, case of plaintiffs Page 11 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined would surely fall only under part-II of Article 54 of the Act, 1963 as its never an intention of parties that time was an essence of contract.
4.3 Learned advocate Mr. Kapadia would further submit that when performance of ATS was refused by the defendants on 05.08.2003 sending reply to the plaintiffs, thus refused to execute sale-deed in favour of plaintiffs. So, as per part-II of Article 54 of the Act, 1963, the period of limitation started from such date of receipt of reply by plaintiffs. The plaintiffs were supposed to file the suit for performance within three years from such receipt of the reply i.e. 05.08.2003.
4.4 Learned advocate Mr. Kapadia would further submit that plaintiffs have wrongly interpreted the terms of ATS. It is submitted that to fall plaintiff's case within Part-I of Article 54, there must be fixed date for performance of ATS which was never fixed in the present case. It is further submitted that vide their notice dated 26.06.2003, the plaintiffs have sought for specific performance of ATS by calling upon the defendants to execute registered sale-deed in their favour, which was refused by them on 05.08.2003. So, the case of the plaintiffs would fall in Part-II of Article 54 of Act, 1963 and not part-I of such Article. In that view of the matter, the Page 12 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined amendment sought for specific performance of ATS filed on 26.10.2009 is ex-facie and hopelessly time barred.
4.5 Learned advocate Mr. Kapadia would further submit that once main prayer sought in the impugned application i.e. specific performance of ATS is time barred than alternative relief seeking refund of earnest money would also time barred. So, no prayer made in the amendment application can be granted in favour of the plaintiffs. Nonetheless, learned advocate Mr. Kapadia would candid during his course of submission that as per S. 55 (6) (b) of the Act, 1882, amount of earnest money paid by vendee- purchaser to vendor-seller would be considered as charged upon immovable property and to claim refund of such earnest money, period of limitation is fixed 12 years and not 3 years when it becomes due. It is submitted that to consider as charge upon immovable property would only be property so mentioned in ATS and no other property.
4.6 Learned advocate Mr. Kapadia would further submit that as per settled legal position of law that if the amendment sought for is ex-facie time barred, the Court well within its rights to refuse such amendment. It is submitted that the judgments which have been cited by the learned advocate Mr. Shelat not applicable to the facts of Page 13 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined the case. It is submitted that each cited case having its peculiar facts and circumstance, wherein date of performance is fixed in agreement to sell itself, thereby it was held that period of limitation would begin to run from such date fixed for performance, thereby considered it to fall under Part-I of Article 54 of the Act, 1963 and not under Part-II of the Act, 1963.
4.7 Learned advocate Mr. Kapadia would further submit that as per settled legal position of law to fall the case in Part-I of Article 54 of the Act, 1963, the date should be fixed for performance, which is undisputedly not fixed as per terms of ATS. It is submitted that mere on happening of certain events i.e. clearance of title, defendants were require to execute sale-deed in favour of plaintiffs would not be ipso-facto considered as specific date fixed for performance and then after only, it amounts to accrual of cause of action in favour of plaintiffs.
4.8 Learned advocate Mr. Kapadia would further submit that ordinarily in a case like present one, any agreement to sell executed between the parties in relation to immovable property, time is not considered as an essence of contract and in that eventuality also, case would only fall under Part-II of Article 54 of the Act, 1963 and not Part-I of such Article.
Page 14 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined 4.9 To buttress his argument, learned advocate Mr. Kapadia would refer and rely on the following decisions :-
(i) Ahmadsahab Abdul Mulla (dead) by proposed LRs. vs. Bibijan and others reported in (2009) 5 SCC 462.
(ii) A. Valliammai vs. K.P. Murali and others reported in AIR 2023 SC 4375.
(iii) Usha Devi and others vs. Ram Kumar Singh and others reported in AIR 2024 SC 4591.
4.10 Making the above submission, learned advocate Mr. Kapadia would request this Court to reject the present writ application.
5. No other and further submissions have been made by the learned advocates for the respective parties.
Point for determination
(i) Whether the case of the plaintiffs seeking specific performance of ATS by way of an amendment in pending suit would be governed by Part-I or Part-II of Article 54 of the Page 15 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined Limitation Act, 1963 ?
(ii) Whether in the facts and circumstances of the case the amendment sought for by plaintiffs can be granted or not? If yes, what relief?
Analysis
6. To appreciate the controversy germane in the matter, the facts which are observed hereinabove can be summarized as follow.
(i) The ATS was executed between the parties on 24.03.2003 for the suit property in question.
(ii) As per condition No.3, the period fixed for ATS was three months.
(iii) As per condition No.4 of ATS, within period of ATS, defendants were supposed to get it cancelled the other agreement to sale and to get it clear title of suit property.
(iv) As per very condition No.4 of ATS, the period of ATS would continue until title gets cleared.
(v) As per such condition, after getting clear the title of suit Page 16 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined property, defendants shall have to execute sale deed in favour of plaintiffs.
(vi) The plaintiff sent pre-suit notice dated 26.06.2003 thereby sought for execution of sale deed which was refused by defendants vide their reply dated 05.08.2003. So, in clear terms, defendants-vendor refused to perform as per terms of ATS.
(vii) The plaintiffs have specifically pleaded in para-6 & 8 in their plaint came to be filed only on 03.04.2006 that defendants neither accepting balance sale consideration nor ready to execute sale deed. Its also observed that cause of action arose as defendants not acted as per terms of ATS and trying to sell suit property to third party thereby trying to create charge over suit property.
(viii) The defendants have also specifically denied to perform as per terms of ATS having so observed in Para-6 & 10 of the written statement. Its further stated that no specific performance of ATS sought for by plaintiff and suit having not filed under Specific Relief Act, 1963, suit not to be entertained.
(ix) The trial Court has also rejected injunction citing S. 41 Page 17 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined
(h) of the Specific Relief Act, 1963 having so observed that though plaintiff could have sought for specific performance of ATS but having not sought for such relief, no injunction can be granted.
(x) The impugned amendment application came to be filed on 26.10.2009 whereby sought for specific performance of ATS and in alternative sought for refund of earnest money with interest thereon having stated to charge as per S. 55 (6)
(b) of Act, 1882.
7. It further agreed between the parties that after all objections which were mentioned in title clear certificate dated 11.03.2003 issued by Solicitor M/S H Desai Company, the defendants would execute sale deed in favour of plaintiffs. It was also agreed that period of ATS would stand continue till such time i.e. getting cleared title of subject property.
8. It remains undisputed that within period of three months, the defendants were not able to get it cleared title of suit property. The defendants have issued notice dated 26.06.2003 whereby called upon the defendants to execute sale-deed in their favour. It clearly mentioned in such notice that failing to execute sale-deed, they (vendee) would file Page 18 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined suit for specific performance against them (vendor).
9. The defendants have replied to such notice vide their Advocate's letter dated 05.08.2003, completely denying existence of ATS as well as refused to execute sale-deed. So, plaintiff had an intimation/notice that vendor refused to perform his part of the contract. After receipt of such refusal, for quite long time, plaintiffs did nothing. Nonetheless, suit in question came to be filed only on 03.04.2006 wherein they did not sought for any specific performance of ATS, but only sought declaration that defendants be directed to get title clear of suit property.
10. The defendant No.2 having filed his written statement on 21.04.2006 specifically pleaded in Para-10 that plaintiffs having not sought for specific performance and no relief prayed under Specific Reliefs Act, the suit itself is not maintainable and as no cause of action arose.
11. These above-stated facts are not in dispute between the parties. In light of the aforesaid facts, it is very much clear like a day that defendants-vendor have refused to perform their obligations under ATS on 05.08.2003 when issued aforesaid reply. It was issued in pursuance to the performance sought by plaintiffs vide its notice dated Page 19 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined 26.06.2003 knowing-fully well that defendants have not cleared the objections and there was no clear title with them for execution of sale-deed.
12. At this stage, it would be appropriate to quote Article 54 of the Act, 1963 which would be applicable to the facts of present case reads as follow:
54. For Three years The date fixed for the specific performance, or if no such performance date is fixed, when the of a contract plaintiff has notice that performance is refused"
13. According to the plaintiffs, the case would fall in Part-I of Article 54 of the Act, 1963. Whereas, defendants would state that it fall in Part-II of said article. As such, when plaintiffs having asked for performance of agreement, which was refused by the defendants, the cause of action arose to the plaintiffs to file suit for specific performance within three years from such refusal i.e. accrual of cause of action.
14. Learned advocate Mr. Shelat would emphasized that merely because such performance was sought for and even refused by the defendants would not ipso-facto considered the case of plaintiffs falls under Part-II of Article 54 of the Limitation Act, 1963 inas much as when terms of ATS would Page 20 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined otherwise. Such argument is not only misconceived on facts but also at law and run contrary to what was intended by the parties while executing ATS.
15. Having so clearly understood between the parties that on getting cleared tittle by defendants then-after they will have to execute the sale deed in favour of the plaintiffs and till such time ATS would stand alive itself suggests that time was never an essence of contract (ATS) executed between the parties.
16. It is well settle legal position of law that so far as contract in relation to immovable property is concerned, ordinarily, time is not considered to be an essence of contract, unless terms so fixed by the parties to the contract.
17. As such, the judgments cited by the learned advocate Mr. Shelat would not be applicable to the facts of the present case and it is distinguishable one which I do so herein below.
18. One of such cited judgment, in the case of Ramzan (supra) also cited before the trial Court as well, which is correctly distinguished by the trial Court having not applied to the facts of the case. In the case of Ramzan (supra) terms Page 21 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined of agreement to sell which is reproduced by Hon'ble Apex Court in para-6 of the judgment itself, would clearly observed that when the mortgage deed gets redeemed and take the papers of registry in possession of vendor, on that day, vendor agreed to execute sale-deed in favour of vendee. So, in light of such specific terms of agreement between the parties, the Hon'ble Apex Court arrived at conclusion that period of limitation started running on happening of such date i.e. redemption of mortgage. Whereas, in present case, as observed hereinabove, no such date was fixed between the parties. The relevant observation of para-6 of said decision reads as under :-
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 calendar 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 Page 22 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined 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 the meaning of Section 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 Gouda [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. Brighton Club and Norfolk Hotel Compan [(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, 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 54 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 Page 23 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined first part of Article 54 (third column) and not the second part." (emphasis supplied)
19. Likewise, the decision in the case of Katta Sujatha Reddy (supra) would also not be applicable to the facts of the present case inasmuch as, it is so observed in Para-35 of such decision that date was fixed for payment of consideration i.e. three months from the date of agreement and in that peculiar facts and circumstance of the case, the Hon'ble Apex Court considering that date was fixed for specific performance of contract and having not filed suit within the period of limitation as prescribed under Part-I of Article 54 of the Limitation Act, 1963, the suit was held to be time barred. As such, in Para-38 it is specifically observed that when suit filed by the purchaser was clearly time barred by limitation, no ground of defence could have remedied such breach of condition. The relevant observation of facts made by the Ho'ble Apex Court in the aforesaid case, requires to be reproduced, which is reproduced.
"35. In view of the aforesaid provisions, the vendors were entitled to rescind the contract as there was a breach of condition, i.e, 'time was the essence'. Coming back to the point of limitation, it is clear that Article 54 of the Limitation Act mandates that in this case at hand, the date fixed for payment of consideration was three months from the date of the agreements (i.e. 26.03.1997 and 27.03.1997). In any case, the time period for filing the suit had commenced from 26/27.6.1997 and would have expired after three years, i.e., in the end of June 2000.Page 24 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025
NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined xxxxxxxx
37. In this context, we may note that Article 54 of the Limitation Act provides for two consequences based on the presence of fixed time period of performance. It is only in a case where the time period for performance is not fixed that the purchaser can take recourse to the notices issued and the vendors' reply thereto. In the case at hand, the aforesaid circumstances do not come into play as a fixed time period was clearly mandated by Clause 3 read with Clause 23 of the agreements to sell, as explained above.
38. In light of the above, we may note that the suit filed by the purchaser was clearly barred by limitation in view of the first part of Article 54 of the Limitation Act and no amount of payment of advance could have remedied such a breach of condition.
(emphasis supplied)
20. Per Contra, the Full Bench of the Hon'ble Apex Court in the case of Ahmadsahab Abdul Mulla (dead) by proposed LRs. (supra) had an occasion to decide the reference made to them as to whether use of expression 'date' used in Article 54 of the Schedule to the Limitation Act, is suggestive of a specific date in the calendar?. The Full Bench of the Hon'ble Apex Court in the aforesaid case answered thus :-
"2. The relevant question is : whether the use of the expression "date"
used in Article 54 of the Schedule to the Limitation Act, 1963 (in short "the Act") is suggestive of a specific date in the calendar?
6. Article 54 of the Schedule to the Act reads as follows:
"Description of suit Period of Limitation Time from which period Page 25 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined begins to run
54. For specific Three years The date fixed for the performance of a performance, or if no such contract date is fixed, when the plaintiff has notice that performance is refused"
rd
9. According to Advanced Law Lexicon by P. Ramanatha Aiyar, 3 Edition 2005, the word 'date' means as follows:
"Date. (As a noun) The point of time at which a transaction or event takes place; time given or specified; time in some way ascertained and fixed; in a deed, that part of the deed or writing which expresses the day of the month and year in which it was made, (2 Bl. Commn. 304; Tomlin). In Bement v. Trenton Locomotive, etc., Mfg. Co., 32 NLJ 513 (515), it is said : `The primary signification of the word date, is not time in the abstract, nor time taken absolutely but, as its derivation plainly indicates, time given or specified time in some way ascertained and fixed; this is the sense in which the word is commonly used. When we speak of the date of a deed, we do not mean the time when it was actually executed but the time of its execution, as given or stated in the deed itself.
"Where a deed bears no date, or an impossible date, and in the deed reference is made to the `date', that word must be construed `delivery'; but if the deed bears a sensible date, the word `date', occurring in the deed, means the day of the date, and not that of the delivery"
"Date", though sometimes used as the shortened form of "day of the date", is not its synonym; but mean the particular time on which an instrument is given, executed, or delivered.
"The word `date' is much more commonly descriptive of a day than of any smaller division of time" (per Simpson v. Marshall, 37 SLR 316).Page 26 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025
NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined "Date" means day, so that where a cover note providing for temporary insurance of a motor car expires "15 days after date of commencement" it runs for the full 15 days after the day on which it was to commence (Cartwright v. Mac Cormack; Trafalgar Insurance Co. (Third Party), (1963) 1 WLR 18)."
10. 'Fixed' in essence means having final or crystallized form or character not subject to change or fluctuation.
11. The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized 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 for doing a particular act. Even in the second part the stress is on 'when the plaintiff has notice 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.
12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly............" (emphasis supplied)
21. So, the Full Bench of the Hon'ble Apex Court in the aforesaid case has clearly observed that expression 'date' used in Article 54 of the Schedule to the Limitation Act, definitely is suggestive of specified date in the calendar.
22. Likewise in the case of Usha (supra) while considering terms of agreement to sell so as to apply Article 54 of Limitation Act, 1963 held thus :-
Page 27 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined "8. We need not enter into the other issues as we are convinced that the suit was barred by limitation. The limitation under Article 54 of the Limitation Act, 1963 for instituting a suit for specific performance of a contract would be three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Article 54 of the Limitation Act, 1963 is reproduced hereunder:
54. For Three years The date fixed for the specific performance, or if no such performance date is fixed, when the of a contract plaintiff has notice that performance is refused"
9. Coming to the facts of the present case, we find that in the agreement dated 17.12.1989, it is specifically mentioned that the sale deed would be executed within one month from the date of the said agreement. The period of one month would expire on 16.01.1990, and once there is a specific date fixed for performance, the limitation period would be three years from the said date, which would expire on 16.01.1993. The Trial Court thus held that the suit was barred by limitation as it was filed in September 1993."
(emphasis supplied)
23. Similarly in the case of A. Valliammai (supra), the Hon'ble Apex Court after considering the terms of agreement to sell comes to the conclusion that though time was fixed before which sale deed to be executed but the same was extended for further fixed period by way of endorsement, such act of party for extending period of execution of sale-deed till such time, as fixed vide agreement to sell and endorsement, was not considered as Page 28 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined essence of contract and thus held Part-I of Article 54 of the Act, 1963 would not be applicable but Part-II of Article 54 of the Act, 1963 would apply. The relevant observation so made by the Hon'ble Apex Court in the aforesaid judgment reads as under :-
"20. Article 54 of Part II of the Schedule to the Limitation Act, 1963 stipulates the limitation period for filing a suit for specific performance as three years from the date fixed for performance, and in alternative when no date is fixed, three years from the date when the plaintiff has notice that performance has been refused. Section 9 of the Limitation Act, 1963 stipulates that once the limitation period has commenced, it continues to run, irrespective of any subsequent disability or inability to institute a suit or make an application.
21. It is an accepted position that Rs. 1,00,000/- was paid at the time of execution of the agreement to sell (Exhibit A-1), and the balance consideration of Rs. 31,45,000 was required to be paid by 26.05.1989. Time for payment of Rs. 31,45,000/- and execution of the sale deed was extended till 26.11.1989 vide the endorsement (Exhibit A-3). If we take the date 26.11.1989 as the date for performance, the suit for specific performance filed on 27.09.1995, is barred by limitation. However, we agree with the submission raised on behalf of K.P. Murali and S.P. Duraisamy, that the aforesaid time, as fixed vide the agreement to sell and the endorsement (Exhibit A-1 and A-3), was not the essence of the contract and therefore, the first part of Article 54 will not be applicable. Instead, the second part of Article 54 will apply. On the interpretation of Article 54, this Court in Pachanan Dhara v. Monmatha Nath Maity, has held that for determining applicability of the first or the second part, the court will have to see whether any time was fixed for performance of the agreement to sell and if so fixed, whether the suit was filed beyond the prescribed period, unless a case for extension of time or performance was pleaded or established. However, when no time is fixed for performance, the court will have to determine the date on which the plaintiff had notice of refusal on part of the defendant to perform the contract. Therefore, we have to examine Page 29 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined whether K. Sriram or his assignees, K.P. Murali or S.P. Duraisamy, had notice that performance had been refused by A. Valliammai and, if so, from which date."
(emphasis supplied)
24. The conjoint reading of the ratio of aforesaid decisions of the Hon'ble Apex Court, would lead to one conclusion that if there is a date fixed for performance of agreement to sell executed between the parties, the case would fall under Part-I of Article 54 of the Act, 1963 otherwise not. In that eventuality, time (limitation) begin to run from such date fixed for performance and vendee-purchaser will have to file suit for specific performance within three years from such date fixed. Whereas, in other cases, when there is no such date is fixed in agreement to sell executed between the parties, a case would fall in Part-II of Article 54 of the Act, 1963, time begins to run when vendee-purchaser (plaintiffs) have noticed that performance is refused by vendor-seller (defendants).
25. Having discussed above and in view of aforesaid, considering the terms of ATS more particularly condition no.4 of ATS, date was never fixed for performance by the parties to the ATS, thereby, case of the plaintiffs would not fall in Part-I of Article 54 of the Act, 1963 but it would fall under Part-II of Article 54 of the Act, 1963. What was agreed between the parties under ATS was that once title gets Page 30 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined cleared, vendor execute sale deed in favour of vendee but no time limit and or date fixed for its performance once such title gets clear.
26. As plaintiffs have received notice of refusal of performance of ATS by defendants vide their reply dated 05.08.2003, within 3 years from such receipt of refusal of performance by defendants, the plaintiffs could have filed suit for specific performance. Undisputedly, while filing suit in question on 03.04.2006, the plaintiffs had not sought for either specific performance of ATS nor similar other relief. Nevertheless, the same sought for by way of amendment filed only on 26.10.2009 which is ex-facie, apparently and hopelessly time barred as it ought to have been filed within 3 years from such refusal as stated in part-II of Article 54 of the Act, 1963. So, when the amendment sought for by the plaintiffs seeking specific performance of ATS was time barred claim, the trial Court well within its right to reject the impugned amendment application.
27. It is true as held by the Hon'ble Apex Court in the case of Sanjeev Builders (supra) that all amendments should be allowed liberally but in a very same judgment, the Hon'ble Apex Court has clearly observed that if claim made is time barred, such claim by way of amendment cannot be allowed, Page 31 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined which reads as under :-
"71. Our final conclusions may be summed up thus:
71.1 Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. 71.2 All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
71.3 The prayer for amendment is to be allowed 71.3.1 if the amendment is required for effective and proper adjudication of the controversy between the parties, and 71.3.2 to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
71.4 A prayer for amendment is generally required to be allowed unless 71.4.1 By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, 71.4.2 The amendment changes the nature of the suit, 71.4.3 The prayer for amendment is malafide, or Page 32 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined 71.4.4 By the amendment, the other side loses a valid defence.
71.5 In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6 Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
71.7 Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
71.8 Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
71.9 Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
71.10 Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
71.11 Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v.
Page 33 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)"
(emphasis supplied)
28. At this stage, it would also be apt to refer and rely upon the decision of the Hon'ble Apex Court in the case of Revajeetu Builders and Developers Vs. M/s Narayanswamy and sons and others reported in (2009) 10 SCC 84 (paras 63-
64) wherein held thus.
"FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:
63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1)Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2)Whether the application for amendment is bona fide or mala fide;
(3)The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case;
(6) As a general rule, the court should decline amendments if a fresh Page 34 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
(emphasis supplied)
29. Thus, considering the aforesaid peculiar facts and circumstances of the present case, I am in complete agreement with the view taken by the trial Court having arrived to the conclusion that case of plaintiffs would not fall in Part-I but fall in Para-II of Article 54 of the Act, 1963 and thereby, specific performance of ATS sought for by way of amendment having time barred then, it cannot be granted.
30. The next limb of argument of learned advocate Mr. Shelat in relation to another amendment sought for thereby plaintiffs asking for refund of earnest money contending Page 35 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined interalia that such amount would be statutory charged over the suit property as per Section 55 (6) (b) of the Act, 1882. As such there is no cavil that earnest money paid by vendee to vendor would be charged on the immovable property which is subject matter of ATS. As per settled legal position, taken into account Article 62 of the Act, 1963, period to recover such amount is 12 years and not 3 years. The relevant provisions reads thus :
THE TRANSFER OF PROPERTY ACT, 1882 "55. Rights and liabilities of buyer and seller.-- In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold ************ (6) The buyer is entitled-- *********
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him 1*** to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission."
THE LIMITATION ACT, 1963 Article 62 To enforce payment Twelve When the of money secured years money sued by a mortgage or otherwise charged for becomes upon immovable due property.
Page 36 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined
31. It is no longer remain res integra that vendee-buyer can recover earnest money so paid by him while entered into ATS with seller within 12 years when the money sued for becomes due albeit, fulfilling condition/contingency so prescribed under S. 55 (6) (b) of the Act,1882. [See- (I) DELHI DEVELOPMENT AUTHORITY NEW DELHI Versus SKIPPER CONSTRUCTION CO. (PVT) LTD reported in (2000) 10 SCC 130, (II) VIDEOCON PROPERTIES LTD Versus BHALCHANDRA LABORATORIES reported in (2004) 3 SCC 711 & (III) Asgar S Patel (supra)].
32. As observed herein above while recording the submissions of learned advocate Mr. Kapadia appearing for defendants-vendor that he is unable to countenance such position of law. Nonetheless, he would request this Court to see that plaintiff would not allow to charge over other property of vendor than suit property.
33. Thus, in view of aforesaid, the an alternative relief sought for in the amendment by plaintiffs in regards to refund of earnest money with interest could not have been disallowed by Trial Court as its not time barred having filed amendment for recovery of earnest money within 12 years from its becomes due. To that extent, order impugned Page 37 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined having ignored such provisions of law and not granted such part of amendment is erroneous, perverse and contrary to law. At the same time, defendants can also have a right to object against refund of earnest money by filing appropriate amendment in the written statement. The entitlement of plaintiff to get back earnest money with interest will have to be decided by trial Court while adjudicating other issues in accordance with law.
Conclusion
34. In view of the aforesaid observations, discussions and reasons, I am of the view that the case of the plaintiffs would fall under Part-II of Article 54 of the Act, 1963 not fall under Part-I of Article 54 of the Act, 1963 as claimed by plaintiffs.
35. Having so observed hereinabove, the claim made by the plaintiffs by way of the amendment seeking specific performance of ATS having found ex-facie, apparently and hopelessly time barred could not have been allowed which is correctly not allowed by Trial Court. To that extent, no error much less any gross error of law or jurisdictional error committed by Trial Court refusing to amend the plaint.
36. Nonetheless, another part of amendment i.e. Page 38 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined alternative prayer sought for, amendment of pleading i.e. para-6-a of plaint qua refund of earnest money with interest and addition of prayer to be incorporated to that effect as an alternative prayer to be made in para-9-a of the plaint in regards to refund of earnest money i.e. Rs. 12,00,000/ with interest as prayed requires to be accepted which is hereby accepted as its not time barred claim in view of S. 55 (6) (b) of the Act, 1882 read with Article 62 of the Act, 1963. Likewise, valuation of plaint be suitably amended as prayed in last portion of the impugned amendment application. To that extent, having not allowed aforesaid amendment, trial Court has committed serious error in law and acted contrary to provisions of law thereby committed jurisdictional error. Such error requires to be corrected by this Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India, which I do so. [See - Waryam Singhvs vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)]
37. Accordingly, impugned amendment application filed below Ex. 28 in aforesaid suit is hereby partly allowed to the aforesaid extent only whereby alternative pleading & prayer made in the impugned application is hereby accepted being Page 39 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined allowed.
38. In view of the aforesaid conclusion, there is some merit in the present writ application, thus partly allowed to the aforesaid extent. Consequently, impugned order dated 19.01.2011 passed by City Civil Court No.17, Ahmedabad City below Ex. 27 & 28 in Civil Suit (CCC) No. 776 of 2006 is hereby partially disturbed thereby, partly quashed and set aside to aforesaid extend only.
39. As a sequel, the plaintiff is hereby permitted to carry out the amendment in the plaint as aforesaid by serving an advance copy to defendants within period of 2 weeks from date of receipt of the copy of this order. The plaintiffs shall also pay necessary court fees as per amended claim of the plaint within period of 4 weeks after carry out such amendment.
40. The defendants can file additional written statement against amended plaint received from plaintiffs within 2 weeks from date of receipt of such amended plaint.
41. All the issues which arise out of the pleading of the parties including requires any additional issue to be framed by trial Court because of the amendment granted hereby, be Page 40 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025 NEUTRAL CITATION C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025 undefined decided in accordance with law by trial Court albeit, without being influenced by any aforesaid observations so made.
42. Rule is made absolute to the aforesaid extent only. No order as to costs. The interim relief if any granted earlier stands vacated forthwith. The trial Court should proceed with the suit at earliest.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 41 of 41 Uploaded by SALIM(HC01108) on Fri Aug 22 2025 Downloaded on : Sat Aug 23 00:49:36 IST 2025