Specific Performance

Civil Procedure Code, 1908 (V of 1908)  Order VII rule 11  - Suit for Specific performance  - Limitation - Court has, to consider if from reading of the entire plaint statement, what is the date fixed for performance of the contract, and if no date is fixed for performance, as to when the plaintiff-appellant had notice that the performance had been refused -  It is to be considered if the suit filed was within 3 years from the relevant date under first or the second part of Article 54 of the Limitation Act - Court is of the considered view that the intention/conduct of the defendant-respondent, as per the plaint pleadings i.e. giving assurance etc., is of no importance so far as the period of limitation is concerned or the time from which it starts running - Limitation Act, 1963 (36 of 1963)  Article 54. #2020 SCeJ 1351 

 

 

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Held,

The plaint statements clearly show that (i) no date was fixed for performance of contract, (ii) the plaintiff-appellant had sent a notice dated 31.12.1993 through registered post as well as Under Postal Certificate(UPC) to the defendant-respondent for execution/registration of the sale deed, (iii) the UPC was received by the defendant-respondent, (iv) by the said notice the plaintiff-appellant had fixed 28.1.1994 requiring the defendant-respondent to appear in the office of the Sub Registrar, Meerut, for execution/registration of the sale deed, and (v) on the date fixed i.e. 28.1.1994, the defendant-respondent did not appear for performance although the plaintiff-appellant remained present with balance of the sale consideration. As no date was fixed for the performance of the contract, the first part of Article 54 of the Limitation Act would not apply. The limitation period of 3 years would, therefore, start running from the date the plaintiff-appellant had notice of refusal of performance by the defendant-respondent. The performance of contract was refused by the defendant-respondent on 28.1.1994 as he did not appear for execution of the sale deed before the Sub Registrar, on that date in pursuance of the notice dated 31.12.1993 sent by the plaintiff-appellant. As the plaintiff-appellant was present on 28.1.1994 in the office of the Sub Registrar, Meerut for getting the execution of the sale deed, after making payment of balance of the sale consideration to the defendant-respondent, the plaintiff-appellant actually knew that the performance was refused by the defendant-respondent on 28.1.1994 itself. He, as such had the notice of refusal of performance on 28.1.1994. In view of the above, the period of limitation of 3 years to institute the suit for specific performance of contract, started to run from 28.1.1994 and came to an end on 27.1.1997. The suit filed in the year 2001 was, thus, clearly barred by law of limitation on the averments made in the plaint itself under Order VII Rule 11(d) C.P.C. [Para 33, 34, 35]

In the present case, since the very beginning, as per the plaint averments, no time was fixed for performance. As such the period of limitation of 3 years would start running from the date the plaintiff- appellant had notice of refusal of performance for the first time which is 28.1.1994. [Para 40]

Court is of the considered view that the intention/conduct of the defendant-respondent, as per the plaint pleadings i.e. giving assurance etc., is of no importance so far as the period of limitation is concerned or the time from which it starts running. [Para 42]

 

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Limitation Act, 1963 (36 of 1963)  Article 54 – Suit for specific performance - Provides for a period of 3 years for institution of the suit, does not make any distinction between suits for specific performance of contract, on the basis of delivery of possession, pursuant to agreement to sell or part performance of agreement -  Article 54 of the Limitation Act does not make any difference between the cases where the property had been delivered in part performance of the agreement or otherwise and the cases where it has not been so delivered. #2020 SCeJ 1351 (All.) 

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