TMI Blog2019 (3) TMI 1964X X X X Extracts X X X X X X X X Extracts X X X X ..... ee years from 31.03.1975 which was the date that was fixed by the Agreement. The submission made on behalf of the Plaintiffs that part II of Article 54 of the Schedule to the Limitation Act applies to this case and that the suit was filed within limitation as the refusal by the Defendants was only in the year 1987 is not acceptable. Moreover, the Plaintiffs have not performed their part of the Agreement within a reasonable period. As per the Agreement, the Plaintiffs were given the right to get the sale deed executed through the Court in case of failure on the part of the Defendants to execute the sale deed by 31.03.1975. The Plaintiffs filed the suit 12 years after the date fixed for performance. The silence maintained by the Plaintiffs for about 12 years amounted to abandonment of the Agreement and the finding in this regard made by the Trial Court is approved. The Courts below have found that the Plaintiffs failed to prove their readiness and willingness to perform their part of the Agreement. The failure on the part of the Plaintiffs in not paying the monthly instalments of ₹ 7,000/-, not collecting the rent from the tenant on the ground floor, not paying the house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. It was stated that the Plaintiffs paid an amount of ₹ 20,000/- on 05.10.1974, ₹ 40,000/- on 31.01.1975 and ₹ 10,000/- on 26.12.1975. According to them, they were put in proprietary possession of the premises on payment of ₹ 70,000/- as stipulated in the Agreement. 3. M/s Vinod Industries stopped paying the rent to Smt. Suraj Kumari as it had become a tenant of the Plaintiffs as per the Agreement. The tenant of the ground floor- Shri A.C. Deb had to pay the rent to the Plaintiffs as per the Agreement. The Plaintiffs permitted the First Defendant to collect the rent from Shri Deb, the tenant of the ground floor which would be adjusted later against the balance amount payable by them towards the sale consideration. Shri Deb died in 1985 and his wife continued to live on the ground floor. Mrs. Deb vacated the ground floor premises at the end of September, 1987. After Mrs. Deb vacated the ground floor, the Defendants started making repairs. On an enquiry made by the Plaintiffs, the Defendants informed them that the Defendant No.4 intended to occupy the ground floor for which reason the repairs were being made. The Plaintiffs demanded specific performance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deb who vacated in 1987. Finally, the Defendants pleaded that the Plaintiffs were never ready and willing to perform their part of the contract and hence, the suit was liable to be dismissed. 5. The Trial Court framed the following issues: 1. Whether the suit is within limitation? 2. Whether the suit is not bad for misjoinder of parties in cause of action? 3. Whether the Agreement to sell dated 5/10/74 was amended and varied by the parties with regard to payment of ₹ 50,000/- upto 31/10/74 and the balance sale consideration in installments of ₹ 7,000/- commencing from January 1975 till full payment of the sale consideration as alleged? If so, to what effect? 4. Whether the amount of ₹ 10,000 paid by the plaintiffs was towards installment of ₹ 50,000 as alleged by the plaintiff? 5. Whether the plaintiff was put into proprietary possession of the entire suit property by defendant no. 1 as alleged in para 15 of the plaint? 6. Whether there is a subsisting Agreement to sell capable of specific performance as alleged? 7. Whether the defendant committed breach of the contract? 8. Whether the plaintiff has been ready and willing to perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponsible for taking steps to evict the tenants. The Defendants had to get the necessary permission to sell the property from the L DO before the date of execution of the sale deed as well as the necessary permission from the Income Tax Authorities. Clause 10 of the Agreement provided that the sale deed shall be executed before 31.03.1975. In case of failure on the part of the Defendants to execute the sale deed, the Plaintiffs were given the right to get the suit property conveyed by specific performance through the Court. 8. We have heard Mr. Jayant Bhushan, learned Senior Counsel for the Appellants/Plaintiffs and Mr. Sachin Datta, learned Senior Counsel for the Respondents/Defendants. Mr. Jayant Bhushan submitted that the suit was filed within the prescribed period of limitation and the findings of the Courts below that the suit was barred by limitation are unsustainable. According to him, no cause of action accrued for filing a suit on 31.03.1975, which was the date fixed for execution of the sale deed, as there was no permission granted by the L DO for transfer of the property as on that date. He submitted that a sale deed could not have been executed without the permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years from that date, it was barred by limitation. He referred to the findings recorded by the Courts below that the agreement was neither varied nor modified. He further submitted that the non-fulfilment of the condition pertaining to obtaining permission cannot be an excuse for the Plaintiffs to not file a suit for specific performance within the prescribed period of limitation. According to him, the second part of Article 54 of the Schedule to the Limitation Act is not applicable to this case. He asserted that there was an inordinate delay in filing the suit which by itself is a ground for dismissal of the suit. The torpid silence of the Plaintiffs in not resorting to a legal remedy within a reasonable period tantamounts to their abandoning the Agreement. Finally, Mr. Datta submitted that the findings of fact on the point of readiness and willingness cannot be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India. 10. There are essentially two points that arise for our consideration in this case. The first relates to limitation. A specific date i.e. 31.03.1975 was fixed for performance of the Agreement, i.e. execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of the Defendants to execute the sale deed by 31.03.1975. The Plaintiffs filed the suit 12 years after the date fixed for performance. It is relevant to refer to the judgment of this Court in K.S.Vidyanadam v. Vairavan (1997) 3 SCC 1 wherein it was held as follows: Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property. 12. The silence maintained by the Plaintiffs for about 12 years amounted to abandonment of the Agreement and we approve the finding in this regard made by the Trial Court. 13. The Courts below have found that the Plaintiffs failed to prove their readiness and willingness to perform their part of the Agreement. The failure on the part of the Plaintiffs in not paying the monthly instalments of ₹ 7,000/-, not collecting the rent from the tenant on the ground floor, not paying the house tax etc., and not taking any action for eviction of the tenant on the ground floor are some of the points held again ..... 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