LexGUNWANTBHAI MULCHAND SHAH AND ORS. versus ANTON ELIS FAREL AND ORS
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A GUNWANTBHAI MULCHAND SHAH AND ORS. v. ANTON ELIS FAREL AND ORS MARCH 6, 2006 B [S.B. SINHA AND P.K. BALASUBRAMANY AN, JJ.] Limitation Act, 1963: Section 27, Articles 54 and I 13. Specific Perfurmance---lliu time fixed for performance of agreement- C Suit for permanent injunction---Bar of limitation --Maintainability of suit-· Predecessor-in-intaest of the plaint!ffe entered into an agreement dated I 8. I 2. I 964 for purchase of the plaint scheduled property-Possession was transferred /0 the predecessor uf the plaintiffs in pursuance of the agreement for sale-An intending purchaser from the plaintiffs issued a public notice on D. 7. I 1.1993 inviting objections, if any, tu the purchase to be made by him- Defendants Nos. I to 3 filed objections on 19. I I. I 99 3- -Plaintijjs filed suit on 4. 4. I 994 for 5pecific performwzce uf the agreement dated I 8. I 2.1994 and for a perpetual injunction restraining the defendants from interfering with their possession of the suit properoi--Defendant ,Vo. I claimed to have sold the property and the same had subsequently been purchased by defendant No. 4 E from the vendee- Defendants raised a plea that the suit was barred by limitation-Both the parties informed the trial court by filing statements in writing in that behalf that they did not want to lead any evidence on this issue-Trial court held that the suit for specific performance of the agreement dated 18.12.1964, filed only on 4.4.1994, more than 29 years after the F agreement, was barred by limitation-High Court affirmed the decision of the trial court-Correctness of-Held: The suit is governed by Article 54 of the Limitation Act--The enquiry should have been, first, whether any time was fixed for performance in agreement for sale- If it was so fixed, to hold that a suit filed beyond three year5 uf the date was barred by limitation unless any case for extension was pleaded and established-But in a case where no time G for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date to see whether the suit was filed within three years thereof-Jn the instant case, the second limb of Art. 54 would apply- -Hence, dismissal of the suit as a whole not justified-The whole matter required reconsideration- -Findings by the H 886 f j - - GUNWANTBHAI MULCHAND SHAH'" ANTON ELIS FAREL 887 > ~ courts below set aside-Matter remitted to trial court for adjudication afresh- A Contract Act, 1872, S. 46-Specific Performance Act, 1963-Code of Civil Procedure, 1908, Order XIV, Rule 2. The predecessor-in-interest of the appellants-plaintiffs entered into an agreement dated 18.12.1964 for purchase of the plaint scheduled property. However, no time for performance was fixed in the agreement B for sale. It was stated that possession was transferred to the predecessor of the plaintiffs in pursuance of the agreement for sale. An intending --. ·4 purchaser from the plaintiffs issued a public notice on 7.11.1993 inviting \ > objections, if any, to the purchase to be made by him. Defendants Nos. 1 to 3 filed objections on 19.11.1993 and, therefore, the plaintiffs filed the C. suit on 4.4.1994 for specific performance of the agreement dated 18.12.1994 and for a perpetual injunction restraining the defendants from interfering with their possession of the suit property. Defendant No. 1 claimed to have sold the property and the same had subsequently been purchased by defendant No. 4 from the vendee. D The defendants raised a plea that the suit was barred by limitation. Both the parties informed the trial court by filing statements in writing in that behalf that they did not want to lead any evidence on this issue. The trial court held that the suit for specific performance of the agreement dated 18.12.1964, filed only on 4.4.1994, more than 29 years after the agreement, was barred by limitation. The High Court upheld the decision E of the trial court as affirmed by the first appellate court. Hence the appeal. On behalf of the appellant-plaintiffs, it was contended that as no time for performance was fixed in the agreement for sale the first limb of Article 54 of the Limitation Act, 1963 was not applicable; and that the second F limb of Article 54 was applicable as the suit was filed within six months of the knowledge of refusal to perform and, therefore, the suit was filed within limitation. Allowing
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