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Tuesday, January 29, 2013

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

AS 144 / 2012

ASSR 2991 / 2012 
PETITIONERRESPONDENT
KALVA VENKATESWARLU  VSDEVAKI VENKATA RAMANA
PET.ADV. : VENKATESWARLU CHAKKILAMRESP.ADV. : MANOHER REDDY
SUBJECT: SPECIFIC PERFORMANCEDISTRICT:  PRAKASAM
FILING DATE:  27-02-2012POSTING STAGE :  INTERLOCUTORYDISPOSED ON  :  09-08-2012  ANC
REG. DATE    :   01-03-2012LISTING DATE :  09-08-2012STATUS   :  ---------
HON'BLE JUDGE(S):B.CHANDRA KUMAR    


The Hon’ble Sri Justice B.Chandra Kumar
Appeal Suit No.144 of 2012

Dated 9th August, 2012
Judgment:
          The appellant filed this appeal challenging Order, dated
27-01-2012, passed by the learned Senior Civil Judge, Darsi, in CFR.No.90 of 2012, refusing to register the suit filed by him on the ground that the same is barred by limitation .
          The plaintiff filed the suit for specific performance basing on agreement of sale, dated 13-11-2008.  As per the terms and conditions of the agreement of sale, the balance amount of Rs.4 lakhs out of the total sale price of Rs.9 lakhs was to be paid within two months from the date of expiry of the limitation of the said agreement of sale.  
The case of the appellant is that though he had been requesting the respondent to receive the balance sale consideration and register the sale deed in his favour, the respondent did not come forward; that therefore, he got issued a legal notice to the respondent on
12-10-2011; that the respondent acknowledged the same and got issued a reply notice on 17-10-2011. 
          The learned Counsel for the appellant contended that the cause of action for filing the suit arose on 13-11-2008, which is the date of execution of the agreement of sale, and also on 12-10-2011, when he got issued a legal notice, and on 17-10-2011, when the respondent issued reply, refusing to perform his part of contract.  But, the lower Court erroneously rejected the plaint on the ground that the date of the suit document being 13-08-2008, the suit ought to have been filed on or before 13-11-2011, on which date the period of limitation expires.
          The Court below, taking into consideration the period of two months for paying the balance of sale consideration amount from the date of the agreement of sale, came to the conclusion that suit is barred by limitation.  If the date of document or the period of two months as agreed by the parties for payment of balance sale consideration is taken into consideration, the conclusion arrived at by the Court below appears to be correct.  But, however, the fact remains that the plaintiff got issued legal notice on 12-10-2011, and according to Counsel for the appellant, as per the second limb of Article 54, the period of limitation starts on 17-10-2011, when the respondent issued reply notice refusing to perform his part of contract. 
          Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows:
“For Specific performance of a contract:
Three years
The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”
          The learned Counsel for the appellant relied on a judgment of the apex Court in Ahmmadsahb Abdul Mila vs.  Bibijan[1],
 wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. 
          Per contra, the learned Counsel for the respondent submits that from the plaint averments, it is clear that the suit is barred under by limitation and therefore, the Court below while exercising powers under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, has rightly rejected the plaint.
          The issue that may arise for consideration is whether second limb of Article 54 is applicable to the facts of the present case when no specified date in the calendar is mentioned i.e., whether limitation of three years period commences from the date when the plaintiff has noticed that performance is refused.
          Therefore, it appears that whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold.    In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. 
          The Appeal is allowed accordingly. In the circumstances, there shall be no order as to costs.  However, the parties are at liberty to take all the pleas available to them including the plea of limitation before the Court below and the Court below shall consider the same in accordance with law. 
_____________________

B.Chandra Kumar, J

9th August, 2012
lur


[1] 2009 (5) SCC 462

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