TMI Blog2006 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... erji, T. Mamo Singh, Joydeep Mazumdar, Saurav Agarwal and Prashant Kumar for the Respondent. JUDGMENT S.B. Sinha, J. - This appeal is directed against a judgment and order dated 29-1-1998 passed by the Calcutta High Court in Second Appeal No. 887 of 1991 affirming the judgment and order dated 29-6-1990 passed by the learned Asstt. District Judge, Ghatal, District Midnapore, West Bengal in Title Appeal No. 74 of 1989 whereby and whereunder an appeal against the judgment dated 31st August, 1989 passed by the learned Munsif, Ghatal, District Midnapore, West Bengal in Title Suit No. 133 of 1985 was dismissed. 2. The basic fact of the matter is not much in dispute. Respondent No. 2 herein ( the company ) is a company registered and incorporated under the Companies Act, 1956 ( the Act ). The said company held and possessed the suit property situated in the District of Midnapur in the State of West Bengal. It intended to sell the said property. Respondent Nos. 1 2 having come to know of the said intention on the part of the company entered into an agreement for sale thereof, wherefor a sum of Rs. 6,000 was paid to the company by way of advance. The balance amount was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttracted. The plea that the respondent No. 1 was not ready and willing to perform his part of contract was also held to have been waived. The plea of limitation was also negatived. 7. The appeal preferred thereagainst was also dismissed by the first appellate court. 8. In the second appeal preferred by the appellant herein, it does not appear that any substantial question of law was framed by the High Court as was mandatorily required under section 100(4) of the Code of Civil Procedure, 1908. However, a learned Single Judge of the court dealt with all the contentions raised on behalf of the appellant and dismissed the suit. 9. Mr. Santosh Mishra, learned counsel appearing on behalf of the appellant, in support of this appeal, submitted that the courts below committed a manifest error in arriving at the finding that the suit was not barred by limitation, purported to be relying on or on the basis of the first part of article 54 of the Limitation Act whereas in this case the second part thereof could be attracted. It was urged that the respondent No. 1 in terms of the agreement for sale dated 18-4-1971 was required to pay the balance sum of Rs. 8,000 within fourteen month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany, it was urged, one of the directors was entitled to execute the deed of sale on behalf of the company. 14. The appellant herein is a subsequent purchaser. A finding of fact has been arrived at by all the courts that he had purchased the property with full notice of the said agreement for sale. 15. The company has not preferred any appeal against the judgment and decree passed by the learned Munsif before the appellate court. 16. A deed of sale has already been executed in favour of the first respondent in execution of the decree passed by the learned trial court. Before the High Court, as noticed hereinbefore, no substantial question of law was framed. The question as regards the applicability of the first part or the second part of article 54 of the Limitation Act had also not been raised before the High Court. The parties adduced evidence only on that basis. 17. So far as the question of limitation is concerned, the learned trial Judge held: "The letters sent by the plaintiff or his brothers on behalf of the plaintiff (exts. 8 to 11), the letter of chairman director Purushattam Roy (ext. 7) coupled with the fact of non-issuing of any notice by defendant N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by limitation." 20. Contention of Mr. Mishra as regard the applicability of the first or the second part of article 54 of the Limitation Act will have to be judged having regard to the aforementioned findings of fact. A plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also the conduct of the parties and also as to how they understood the terms and conditions of the agreement. It is not in dispute that the suit for specific performance of contract would be governed by article 54 of the Limitation Act, 1964. While determining the applicability of the first or the second part of the said provision, the court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the court may determine the date on which the plaintiff had notice of refusal on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s could have adduced evidence thereupon. Such a plea for the first time before this court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18-4-1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title. 23. In Ramzan s case ( supra ), Sharma, J. (as the learned Chief Justice then was), opined that the date fixed for the parties for performance of the agreement should be ascertained on the basis of the terms of the contract. On an interpretation of the agreement in sale, which was the subject-matter of the said suit, the same was held to be a contingent contract within the meaning of section 31 of the Contract Act. Therein, the property was placed under a mortgage and the defendant had agreed to execute a deed of sale on the redemption of the mortgage by her. The mortgage was redeemed in 1970. It was in the aforementioned fact situation, the doctrine of id certum est quod certum redid potest (certainty need not be ascertained at the time) was applied. The said decision, therefore, is not applicable in the instant case. 24. In Tarlok Singh s case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or, in some cases, even by evidence of conduct including forbearance on the part of the other party. Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of the plaintiffs. What was originally covered by the first part of article 54, now fell within the purview of the second part of the article." 29. In R. K. Parvatharaj Gupta v. K. C. Jayadeva Reddy [2006] 2 SCALE 156, wherein one of us was a member, it was observed : "In terms of the said article, a suit for specific performance of a contract is required to be filed within three years; in the event no date is fixed for the performance, within a period of three years from the date when the plaintiff has notice that performance is refused. The notice dated 24-4-1984, thus, is required to be construed in the context of the agreement dated 13-10-1982 entered into by and between the parties. There cannot be any doubt whatsoever that in respect of a contract for sale of immovable property, time is not of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period for execution of the deed of sale had been extended. 32. Similarly, the applicability of the provisions of section 29 of the Indian Contract Act having not been raised, the same cannot be permitted to be raised for the first time before this court. Even otherwise we do not see, on a plain reading of the said agreement of sale dated 18-4-1971, that the terms thereof were uncertain or vague so as to attract the provisions of section 29 of the Contract Act. 33. Sections 46 and 48 of the Act, read as under : "46. Form of contracts. (1) Contracts on behalf of a company may be made as follows : - ( a ) a contract which, if made between private persons, would by law be required to be in writing signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied, and may in the same manner be varied or discharged ; ( b )a contract which, if made between private persons, would by law be valid although made by parole only and not reduced into writing, may be made by parole on behalf of the company by any person acting under its authority, express or implied, and may in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence at the time, and for the purpose in question. [ See Establishing Agency by GHL Fridman - 1968 (84) Law Quarterly Review 224 at p. 231.]" (p. 201) 37. It is not in dispute that the contract was executed in the name of the company. It has furthermore not disputed that all the five directors executed the agreement. The company was a private limited company. The trial court held : ". . .As all the directors of the company took part in execution of ext. 3 there was not necessity of giving any special authorisation either under section 46 or under section 48 of the Act for entering into or for execution of the contract. It is true that at the time of execution of the documents in favour of the party defendants (ext. A series) there was a resolution of the company. The copy of the said resolution was marked (ext. 1). On plain reading of ext. 1 it is found that as 4 directors out of the 5 directors of the company were empowered to execute those documents said resolution was necessary under section 48 of the Act." 38. Before the courts below, execution of the agreement was not denied. us, even in the absence of resolution the contract could not have been to be invalid or ..... 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