This takes me to the issue regarding limitation. It is quite clear that by a specific prayer the appellant was seeking to rescind the agreement and consequently, the suit would be governed by article 59 from the Schedule to the Limitation Act, 1963 which prescribes for a period of limitation of three years from the date when facts which entitle the appellant to have the contract set aside or rescinded became known to him. Admittedly, apart from the dispute regarding payment of the balance amount of consideration and keeping aside the issue regarding the readiness and willingness, the appellant had served the respondent first notice on 10.07.1979 (Exh. 53) and the second notice on 10.06.1985 (Exh. 34). Attempt is being made to demonstrate on behalf of the appellant that since the respondent did not give response to the latter notice (Exh. 34), the period of limitation would begin to run from that day. The suit was filed within three years, on 04.07.1985, from the date of this notice and therefore it was within limitation. {para 22}
23. As has been rightly pointed out by the lower appellate court it is the first date when the plaintiff became entitled to rescind the contract would be the date from which the period of three years is to be counted. Going by the recitals in the notice dated 10.06.1979 (Exh. 53) the appellant had specifically put the respondent to notice that unless the balance amount of consideration of Rs. 5500/- was paid within a month and the sale-deed was not got registered, the transaction was to come to an end and the earnest money would stand forfeited. If such was the scenario, at the most one month after this notice when the respondent had not obliged by paying the balance amount of consideration and had not taken steps to get the sale deed registered, the appellant ought to have filed the suit seeking rescission of the contract within three years after lapse of one month after the notice dated 10.07.1979 and to be precise latest by 09.08.1982. The suit was filed on 04.07.1985 and was clearly barred by limitation. The observation and the conclusions of the lower appellate court in this regard are certainly legal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 247 OF 1992
WITH CA/11710/2016
Kishan s/o Gajananrao Ghorpade Vs Shivaji s/o Sarjerao Thombre,
CORAM : MANGESH S. PATIL, J.
PRONOUNCED ON: 21.03.2022.
This is a second appeal by the plaintiff who succeeded in obtaining a
decree for possession by rescinding an agreement to sell the suit property to
the respondent/defendant dated 17.06.1978, but is aggrieved and
dissatisfied by the judgment and order passed by the lower appellate court,
allowing the appeal of the latter and dismissing the suit.
2. Admittedly, the appellant had agreed to sell the suit property which
was exclusively owned by him to the respondent for a total consideration of
Rs. 13,500/- by accepting Rs. 8000/- as an earnest money. Balance amount
of consideration was to be paid, Rs. 2000/- on 21.06.1978 and the
remaining Rs. 3500/- on or before 15.11.1978, by which date the sale-deed
was to be executed. Possession was also delivered under the agreement and
it was witnessed by a writing styled as ‘Isarpawati’ dated 17.06.1978 (Exh.
30).
3. Complaining that the respondent had failed to keep the terms and
conditions of the agreement in spite of couple of notices the appellant filed
the suit with a prayer that the agreement be declared as rescinded and
ineffective and claimed possession and mesne profit.
4. The respondent contested the suit. He admitted about having agreed
to purchase the suit property for the consideration and the transaction was
witnessed by Isarpawati (Exh. 30). He also contended that the possession
was delivered to him under the agreement but denied that there was any
lapse on his part to comply with the terms and conditions that were
expected of him. He contended that on the very next day of the agreement
he paid Rs. 2000/- to the appellant on 18.06.1978 still he avoided to
execute the sale-deed. Even the balance amount of Rs. 3500/- was paid in
the office of the Registrar. The stamp paper was purchased by him in the
name of the appellant however with some ill intention he avoided to
execute the sale-deed. He tried his level best to perform his part of the
contract. He was in lawful possession under the agreement which he was
entitled to protect.
5. The trial court decreed the suit holding that the respondent had failed
to prove that he was ready and willing to perform his part under the
agreement. He failed to substantiate his stand of having paid the balance
amount of consideration and was not entitled to seek any protection under
Section 53A of the Transfer of Property Act. It decreed the suit. The
appellate court by the judgment and order under challenge has allowed the
respondent’s appeal and dismissed the suit by reversing both these material
findings of the trial court. The lower appellate court has held that the
respondent had duly established the fact of having paid the balance amount
of consideration and was entitled to a protection under Section 53A of the
Transfer of Property Act. It dismissed the suit also on the point of limitation.
6. The second appeal was admitted on 28.07.1992 by indicating that it
involved a substantial question of law as covered by the decision in the case
of 1991(1) Mh.L.J. 256 (Adinath Limbaji Navale and others Vs. Policeman
Housing Society, Beed and others) in the matter of application of Section
53A of the Transfer of Property Act.
7. Apart from such substantial question of law, in my considered view,
even the following substantial question of law arises for determination of
this Court :
(1) Whether the lower appellate court has erred in
holding that the suit was barred by limitation ?
8. I have heard the submissions of learned advocate Mr. Arora for the
appellant and learned advocate Mr. S.R. Sapkal for the respondent on
aforementioned both the questions.
9. As far as the first substantial question is concerned, it is quite
apparent that in view of the principles of law that were holding the field at
the material time when the second appeal was admitted, this court had
formulated it relying upon the decision in the case of Adinath Limbaji
Navale (supra), wherein, it was held that a purchaser who was holding
possession under a written agreement to sell the property is entitled to
protect possession in view of the provision of Section 53A of the Transfer of
Property Act only till the time his claim for specific performance was not
barred by limitation.
10. In fact, in the matter of Nanasaheb Vs. Appa, A.I.R. 1957 Bombay
138, a Single Bench of this Court had taken a contrary view holding that a
purchaser was entitled to protection under Section 53A even if his remedy to
seek specific performance was time barred.
11. On a reference to the larger bench, in the matter of Mahadeo Nathuji
Patil Vs. Surjabai Khushalchand Lakkad and others; 1994(2) Mh.L.J. 1145,
the full bench of this Court has approved the view taken in the matter of
Nanasaheb (supra) and expressed disapproval of the one taken in the matter
of Adinath (supra).
12. Incidentally, the Supreme Court has approved the decision of the full
bench of this Court in the matters of Mahadeo Nathuji Patil (supra) in
Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba
Suryavanshi (dead) by L.Rs. and others; A.I.R. 2002 Supreme Court 960.
13. In view of such a settled position, even though the claim of the
respondent to seek specific performance has become time barred, he is
entitled to seek a protection under Section 53A of the Transfer of Property
Act.
14. But then, such a protection under Section 53A of the Transfer of
Property Act can be had, as has been rightly pointed out by the learned
advocate Mr. Arora for the appellant, on strict compliance with all the
necessary concomitants as prescribed in that provisions. It is not that the
protection is blanket one. As has been laid own in the case of Nanjegowda
& Anr vs Gangamma & Ors (2011) 13 Supreme Court Cases 232, in order to
have a protection under Section 53A, inter alia the transferee should have
either performed his part of contract or should be willing to perform it.
15. In view of such a legal position, it was imperative for the respondent if
he wanted to take shelter of Section 53A of the Transfer of Property Act to
demonstrate that he had paid the balance amount of the consideration or
was ready and willing to do it. The trial court held him not to have paid the
balance amount of consideration whereas the appellate court has reversed
that finding. It would, therefore, be necessary to scrutinize the material in that respect.
16. The respondent has led evidence apart from his testimony, in the form
of couple of witnesses to prove that he paid Rs. 2000/- to the appellant on
the very next day of the agreement that is on 18.06.1978 and the balance
amount of Rs. 3500/- on the day when everybody was present in the office
of the Sub Registrar for executing the sale-deed. The lower appellate court
seems to have concluded about such payments having been made by relying
upon these witnesses.
17. Conspicuously the lower appellate court has clearly overlooked the
reasoning which was assigned by the trial court in discarding such
testimonies and the evidence regarding payment of the balance amount of
consideration. The trial court refused to believe these witnesses because of
their inconsistent version regarding the date and place of payment. It also
pointed out that when the agreement itself was in writing, absence of any
receipt regarding such subsequent payments was a clinching circumstance to
disbelieve the stand of the respondent of having paid the balance amounts
of consideration. The lower appellate court has clearly erred in meeting this
plausible reasoning given by the trial court.
18. The trial court had also disbelieved the respondent even on the
ground of probability by questioning as to how if the amount of Rs. 2000/-
was to be paid after about seven days the respondent could have paid it the
very next day that too without any receipt. The trial court also disbelieved
the respondent because it felt unlikely that the respondent would have paid
the entire amount of consideration even before actual execution of the saledeed.
If such was the reasoning given by the trial court it was imperative for
the lower appellate court to have considered the reasoning which to my
mind clearly justified the inference drawn by the trial court to disbelieve the
stand of the respondent of having paid balance amounts of consideration.
19. True it is that there is some evidence in the form of a stamp paper
having been purchased in the name of the appellant and being in possession
of the respondent. But then, the signature on the register of the stamp
vendor was not confronted to the appellant and the stamp vendor who was
also examined as a witness flatly stated that he was not knowing the
appellant or could identify the person who purchased the stamp paper in
his name.
20. Apart from the inherent shortcoming in such a circumstance, it is also
conspicuous to note that though the appellant served couple of notices to
the respondent one in the year 1979 and the other in the year 1983 both of
which were duly exhibited before the trial court on proof thereof, the
respondent never responded to either of the notice much less by taking what
ever stand he wanted to. Independently, the respondent never called upon
the appellant to execute the sale-deed may be by accepting the remainder
of the consideration or if it was already paid by calling upon the appellant to
remain present for execution of the sale-deed. If such was the state of
evidence, the observation and the conclusion of the trial court was certainly
based on correct and plausible appreciation of the evidence which without
there being any sufficient and cogent reason has been reversed by the lower
appellate court.
21. I, therefore, hold that the observation and the conclusion of the lower
appellate court holding that the respondent was ready and willing to
perform his part under the agreement which is a sine qua non for seeking a
benefit under Section 53A of the Transfer of Property was based on
irrelevant material and overlooking the relevant ones. He was not entitled
to have it. The observations and the conclusions of the lower appellate
court in this regard are clearly faulty and illegal.
22. This takes me to the issue regarding limitation. It is quite clear that by a specific prayer the appellant was seeking to rescind the agreement and consequently, the suit would be governed by article 59 from the Schedule to the Limitation Act, 1963 which prescribes for a period of limitation of three years from the date when facts which entitle the appellant to have the contract set aside or rescinded became known to him. Admittedly, apart from the dispute regarding payment of the balance amount of consideration and keeping aside the issue regarding the readiness and willingness, the appellant had served the respondent first notice on 10.07.1979 (Exh. 53) and the second notice on 10.06.1985 (Exh. 34). Attempt is being made to
demonstrate on behalf of the appellant that since the respondent did not give response to the latter notice (Exh. 34), the period of limitation would begin to run from that day. The suit was filed within three years, on 04.07.1985, from the date of this notice and therefore it was within limitation.
23. As has been rightly pointed out by the lower appellate court it is the first date when the plaintiff became entitled to rescind the contract would be the date from which the period of three years is to be counted. Going by the recitals in the notice dated 10.06.1979 (Exh. 53) the appellant had specifically put the respondent to notice that unless the balance amount of consideration of Rs. 5500/- was paid within a month and the sale-deed was not got registered, the transaction was to come to an end and the earnest money would stand forfeited. If such was the scenario, at the most one month after this notice when the respondent had not obliged by paying the balance amount of consideration and had not taken steps to get the sale deed registered, the appellant ought to have filed the suit seeking rescission of the contract within three years after lapse of one month after the notice dated 10.07.1979 and to be precise latest by 09.08.1982. The suit was filed on 04.07.1985 and was clearly barred by limitation. The observation and the conclusions of the lower appellate court in this regard are certainly legal.
I find no hesitation in upholding it.
24. Consequently, even though the lower appellate court had erred in
holding that the respondent was entitled to a protection under Section 53A
of the Transfer of Property Act, it was right in non suiting the appellant on the ground of limitation. I answer these substantial questions of law accordingly.
25. The Second Appeal is dismissed with costs.
26. Pending Civil Application is disposed of.
(MANGESH S. PATIL, J.)
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