TMI Blog2012 (12) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiffs to have the agreement enforced in law. Therefore, to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. It must be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. After consideration to all relevant aspects of the case for the ends of justice would require this court to intervene and set aside the findings and conclusions recorded by the High Court and to decree the suit of the plaintiffs for specific performance of the agreement. further sale deed that will now have to be executed by the defendants in favor of the plaintiffs will be for the market price of the suit property as on the date of the present order. As no material, whatsoever is available to enable us to make a correct assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 50,000/- (Rupees fifty thousand only) was paid to the defendant by the plaintiff No.1 as part payment. Under clauses 4, 5 and 7 of the agreement dated 22.12.1970 the defendant was required to obtain necessary Tax Clearance Certificate from the Income Tax Authorities for sale of the suit property and intimate the said fact and also deliver to the plaintiff No.1 a copy of such certificate within twelve months from the date of the execution of the agreement dated 22.12.1970. Within three months thereafter, the plaintiff No.1 was required to pay the balance sale consideration on receipt of which the defendant was under an obligation to execute the sale deed in favour of the plaintiff. Under clause (7) of the agreement dated 22.12.1970 the plaintiff No.1 was to pay to the Income Tax Authorities such amount as may be desired by the defendant (not exceeding the balance sale price of the property) against the tax dues of the defendant so as to facilitate the grant of the required tax clearance certificate. Clause (7) of the agreement also contemplated that such money as may be paid by the plaintiff No.1 to the Income Tax Authorities in the defendant-vendor s account was to be deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the defendant reiterating the contents of his earlier letter dated 14.11.1972. Thereafter, there was no correspondence between the parties for about five years until the suit was filed on 3.11.1997. It may be specifically noted, at this stage, that according to the plaintiffs the suit could not be instituted earlier as the defendant was all along residing in London. Another relevant fact that would be required to be noticed is that on 16.9.1977 the plaintiff No.1 had received a notice terminating the tenancy qua half portion of the suit property which had commenced on and from 20.12.1970. It is in these circumstances that the plaintiff had filed the suit seeking a decree of specific performance of the agreement dated 22.12.1970 and, in the alternative, for a decree of a sum of ₹ 1,30,120.50 being the total of the part amount paid to the defendant and damages along with interest thereon. 5. Denying the claims made by the plaintiffs the original defendant had filed a written statement contending, inter alia, that the suit was barred by limitation. Though the defendant had admitted the creation of the tenancy in favour of the plaintiff No.1 on 20.12.1970 as well as execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by judgment dated 5.10.1983 decreed the suit of the plaintiffs for specific performance of the agreement dated 22.12.1970 and directed execution of the sale deed by the defendant in favour of any of the plaintiffs, failing which, the Registry of the Court was directed to ensure the execution of the same. The balance of the sale consideration i.e. ₹ 3.25 lakhs was to be paid by the plaintiffs at the time of the execution of the sale deed and in the event the sale deed was to be executed through the Registry of the Court the aforesaid amount was to be deposited in Court before registration of the sale document. 8. Aggrieved by the aforesaid judgment and decree passed by the learned trial judge, the original defendant had filed an appeal which was allowed by the impugned judgment dated 31.10.2011. During the proceedings of the appeal before the High Court the original plaintiffs 1 and 3 as well as the original defendant had died. As already noticed, while the original plaintiff No.2 continues to remain on record as an appellant, the remaining appellants claim to be the legal heirs/representatives of the deceased plaintiff Nos.1 and 3. In so far as the original defendant in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 3.75 lakhs as mentioned in the agreement dated 22.12.1970. 11. Opposing the contentions advanced on behalf of the appellants, learned counsels for the respondent (referred hereinafter in the singular) have submitted that the meaning sought to be attributed to the provisions of Section 15(5) of the Limitation Act, 1963 is wholly unacceptable. It is argued that the law does not countenance a situation where the initiation of a civil action can be postponed till the availability of the defendant in India, which would be the virtual effect of Section 15(5) of the Limitation Act if the arguments made on behalf of the appellants on this score are to be accepted. It is further urged that the cause of action for the suit arose on the expiry of 15 months from the date of the agreement, namely, on 22.03.1972 and the period of three years for filing the suit had expired on 22.03.1975. Alternatively, as by letter dated 06.11.1972, three days further time has been granted by the defendant to the plaintiff the cause of action may be understood to have arisen on 09.11.1972 and the period of limitation of three years to be over on 09.11.1975. Learned counsel has also submitted that as by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions that have preceded three issues, in the main, arise for our determination. In proper sequential order, the first would be whether the suit is barred by limitation. If not, which of the parties to the agreement dated 22.12.1970 are in breach of the terms and conditions thereof and, lastly, if no such breach can be attributed to the plaintiff whether a decree of specific performance should be granted at this belated point of time. 13. Even going by any of the three different/alternative dates on which the cause of action for the plaintiffs suit had arisen, as conceded by the learned counsel for the respondent, it is evident that the suit was filed beyond the stipulated period of three years from any of the dates of the accrual of the cause of action. However, the plaintiffs have invoked the provisions of Section 15 (5) of the Limitation Act, 1963 to claim the benefit of the exclusion of the period during which the defendant was absent from India. There can, indeed, be no doubt that if the plaintiff is entitled to exclude the period of such absence the bar of limitation will not apply to the present suit. The court, therefore, must make an endeavour to find out the true mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this decision. The Full Bench rightly overruled the earlier decisions in Ruthinu v. Packiriswami[AIR 1928 Mad 1088] and Subramania Chettiar v. Maruthamuthu [AIR 1944 Mad 437]. We hold that the suit is not barred by limitation. 15. In the present case from the evidence on record it is established that till the date of filing of the suit i.e. 03.11.1977, the defendant was in India during following periods: 1. from 24.09.1970 to 15.10.1970, 2. from 17.12.1970 to 28.12.1970, 3. from 16.08.1971 to 11.09.1971, 4. from 29.10.1972 to 10.11.1972, 5. from 02.09.1977 to 01.10.1977 The decision of this Court in P C K Muthia Chettiar (Supra) clearly lays down that the operation of Section 13 of the Limitation Act, 1908 (corresponding to Section 15 (5) of the Limitation Act, 1963) does not make any exception in cases where the cause of action had arisen in a foreign country or in India or in cases in which the defendant was in India or in a foreign country at the time of the accrual of the cause of action. Taking into account the ratio laid down by this Court in P C K Muthia Chettiar (Supra) and the period during which the defendant was absent from India there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed that on 09.09.1971 he had hand delivered a letter of the even date (Exh.D/1) to the plaintiff No. 1 requesting the plaintiff to pay to the defendant or to deposit in the defendant s bank account a sum of one lakh in order to enable the defendant to furnish a bank guarantee for the purpose of obtaining the necessary tax clearance certificate. According to the defendant though the plaintiff had written a letter dated 27.12.1971 (Ex. PW/11) enquiring about the status of the tax clearance certificate and reiterating his anxiety to have the sale transaction completed there was neither any mention of the letter dated 09.09.1971 in the said communication dated 27.12.1971 nor did the same contain the response of the plaintiff to the request of the defendant for further money. The defendant has also relied on a notice dated 06.11.1972 issued to the plaintiff (Exh.P-6) wherein reference to the letter dated 09.09.1971 of the defendant was made and the request for further money was reiterated. Furthermore, according to the defendant, though the plaintiff had replied to the aforesaid notice dated 06.11.1972 by his letter dated 14.11.1972, once again, the plaintiff had remained silent wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the balance sale price of the property, against the Tax dues from the Vendor to facilitate the Vendor to get the required wealth tax certificate. Such money as paid to the Income Tax Authorities on the request of the Vendor will be paid in the Vendor s account and will be deducted by the purchaser from the balance of the sale price at the time of the execution of the sale Deed. 20. Under the said clause 7 of the agreement, clearly, the obligation of the plaintiff No.1 was to pay to the Income Tax department such sum (not exceeding the balance consideration payable) as may be requested by the defendant. Neither clause 7 nor any other Clause of the agreement had cast upon the plaintiff No.1 a duty to tender any further payment to the defendant or to credit the bank account of the defendant with any further advance amount after payment of the initial amount of ₹ 50,000/-. In as far as the obligation to pay the Income Tax Department as contemplated by clause 7 is concerned it has been already noticed that the plaintiff No.1 had repeatedly asserted in the correspondence referred to above that he was always ready and willing to pay any amount (within the balance consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the circumstances when reading an unexpressed term in an agreement would be justified on the basis that such a term was always and obviously intended by and between the parties thereto. Certain observations in this regard expressed by Courts in some foreign jurisdictions were noticed by this court in para 51 of the report. As the same may have application to the present case it would be useful to notice the said observations: Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander, were to suggest some express provision for it in their agreement, they would testily suppress him with a common Oh, of course! Shirlaw v. Southern Foundries (1926) Ltd. (1939) 2 All ER 113 (CA) ----------------------------------------------------------------- An expressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To sum up, no straitjacket formula can be laid down and the test of readiness and willingness of the plaintiff would depend on his overall conduct i.e. prior and subsequent to the filing of the suit which has also to be viewed in the light of the conduct of the defendant. Having considered the matter in the above perspective we are left with no doubt whatsoever that in the present case the Plaintiff No.1 was, at all times, ready and willing to perform his part of the contract. On the contrary it is the defendant who had defaulted in the execution of the sale document. The insistence of the defendant on further payments by the plaintiff directly to him and not to the Income Tax authorities as agreed upon was not at all justified and no blame can be attributed to the plaintiff for not complying with the said demand(s) of the defendant. 26. Having arrived at the above conclusion it is wholly unnecessary for us to consider the arguments advanced on behalf of the appellants with regard to the provisions of the Foreign Exchange Regulation Act, 1973 (FERA) in the light of which it had been contended that it was not open in law for the plaintiff to comply with the demands for the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court. 30. Having given our anxious consideration to all relevant aspects of the case we are of the view that the ends of justice would require this court to intervene and set aside the findings and conclusions recorded by the High Court of Delhi in R.F.A.No.11/1984 and to decree the suit of the plaintiffs for specific performance of the agreement dated 22.12.1970. We are of the further view that the sale deed that will now have to be executed by the defendants in favour of the plaintiffs will be for the market price of the suit property as on the date of the present order. As no material, whatsoever is available to enable us to make a correct assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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