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Nathulal Vs Phoolchand [AIR 1970 SC 546].
● Turning to Limitation, the point on which the trial Court had non-
suited the plaintiff:
➢ First, when in October, 1998 (Ref: Ext.A-7 suit notice) wherein the plaintiff had indicated for the first time his knowledge about the Housing Board's demand for additional payment made on 16-09-1995, the Order of interim injunction passed in O.S.549/1989 (Ext.B-2) was still in force. Therefore, there is no way that the plaintiff could have maintained a suit. Necessarily, the terminus quo for reckoning limitation cannot be reckoned from 16-09-1995. http://www.judis.nic.in21/59 ➢ Secondly, the denial of the defendants to perform their part of the contract Vide Ext.A-8 reply notice dated 22-10-1998 also does not have any consequence in law, since at that point of time, the title to the site has not been vested in the defendants. There cannot be any in presenti breach of an executory contract which Ext.A-1 is. In other words, what was attempted through Ext.A-8 reply notice was a premature- repudiation of the contract, and it would not affect the limitation for instituting the suit. Reliance was placed on the ratio in V.K.Kumaraswami Chettiar & Others Vs P.A.S.V.Karuppaswami Mooppanar [AIR 1953 Madras 380], Bhagwan Singh Vs Teja Singh alias Teja Ram [ AIR 1995 P & H 64], and time for instituting the suit will start only when there is a refusal to perform after the due time for performance has arisen. Reliance was to P. Cecili Vs Devathal & Others [Manu/TN/3514/2016 = 2016 SCC Online Mad 10448]. Their deliberate tactics to defeat the contractual right of the plaintiff has substantially cost him http://www.judis.nic.in22/59 monetarily. In terms of ExtA-1, after adjusting the advance amount of Rs.1.0 lakh, the plaintiff is strictly bound to pay a balance sale consideration of Rs.4.40 lakhs (since he had given up Rs.1.0 earmarked for vacating Kalidas by Radhakrishnan) plus the additional amount payable to the Housing Board. In other words, plaintiff was liable to pay only (Rs. 4,40,000 + Rs. 2,09,345) Rs.6,49,345/- whereas he has now deposited Rs.11.40 lakhs in the Court. This is in addition to Rs.1.0 lakh initially paid as advance. ● In this suit, the defendants have all along been the party at fault. They invented every possible technique to defeat the performance of their contractual obligations. Even in this suit, they have pleaded that the suit property did not belong to Radhakrishnan with a self negating inconsistent plea that Radhakrishnan might have executed Ext.A-1 to secure a loan that he might have obtained from Pongiannan. And, during trial they gave up the former, and failed to establish the probability of the latter. In a suit for specific performance, the conduct of the defendants is as much relevant as that of the plaintiff, and any attempt of the defendants to defeat the performance of the contract http://www.judis.nic.in23/59 need to be factored while exercising the judicial discretion to grant a relief in equity. Reliance was placed on the ratio in Silvey & Others Vs Arun Varghese & another [(2008)11 SCC 45], Zarina Siddiqui Vs A.Ramalingam alias R.Amarnathan [(2015) 1 SCC 705], and A.N.Arunachalam Vs. T.Sivaparakasam & another [2011(1) MWN (Civil) 819].

(b) Is the suit barred by limitation:

18. This depends on the nature of the contractual obligations that Ext.A-1 has created. According to the plaintiff, Ext.A-1 is an executory contract with reciprocal contractual obligations to be performed in a certain sequence. And hence, the purported repudiation of contract in Ext.A-8 reply notice is not a repudiation that law would countenance, and hence terminus quo for reckoning limitation cannot start from 22-10-1998, the date on which Ext.A-8 was issued. The defendants assume a position contrary to this.

A repudiation before the due date is in the nature of an offer by a party to a concluded contract to vary the terms thereof. If accepted there comes into existence a new contract in supersession of the old one; if not accepted, the original contract continues to remain in force with the rights and obligations of either party unaffected. By its very nature this situation is possible only when the contract is executory and the time for performance has not arrived. The principle has also been applied to continuing contracts performance under which is in progress and has not been completed; the most familiar example being where the goods are to be delivered in instalments spread over several months. In such a case when a party refuses to deliver the future instalments, the other party has the option either to accept the repudiation and put an end to the contract with reference to the future instalments and claim http://www.judis.nic.in44/59 the damages or keep it alive and claim performance when the instalments actually fall due. But where the time for performance has arrived and one party has actually offered to perform his part, then the other party has to perform his portion of the contract; in default the contract is broken and comes to an end. It is a well recognised juristic concept that when a contract is broken it is discharged giving rise to a new obligation which the law imposes on the party in default to pay damages. “A breach or default in performance discharges a contract wholly or in part in the sense that it converts into a right of action for damages or pecuniary compensation.” (Vide Leake on Contracts, page 671, 8th Edn).

“Mr.Anson enumerates five modes by which a contract may be discharged and one of them is breach. “It may be broken; upon this a new obligation connects the parties, a right of action possessed by the one against the other” ....... and “if one of two parties to a contract breaks the obligation which the contract imposes, a new obligation will in every case arise, a right of action conferred upon the party injured by the breach.” (Vide Anson's Law of Contracts, 8th Edn. p.304 and P.318). Therefore, the principle that it is open to one party to keep the contract alive can have application only when the contract is executory or where there is still something to be performed under the contract. It can have no application where time for performance has arrived and there has been a breach. When a http://www.judis.nic.in45/59 contract has been broken it is dead and there is nothing which could thereafter be kept alive. Even if the parties subsequently come to an agreement in respect of the same subject-matter, it is in law a new contract. Thus there is a fundamental difference between a refusal to perform a contract before performance has become due and a failure to perform it after it has become due.” (emphasis supplied) 26.2 As candidly exposited in V.K.Kumaraswami Chettiar case, every contract possesses elements that might frustrate its performance. Where performance of contract is frustrated, it is a situation where the contract becomes incapable of being performed and that leaves not any opportunity to repudiate. The law as laid down only informs that any attempt to repudiate the contract before the time for its performance has arisen cannot be unilaterally imposed by the repudiating party on the other party to the contract. For similar views, the ratio in P.Cecil's case [MANU/TN/3514/2016] and Bhawan Singh Vs Teja Singh alias Teja Ram [AIR 1995 P & H 64] where the Courts have held that for the purposes of Article 54 of the Limitation Act, time starts running only after the cause of action has arisen, and that the cause of action cannot arise unless the defendant is in a position to perform his part of the contract. http://www.judis.nic.in46/59 26.3 To sum up this aspect, the intent to repudiate or refusal to perform Ext.A-1 by the defendants 1 to 4 cannot be countenanced before they are in a position to perform their part of the contract. Contextually, it must be stated that the purported repudiation of contract Vide Ext.A-8 reply notice is a pre- mature repudiation of a future contract, and the plaintiff can ignore it.