Friday 9 September 2016

When suit for specific performance of contract will not be barred by limitation?

Perusal of the recitals of the agreement shows that no time is

fixed for performance of contract.  It however does not mean that
the agreement stipulated indefinite   period for performance of
contract.   Section 46 of the Indian Contract Act, 1872 lays down
that where, by the contract, a promiser is to perform his promise
without application by the promisee and no time for performance
is   specified,   the   engagement   must   be   performed   within   a
reasonable   time.         Explanation   thereto   lays   down   that   the
question “ what is a reasonable time ”, is, in each particular case,
a question of fact.   The question, therefore, is whether in the facts
and circumstances of the present case, it can be said that the
plaintiff demanded specific performance within a reasonable time
or not.  
18. In the case of  Chand Rani (Smt) (dead) by L.Rs.
Vs.   Kamal Rani (Smt) (dead) by L.Rs., (1993) 1 Supreme
Court Cases 519, the Constitution Bench held in paragraph 19 as
under, 
“ It is a well­ accepted principle that in
the case of sale of immovable property, time
is   never   regarded   as   the   essence   of   the
contract.     In fact, there is a presumption
against   time   being   the   essence   of   the
contract.   This principle is not in any way
different from that obtainable in England.

Under the law of equity which governs the
rights of the parties in the case of specific
performance of contract to sell real estate,
law   looks   not   at   the   letter   but   at   the
substance of the agreement.     It has to be
ascertained whether under the terms of the
contract the parties named a specific time
within which completion was to take place,
really and in substance it was intended that
it should be completed within a reasonable
time.   An intention to make time the essence
of   the   contract   must   be   expressed   in
unequivocal language ”. 
19. The   Apex   Court   thereafter   considered   earlier
decisions,   as   also   Section   55   of   the   Contract   Act.       After
considering the Judgments, it was observed in paragraph 25 thus, 
“ From an analysis of the above caselaw,
it is clear that in the case of sale of
immovable   property,   there   is   no
presumption as to time being the essence of
the contract.   Even if it is not of the essence
of the contract, the Court may infer that it is
to be performed in a reasonable time if the
conditions are evidence : 
1. From     the   express   terms   of   the  
contract ;

2. from the nature of the property ; and 
3. from the surrounding circumstances,  
for example : the object of making the
contract ” .
20. In the present case, admittedly, the agreement does
not stipulate any specific period.   The parties to the agreement
did   not   issue   any   notice   to   make   the   time   as   an   essence   of
contract.    Having regard to the settled position in law that in a
suit for specific performance, generally time  is not essence of
contract,   the   courts   below   after   appreciating   the   evidence   on
record, have concurrently held that plaintiff has made out a case
for grant of specific performance.   Section 3 of the Limitation Act
undoubtedly lays down that even though limitation has not been
set up, if   the  suit  is  instituted,  after  the  prescribed  period  of
limitation, the court shall dismiss the suit.     In the first place,
there is no refusal on the part of the defendant No. 1 to perform
his   part   of   contract   by   issuing   notice   as   contemplated   under
Article 54 of the Limitation Act.     No material is produced on
record to show that defendant No. 1 refused to perform his part of
contract.   Secondly, no period of limitation is prescribed in the
agreement of sale.   Thirdly and more importantly, limitation, in
the facts and circumstances of the case, is not a pure question of

law   but   is   a   mixed   question   of   law   and   fact.       Admittedly,
defendant No. 2 did not take up a plea that suit is barred by
limitation.    As noted earlier, explanation to Section 46 lays down
that the question what is a reasonable time is a question of fact.
The Courts below have concurrently decreed the suit.  
21. Ms. Kulkarni relied upon decision of the Apex Court
in the case of Motilal Jain (supra).   In the case of Motilal (supra),
the Apex Court has held that aspects of delay are relevant in the
case of specific performance of contract for sale of immovable
property, namely  (i) Delay running beyond the period prescribed
under the Limitation Act; (ii)   Delay in cases where though the
suits are within the period of limitation, yet (a) due to delay the
third parties have acquired rights in the subject matter of suit; (b)
in the facts and circumstances of the case, delay may give rise to
plea   of   waiver   or   otherwise   it   will   be   inequitable   to   grant   a
discretionary   relief.   
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY   
                                BENCH AT AURANGABAD
      
 SECOND APPEAL NO. 282 OF 1992
Venunath S/o Sambha More

Vs
Limbabai D/o Abaji Jamdar                      
    CORAM  :   R.G.KETKAR, J.
  DATED :   17th NOVEMBER, 2014
                        .............................
Citation: 2016(4) ALLMR 267

1.   Heard   Ms.   M.A.Kulkarni,   learned   counsel   for   the
appellants   and   Mr.   M.L.Dharashive,   learned   counsel   for
respondent No. 2 (i) to 2 (v) at length.
2. By   this   Appeal,   u/s   100   of   the   Code   of   Civil
Procedure, 1908 (for short, ' C.P.C.' ), original defendant No. 2
has   challenged   the   Judgment   and   decree   dated   30/06/1980
passed by the learned Civil Judge, Senior Division, Ausa in R.C.S.
No. 62/1980, as also the Judgment and decree dated 11/02/1992
passed by the learned Additional District Judge, Latur in R.C.A.
No. 96 of 1986.   By these orders,   the Courts below decreed the
Suit instituted by Limbabai  D/o Abaji Jamdar through her legal
representative   for   specific   performance   of   contract   dated
12/08/1973.   The Courts below directed the legal representative
of defendant No. 1 Niranjan and defendant No.  2   Venunath
Sambha More to jointly execute the registered sale deed in favour
of   the   plaintiff   after   accepting   the   consideration   of  ` 500/­
(Rupees Five Hundred only ) in respect of house bearing 1166
(old), which is renumbered as 1318/1 (new) admeasuring EastWest
87 feet from southern side and 57 feet from northern side

and 32 ½ feet North­South including 7 khan Dhaba bounded by
Govt. road from East, by the land and house of Dwarkadas from
West, by the house of Sambha More from South and the open
house No. 1166/1 from northern side at Ausa. (for short, ' suit
house ' ).     The Courts below also declared that the sale deed
dated   16/07/1977   executed   by   defendant   No.   1   Niranjan   in
favour of defendant No. 2 Venunath  Sambha More is not binding
on the plaintiff.   Defendant No. 2 is permanently restrained from
causing any interference or obstruction in the peaceful possession
of the plaintiff over suit house.     The parties shall hereinafter
referred to as per their status in the trial Court.  The relevant and
material facts giving rise to the present Second Appeal are as
follows.   
3. The plaintiff instituted Suit for specific performance
of   contract   dated   12/08/1973   and   for   perpetual   injunction
interalia  contending   that   defendant   No.   1   Niranjan   was   the
exclusive   owner   of   the   suit   house.     By   an   agreement   dated
12/08/1973 (Exh. 56), defendant No. 1 agreed to sell his house
to   Limbabai,   the   original   Plaintiff   (since   deceased),   for   total
consideration of ` 1500/­ (Rupees One Thousand  Five  Hundred
only   ).       Defendant   No.   1   accepted  ` 1000/­   (Rupees   One

Thousand only ) towards earnest money.   Defendant No. 1 also
executed   a   receipt   at   Exh.   57   and   put   plaintiff   Limbabai   in
possession of the suit house.     It is further contended that the
plaintiff had applied to defendant No. 1 to specifically perform
his part of contract, but defendant No. 1 had not done so.   The
plaintiff further asserted that he was and is still ready and willing
to perform his part of contract.   On 16/07/1977,  defendant No.
2 purchased the suit house despite having notice that defendant
No. 1 had already agreed to sell suit house to the plaintiff and
handed over possession.   The cause of action accrued to plaintiff
on   16/07/1977.       The   plaintiff,   therefore,   instituted   Suit   for
specific   performance   of   agreement   of   the   suit   house   and   for
perpetual   injunction   restraining   defendants   No.   1   and   2   from
causing any interference or obstruction in the peaceful possession
of the plaintiff's possession over the suit house.  
4. Defendant No. 2 resisted   the Suit by filing Written
Statement   at   Exh.   39   and   denied   all   the   adverse   allegations
against   him.       It   was   contended   that   the   document   dated
12/08/1973 is a false and forged document and the same is not
admitted by him.     It was further denied that the plaintiff had
purchased the suit property from defendant No. 1 and also taken

possession thereof.   Defendant No. 2 did not admit execution of
the agreement and receipt.   It was contended that  defendant No.
2 had purchased the suit property on 16/07/1977 by executing
registered   sale   deed.       Defendant   No.   1   did   not   file   Written
Statement.  
5. During the pendency of the Suit, defendant No. 1
expired.   He was issueless and he died leaving behind Kamlakar,
as he was the only legal representative.     He was brought on
record   by   the   plaintiff.       The   Suit   proceeded   only   against
defendant No. 2 as the contesting party.  
6. On   the   basis   of   the   pleadings   of   the   parties,   the
learned trial Judge framed necessary Issues.   The parties led oral
as well as documentary evidence in support of their case.   After
considering the evidence on record, the learned trial Judge held
that plaintiff proved that defendant No. 1 agreed to sell suit house
to the  plaintiff  by agreement of sale dated 12/08/1973.   The
plaintiff also established that defendant No. 1 executed agreement
of sale in respect of the suit premises on 12/08/1973.  It was also
held that defendant No. 1 had received earnest amount amount of
` 1000/­ (Rupees One Thousand only )  from the plaintiff and

accordingly executed its receipt.     The learned trial Judge held
that the plaintiff proved her  possession over the suit house on the
basis of the agreement of sale.   The learned trial Judge also held
that the plaintiff was and is ready and willing to perform her part
of   contract.       The   learned   trial   Judge   further   held   that   the
defendant No. 2 is not a bonafide purchaser for value without
notice.   Defendant   No.   2   had   purchased   the   suit   house   from
defendant No. 1 though he was aware of the transaction between
plaintiff   and   defendant   No.   1   and   that   in   pursuance   thereof,
plaintiff was put in possession of the suit house.   The learned trial
Judge further declared that the sale deed dated 16/07/1977 is
not binding on the plaintiff.  
7. Aggrieved by that decision, defendant No. 2 preferred
Appeal before the District Court.   The The learned District Judge
dismissed   the   appeal   on   11/02/1992.     It   is   against   these
decisions, defendant No. 2 has preferred this Appeal.  
8. The Appeal was admitted on 30/07/1992 as grounds
No.   (III)   (IX)   and   (XII)   raise   substantial   questions   of   law.
Grounds No. (III) (IX) and (XII) read as under : 

“ (III) The   learned   Judge   misconstrued   the
agreement of sale at Exhibit 56 dated 12th
August,   1976   and   arrived   at   a   wrong
conclusion. 
(IX)  The learned Judge failed to consider the
fact that Section 16 of the Specific Relief Act
bars the relief of specific performance of a
contract   who   fails   to   prove   that   he   has
performed   or   has   always   been   ready   and
willing to perform the essential terms of the
contract which are to be performed by him
and in view of this provision as the plaintiff
has failed to prove that as per the agreement
she approached defendant No. 2 with amount
of   consideration   remaining   and   asked   the
defendant No. 2 to execute the sale deed and
in absence of such readiness, the Suit can not
be decreed in favour of the plaintiff.
(XII) The  learned  Judge  failed  to  consider
the   fact   that   under   Article   54   of   the
Limitation Act, Suit of specific performance is
to be filed within three years from the date of
refusal to perform the contract and as such
suit of the plaintiff is failed beyond the period
of limitation.  
9. In support of this Appeal, Ms. Kulkarni submitted that

the Courts below have not properly construed agreement of sale
dated   12/08/1973   at   Exh.   56,   thereby   arrived   at   erroneous
conclusion.       She   submitted   that   though   no   date   is   fixed   for
performance of contract, nonetheless, it can not be said that there
was indefinite period during which plaintiff could institute Suit
for specific performance.     Though time is not the essence of
contract, the agreement imposed duty on the plaintiff to call upon
the defendant No. 1 to execute the sale deed.     She invited my
attention to the relevant recitals of the agreement in that regard.
The agreement recited that the total consideration for selling the
suit property is ` 15,00/­ (Rupees One Thousand  Five  Hundred
only ) and that the defendant No. 1 received ` 1,000/­ (Rupees
One Thousand   only ) towards earnest amount.   The remaining
amount of ` 500/­ (Rupees Five  Hundred  only ) is to be paid at
the  time  of execution  of the  sale  deed.   The plaintiff  was  to
arrange remaining amount of  ` 500/­ (Rupees Five   Hundred
only )  and was to call upon the defendant No. 1 for executing
sale deed in his favour.   Ms. Kulkarni submitted that in paragraph
5 of the plaint, it is merely asserted that he had applied to the
defendant to specifically perform the agreement on his part, but
the defendant No. 1 has not done so.   However, no details are
furnished in paragraph 5 as regards the date and time when he

called upon the defendant No. 1 to perform his part of contract.
That apart,  the plaintiff did not issue any notice calling upon the
defendant   No.   1   to   execute   the   sale   deed     and   straight   way
instituted   Suit   for   specific   performance   of   contract.       She
submitted that since the plaintiff did not issue any notice calling
upon defendant No. 1 to execute the sale deed before instituting
the   Suit,   the   plaintiff   can   not   maintain   the   Suit   for   specific
performance of contract.  
10.  Ms. Kulkarni further submitted that the plaintiff was
and is  not ready  and  willing to  perform  his  part of  contract.
Paragraph 5 of the plaint though confirms form No. 47 prescribed
under C.P.C., no details are given therein.  She further submitted
that no cause of action was accrued to the plaintiff for instituting
the   Suit.     In   that   regard,   she   invited   my   attention     to   the
assertions    made  in   paragraph   8  of   the   plaint.      She   further
submitted that the plaintiff has neither pleaded   nor proved his
continuous readyness and willingness and, therefore, the Courts
below committed error in decreeing the Suit.  She submitted that
after the agreement of sale dated 12/08/1973, plaintiff did not do
any overt act and kept silence till institution of the Suit.  In other
words, plaintiff had abandoned/waived his right to claim specific

performance of contract.   This is more so when defendant No. 1
had   sold   the   suit   property   in   favour   of   defendant   No.   2   on
16/07/1977.   This is also not a fit case for exercising discretion in
favour of the plaintiff while granting specific performance.     In
that regard, she relied upon Section 20 of the Specific Relief Act,
1963.   She also invited my attention to the evidence of Kamlakar
at Exh. 52 and submitted that perusal of his testimony also shows
that plaintiff did not establish readyness and willingness.   Though
in paragraph 5 of the plaint, it is contended that plaintiff had
applied to defendant No. 1 for specific performance of contract,
no such application is produced on record.   What is produced on
record   are   the   applications   dated   21/09/1978   (Exh.   60)   and
25/04/1979 (Exh.  61).      These  applications  are made by the
original plaintiff to the Chief Officer, Municipal Council, Ausa.   In
other words, no application as contemplated by agreement of sale
dated 12/08/1973 was ever made by the plaintiff.  
11. Ms.   Kulkarni   further   submitted   that   even   though
defendant   No.   2   did   not   set   up   plea   of   limitation   in   Written
Statement, having regard to Section 3 of the Limitation Act, the
Court is obliged to dismiss the Suit even if limitation has not been
set up as a defence. 

12. Ms.   Kulkarni   invited   my   attention   to   the   findings
recorded by the Courts below and in particular paragraph 7 of the
trial Court's Judgment.       The learned trial Court observed that
plaintiff asserted in the plaint that he was ready and willing to
perform his part of contract, but it was defendant No. 1 who
refused.    She submitted that the said finding is contrary to the
evidence on record and is not supported by any evidence.   On the
other   hand,   the   plaintiff   did   not   produce   any   application   to
substantiate his contentions in paragraph 5 that he had applied to
defendant No. 1 for performing his part of contract.   She further
submitted that the learned District Judge while formulating points
for determination, did not frame point as regards readyness and
willingness of the plaintiff.   
13. In   support   of   her   submissions,   she   relied   upon
following decisions :
( i) Ram Awadh (dead) by L.Rs. and
others  Vs.  Achhaibar Dubey and another, AIR
2000   Supreme   Court   860   to   contend   that
where the plaintiff who fails to aver and to
prove readiness and willingness to perform his
part   of   agreement,   relief   of   specific
performance may not be granted.  

(ii) Motilal  Jain    Vs.   Smt. Ramdasi
Devi   and   others,   AIR   2000   Supreme   Court
2408 (1) to contend that delay in filing the
Suit for specific performance is relevant factor.
The aspects of delay are   relevant in case of
specific   performance   of   contract   for   sale   of
immovable     property   :   (i)     Delay   running
beyond   the   period   prescribed   under   the
Limitation   Act   :   (ii)   Delay   in   cases   where
though   the   suits   are   within   the   period   of
limitation,   yet   (a)   due   to   delay   the   third
parties   have   acquired   rights   in   the   subjectmatter
  of   suit;   (b)   in   the   facts   and
circumstances of the case, delay may give rise
to   plea   of   waiver   or   otherwise   it   will   be
inequitable to grant a discretionary relief.  
(iii) Pushparani   S.Sundaram   and
others     Vs.     Pauline   Manomani   James
(Deceased) and others, 2001 AIR SCW   2347
to contend that since no notice was issued by
the   plaintiff   to   defendant   No.   1   before
instituting the Suit, it ought to be held that the
plaintiff   did   not   establish   his   readyness   and
willingness.   Mere plea about readyness and
willingness   without   proof   thereof   is   not
sufficient   for   granting   relief   of   specific
performance.  

14. Lastly, she submitted that the Suit is even otherwise
barred by limitation under Article 54 of the Limitation Act, 1963,
as the agreement of sale was executed on 12/08/1973 and the
Suit is instituted on 05/02/1980.     For all these reasons, she
submitted that the impugned orders are liable to be quashed and
set aside, thereby dismissing the Suit instituted by the plaintiff for
specific performance of contract.  
15. On the other hand, Mr. M.L.Dharashive supported the
impugned orders.   He submitted that P.W. 1 Kamlakar deposed
that original plaintiff Limbabai was ready and willing to perform
her part of contract.   Even P.W. 1, who was brought on record
after the death of original plaintiff, deposed that he was and is
ready and willing to perform his part of contract, viz. payment of
balance consideration of ` 500/­ (Rupees Five  Hundred  only ).
In other words, both Limbabai and Kamlakar were and are ready
and   willing   to   perform   their   part   of   contract.       He   further
submitted that the courts below after considering the evidence on
record have concurrently decreed the suit by holding that plaintiff
was and is ready and willing to perform his part of contract.
Plaintiff has pleaded and proved his readiness and willingness.
He submitted that  defendant No. 2 is not a bonafide purchaser

for value without  notice.     Defendant No. 2 was aware that in
pursuance   of   agreement   of   sale,   original   plaintiff   was   put   in
possession.     Despite that, defendant No. 2 purchased the suit
property from defendant No. 1.     He submitted that the courts
below   after   appreciating   the   evidence   on   record,   have
concurrently held  that  the  defendant  No. 2  is not  a bonafide
purchaser.   The relief of specific performance being an equitable
relief,   the   courts   below   have   properly   exercised   discretion   in
favour of the plaintiff while granting the relief.   In view of the
conduct of the defendant No. 2, no case is made out for invoking
powers of this Court u/s 100 of C.P.C.  
16. I have considered rival submissions of the learned
counsel for the parties.     I have also perused the material on
record as also original record.  
17. As noted earlier, the Appeal was admitted on grounds
No. (iii), (ix) and (xii) as they raise substantial questions of law.
Ms. Kulkarni submitted that the courts below did not construe the
agreement   of   sale   dated   12/08/1973   properly   and   arrived   at
wrong conclusion.     It is not possible to accept this submission.
Perusal of the recitals of the agreement shows that no time is

fixed for performance of contract.  It however does not mean that
the agreement stipulated indefinite   period for performance of
contract.   Section 46 of the Indian Contract Act, 1872 lays down
that where, by the contract, a promiser is to perform his promise
without application by the promisee and no time for performance
is   specified,   the   engagement   must   be   performed   within   a
reasonable   time.         Explanation   thereto   lays   down   that   the
question “ what is a reasonable time ”, is, in each particular case,
a question of fact.   The question, therefore, is whether in the facts
and circumstances of the present case, it can be said that the
plaintiff demanded specific performance within a reasonable time
or not.  
18. In the case of  Chand Rani (Smt) (dead) by L.Rs.
Vs.   Kamal Rani (Smt) (dead) by L.Rs., (1993) 1 Supreme
Court Cases 519, the Constitution Bench held in paragraph 19 as
under, 
“ It is a well­accepted principle that in
the case of sale of immovable property, time
is   never   regarded   as   the   essence   of   the
contract.     In fact, there is a presumption
against   time   being   the   essence   of   the
contract.   This principle is not in any way
different from that obtainable in England.

Under the law of equity which governs the
rights of the parties in the case of specific
performance of contract to sell real estate,
law   looks   not   at   the   letter   but   at   the
substance of the agreement.     It has to be
ascertained whether under the terms of the
contract the parties named a specific time
within which completion was to take place,
really and in substance it was intended that
it should be completed within a reasonable
time.   An intention to make time the essence
of   the   contract   must   be   expressed   in
unequivocal language ”. 
19. The   Apex   Court   thereafter   considered   earlier
decisions,   as   also   Section   55   of   the   Contract   Act.       After
considering the Judgments, it was observed in paragraph 25 thus, 
“ From an analysis of the above caselaw,
it is clear that in the case of sale of
immovable   property,   there   is   no
presumption as to time being the essence of
the contract.   Even if it is not of the essence
of the contract, the Court may infer that it is
to be performed in a reasonable time if the
conditions are evidence : 
1. From     the   express   terms   of   the  
contract ;

2. from the nature of the property ; and 
3. from the surrounding circumstances,  
for example : the object of making the
contract ” .
20. In the present case, admittedly, the agreement does
not stipulate any specific period.   The parties to the agreement
did   not   issue   any   notice   to   make   the   time   as   an   essence   of
contract.    Having regard to the settled position in law that in a
suit for specific performance, generally time  is not essence of
contract,   the   courts   below   after   appreciating   the   evidence   on
record, have concurrently held that plaintiff has made out a case
for grant of specific performance.   Section 3 of the Limitation Act
undoubtedly lays down that even though limitation has not been
set up, if   the  suit  is  instituted,  after  the  prescribed  period  of
limitation, the court shall dismiss the suit.     In the first place,
there is no refusal on the part of the defendant No. 1 to perform
his   part   of   contract   by   issuing   notice   as   contemplated   under
Article 54 of the Limitation Act.     No material is produced on
record to show that defendant No. 1 refused to perform his part of
contract.   Secondly, no period of limitation is prescribed in the
agreement of sale.   Thirdly and more importantly, limitation, in
the facts and circumstances of the case, is not a pure question of

law   but   is   a   mixed   question   of   law   and   fact.       Admittedly,
defendant No. 2 did not take up a plea that suit is barred by
limitation.    As noted earlier, explanation to Section 46 lays down
that the question what is a reasonable time is a question of fact.
The Courts below have concurrently decreed the suit.  
21. Ms. Kulkarni relied upon decision of the Apex Court
in the case of Motilal Jain (supra).   In the case of Motilal (supra),
the Apex Court has held that aspects of delay are relevant in the
case of specific performance of contract for sale of immovable
property, namely  (i) Delay running beyond the period prescribed
under the Limitation Act; (ii)   Delay in cases where though the
suits are within the period of limitation, yet (a) due to delay the
third parties have acquired rights in the subject matter of suit; (b)
in the facts and circumstances of the case, delay may give rise to
plea   of   waiver   or   otherwise   it   will   be   inequitable   to   grant   a
discretionary   relief.       In   that   case,   plaintiff   had   entered   into
agreement for consideration of  ` 25,000/­ (Rupees Twenty Five
Thousand  only ), out of which he had paid ` 17,000/­ (Rupees
Seventeen     Thousand     only   )   at   the   time   of   execution   of
agreement of sale.     The balance  of  ` 8,000/­  (Rupees Eight
Thousand  only ) was to be paid within five months at the time of

execution of registered sale deed in favour of the plaintiff.   The
plaintiff   sent   notice   on   15/03/1978   and   thereafter   on
04/04/1978 and finally on 26/11/1978.     The plaintiff thereafter
instituted Suit in the year 1979.   The learned trial Judge decreed
the Suit.    The High Court confirmed the finding of the trial court
that   defendant   executed   agreement   of   sale.       High   Court,
however, noted that the suit was filed after two years   of the
accrual of the cause of action and and after about one year of last
notice issued on 26/11/1978 and from the averment in the plaint,
the readiness and willingness could not be   inferred.     It was
further held that there was no evidence to prove the readiness
and   willingness.       The   High   Court   accordingly   set   aside   the
Judgment   of   the   trial   Court   with   regard   to   relief   of   specific
performance, but granted decree for compensation.     The Apex
Court observed in paragraph 6 that the last notice was issued on
26/11/1978 and from that date, the Suit was filed only after 9
months and not after more than one year.   Therefore, on the facts
the ground of delay can not be invoked to deny the relief to the
plaintiff.       As   noted   earlier,   the   courts   below   have   held   that
plaintiff has made out case for grant of specific relief.   I have also
held that suit can not be said to be barred by limitation.   In view
thereof, the reliance placed on Motilal Jain's case (supra) does not

advance the case of the plaintiff.  
22. Ms. Kulkarni submitted that there is discrepancy as
regards mentioning the number of the property in the agreement
of sale and in the plaint.     The courts below did not find any
discrepancy as regards  number in mentioning suit property in the
agreement of sale and the plaint.   I do not see any good and valid
reason for taking a different view.  
23. The submission advanced by Ms. Kulkarni that the
courts   below   misconstrued   the   agreement   of   sale   dated
12/08/1973   at   Exh.   56   and   arrived   at   wrong   conclusion   is
unacceptable.   For the reasons already indicated, I do not see that
the courts below have committed any error in that regard.  
24. Ms. Kulkarni submitted that the courts below have
committed any error in granting relief of specific performance
when the plaintiff had neither pleaded nor proved his readiness
and willingness.     In paragraph 5, plaintiff had made general
averments in conformity with form No. 47 of C.P.C..  However, no
details are given.   In fact, plaintiff never made any application to
defendant No. 1 calling upon him to execute the sale deed.  The

applications  at  Exhs.   60  and  61  were  made   to  the  Municipal
Council and not to the defendant No. 1.   Thus, since the plaintiff
did not make any application to defendant No. 1 or did not issue
any notice  to defendant No. 1 before instituting the  Suit, the
courts also ought to have dismissed the Suit on this ground alone.
I do not find any merit in this submission.   
25.  Perusal of paragraph 5 of the plaint with form No.
47 of C.P.C. shows that plaintiff, in tune with form No. 47, has
made assertions in paragraph 5.    The submission that no details
are given by the plaintiff in paragraph 5 is also not acceptable as
it is a matter of evidence.   The courts below after appreciating
the   evidence   of   P.W.   1   Kamlakar,   have   recorded   finding   that
Limbabai as also P.W. 1 both were and are ready and willing to
perform their part of contract.    It is also material to note that
total consideration was fixed as ` 1500/­ (Rupees One Thousand
Five   Hundred   only ), out of that, plaintiff had paid  ` 1000/­
(Rupees One Thousand only ) towards earnest amount and the
remaining amount was ` 500/­ (Rupees Five  Hundred  only ) to
be paid at the time of execution of the sale deed.  
26. Ms.   Kulkarni   further   submitted   that   no   cause   of

action is pleaded in the plaint.   Perusal of paragraphs 7 and 8 of
the plaint clearly shows that plaintiff has pleaded necessary facts
showing the accrual of cause of action.  
27. Ms.   Kulkarni   further   submitted   that,   in   any   case,
after execution of agreement of sale on 12/08/1973,  no overt act
was done by the plaintiff.   The silence of the plaintiff amounts to
waiver of his claim towards specific performance.     As I have
already indicated that Suit is neither barred by law of limitation
nor it can be said that it was filed after expiry of reasonable time,
I do not find any merit in the submission of Ms. Kulkarni.   This is
more so when in pursuance of the agreement of sale, the plaintiff
was already put in possession of the suit property.   
28. Ms. Kulkarni relied upon the decision referred in the
case   of     Ram   Awadh   (supra).     The   Apex   Court   observed   in
paragraph 6 that the obligation imposed by Section 16 is upon the
Court not to grant specific performance to a plaintiff who has not
met the requirements of Clauses (a), (b) and ( c) thereof.     A
Court may not, therefore, grant to a plaintiff who has failed to
aver and to prove that he has performed or has always been ready
and willing to perform his part of the agreement, the specific

performance   whereof   he   seeks.       In   the   present   case,   I   have
already   held   that   the   plaintiff   has   pleaded   and   proved   his
continuous   readiness   and   willingness.       In   view   thereof   the
decision in the case of Ram Awadh (supra) does not advance the
case of defendant No. 1.   
29. Ms. Kulkarni submitted that plaintiff did not make
any application to the defendant No. 1.  She also did not issue any
notice to the defendant No. 1 calling upon him to perform his part
of contract.   The plaintiff is, therefore, not ready and willing to
perform his part of contract.     She relied upon the decision of
Pushparani (supra).   In that case, it was observed that except for
a mere plea about readiness and willingness, there was no other
evidence on record to prove the same.     In the  present case,
plaintiff has not only pleaded but also proved his readiness and
willingness.   The plaintiff instituted the Suit that itself constitutes
the notice to the defendant No. 1.  
30. That   finally   takes   me   to   the   question   whether
defendant No. 2 can be said to be the bonafide purchaser.   The
courts below have held that in pursuance of the agreement of
sale, original plaintiff was put in possession of the suit property.

Defendant   No.   2   was   aware   of   this   fact   and   despite   that   he
purchased the suit house.   The Courts below, therefore, held that
defendant No. 2 can not be said to be a bonafide purchaser for
value without notice.   The said finding is purely finding of fact
based upon appreciation of evidence on record.   I, therefore, do
not find that the courts below committed any error in decreeing
the Suit.  
31. In the result, Appeal fails and the same is dismissed.
It has to be held that the suit is not barred by limitation as there
was no refusal on the part of the defendant No. 1 to perform his
part   of   contract.       The   suit   instituted   therefore   is   not   by
limitation.       The   substantial   questions   of   law   as   framed   are
answered accordingly.  
32. In view of dismissal of the Appeal, C.A. Nos. 2234 of
1992 and 2235 of 1992 do not survive and the same are also
disposed of. 
33. At this stage, Ms. Kulkarnni states that interim relief,
that was operating pending the Appeal, may be continued for a
period   of   eight   weeks.   She  states   that  by   the   interim   order,

decree for execution of the sale deed was stayed by this Court.   In
view thereof, notwithstanding the dismissal of the Appeal, the sale
deed shall not be executed for a period of eight weeks from today.
Order accordingly.  
  
           [R.G.KETKAR, J.]

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