K.S.Mohamed Ibrahim v. Mohamed Habibullah

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08.01.2008CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.305 of 1996 1. K.S.Mohamed Ibrahim2. K.A.Sahul Hameed3. A.Abdul Jaleel .... Appellants [Defendants 1,2 and 3]vs.Mohamed Habibullah ..... Respondent [Plaintiff]Appeal filed against the Judgment and Decree, dated 25.10.1994made in O.S.No.347 of 1992 on the file of the Principal SubordinateJudge, Erode. For Appellants : Mr.K.Doraisami, Senior Counsel for Mrs.Muthumani DoraisamiFor Respondent : No appearanceJUDGMENTThis appeal is directed against the Judgment and Decree, dated25.10.1994 made in O.S.No.347 of 1992 on the file of the PrincipalSubordinate Judge, Erode. The appellants herein were defendants 1, 2and 7 in the suit before the trial court. 2. The suit was filed by the respondent / plaintiff, seeking adecree against the appellants and others, directing them to payspecific amounts with interest and costs, accordingly, the decree waspassed by the trial court against the first appellant / D1 to pay asum of Rs.1,76,585/- along with 15% interest for the principal amountof Rs.1,00,000/-. The second appellant / D2 was directed to pay a sumof Rs.1,76,585/- along with 15% interest for the principal amount ofRs.1,00,000/-. The third appellant / D7 was directed to pay a sum ofRs.88,293/- with 15% interest for the principal amount of Rs.50,000/-with cost. Futher, the appellants herein were directed to pay https://hcservices.ecourts.gov.in/hcservices/ Rs.6,000/- which was given by the respondent for one Mumtaj Begumand one Hazra Bibi with interest and costs.3. According to the respondent / plaintiff, he entered into anagreement, Ex.A.1, dated 11.03.1987 with the appellants and sevenothers to purchase the property described in the plaint schedule, fora sale consideration of Rs.7,85,000/-. On the date of agreement,Tmt.Mumtaj Begum and Tmt.Hajaran Beevi were not present to sign theagreement, however, Rs.2,71,000/- was received by the defendantstherein as advance and part of the sale consideration. 4. According to the respondent / plaintiff, the appellants andothers were evading the performance of their part of the contract.Hence, he issued a legal notice, dated 06.11.1989, marked as Ex.A.2.The appellants 1 and 2 sent a reply notice, dated 01.12.1989 markedas Ex.A.5, wherein the appellants 1 and 2 have disputed the claim ofthe respondent.5. Mr.K.Doraisami, learned Senior Counsel appearing for Mrs.Muthumani Doraisami, for the appellants contended that even as perthe pleadings, the trial court should have decided that the suitclaim was barred by limitation, for which, he drew the attention ofthis Court to Section 3 of The Limitation Act, 1963. As per Section 3(1) of The Limitation Act, 1963, subject to the provisions containedin Section 4 to 24 (inclusive), every suit instituted, appealpreferred and application made after the prescribed period shall bedismissed, though limitation has not been set up as a defence by theother side. 6. According to the respondent, the agreement for sale, Ex.A.1was entered into between the respondent, appellants and others on11.03.1987. The respondent has also admitted that as per Ex.A.1,agreement, time limit fixed for performance of contract was sixmonths from the date of the agreement and therefore, as per theagreement, it could have been performed on or before 10.09.1987.Further, there is a forfeiture clause stating that if the respondentfail to perform his part of the contract, he will loose the advanceamount paid and similarly, if the appellants and others fail toperform their part of contract, the respondent could have the rightof specific performance of the contract, through court of law andalso entitled to claim damages and costs.7. The respondent herein, who was examined as P.W.1 has admittedthat he had not filed any suit for specific performance of thecontract, but filed this suit only for return of the advance amountwith interest.8. As contended by the learned counsel for the appellants, it isonly a suit on money claim. As per Article 47, the limitationprescribed for money claim is only three years. In case of specific https://hcservices.ecourts.gov.in/hcservices/ performance of a contract, the limitation is three years from thedate fixed for the performance of the contract or if no such date isfixed, then the date of refusal for the performance of the contracthas to be considered. 9. In the instant case, as per Ex.A.1, agreement for sale, timelimit has been fixed as six months from the date of agreement andtherefore, the time limit for the performance of the contract wouldbe 10.09.1987. From that date, within three years, the suit couldhave been filed and therefore, as contended by the learned counselappearing for the appellants, for enforcement of specificperformance, the suit could have been filed on or before 10.09.1990.There is also a forfeiture clause under Ex.A.1 agreement. However,being an agreement for sale of immovable properties, on the facts andcircumstances, it cannot be held that time was the essence of thecontract, but the parties cannot over rule the Limitation Act, sincethe time limit stipulated under the Limitation Act is mandatory. 10. According to P.W.1, he paid the advance amount towards partpayment of consideration on 11.03.1987. As he had filed the suit onlyfor recovery of the aforesaid amount, he could have filed the suitwithin three years from the date of agreement or at least withinthree years from the time limit fixed for the performance ofcontract. But, it is seen that the suit was filed only 09.06.1992,after the expiry of the time limit. 11. In the written statement filed by the appellants, theappellants have specifically pleaded that the suit claim was barredby limitation. However, the trial court has not framed any issueregarding question of limitation to maintain the suit. It is not indispute that the court has to frame the issues based on the pleadingsof both the parties. As the appellants / defendants have raised thequestion of limitation for maintaining the suit, the trial courtshould have framed a specific issue, regarding the same, but theissue regarding question of limitation has not been framed by thecourt below, though the trial court has discussed the same inparagraph number 11 of the impugned Judgment.12. As per Section 3 of the Limitation Act, 1963, every suitinstituted, appeal preferred and application made for the prescribedperiod shall be dismissed, though limitation has not been set up as adefence. In this case, the appellants as defendants have specificallyraised their defence on the ground of limitation.13. P.W.2 and P.W.3 are attestors to the document Ex.A.1. Theyhave deposed in their evidence that on 11.03.1987, the agreement forsale, Ex.A.1 was entered into between the parties and Rs.2,71,000/-was paid towards part of sale consideration. They have also admittedthat though there were thirteen parties to Ex.A.1, including therespondent herein, the said document was not signed by two of them, https://hcservices.ecourts.gov.in/hcservices/ who were stated as party number 8, Mumtaj Begum and party number 10,Hazra Bibi. 14. According to the respondent, the appellants had assured thatthey would get the signature of the said party number 8 and 10,however, could not get their signatures as promised. This Court is ofthe view that Ex.A.1, agreement for sale, cannot be considered as anincomplete document, merely because two of the parties stated thereincould not sign, since it conveys the agreement and bind the parties,who were signed therein and said to have received advance amount,therefore, as held by the court below, Ex.A.1, cannot be construed asan incomplete document, as far as signatories to the documents areconcerned.15. In view of Section 3 (1) of the Limitation Act, it is clearthat after expiry of limitation, no suit can be instituted. In theinstant case, as per the pleadings of the respondent / plaintiff, theagreement for sale, Ex.A.1 was entered into between the parties on11.03.1987, whereby, time limit for performance of the contract wasfixed as six months from the date of agreement.16. Mr.K.Doraisami, learned Senior Counsel submitted that Article54 of the Limitation Act is applicable for a suit for specificperformance of agreement of sale. As the respondent had filed thesuit only for the refund of the advance amount, according to thelearned Senior Counsel, Article 47 of the said Act is applicable andthat the suit claim, in view of Article 47 of the Act is barred bylimitation. In support of his contention, he relied on the decision,P.Sivan Muthia and eight others vs. John Sathiavasagam, reported in1990 TLNJ 70, wherein a Division Bench of this Court, has held thatthe time stipulated is three years, when there is a date fixed forthe performance of a contract and if no date is fixed for theperformance of the contract, the time would be three years after theperformance is refused by the other side. In this case, as perEx.A.1, agreement for sale of immovable property, for the performanceof contract, six months time had been fixed from the date of theagreement, 11.03.1987. Therefore, the last date fixed forperformance, as stipulated in the agreement is 10.03.1990. Even forthe return of the advance amount, being the money claim, as perArticle 47 of the Limitation Act, three years time limit wouldcommence from the last date stipulated for the performance of thecontract. In the aforesaid decision, at page number 72, the DivisionBench of this Court has observed as follows :Now, there is a consensus before us that theArticle of the Limitation Act 1963 that could beinvoked is Article 47. The Article speaks aboutrecovery of money paid upon an existingconsideration which afterwards fails and the timestipulated is three years from the date of thefailure." https://hcservices.ecourts.gov.in/hcservices/

17. In this regard, the learned Senior Counsel drew the attentionof this Court to Ex.A.1, agreement for sale, dated 11.03.1987 andalso copy of the legal notice issued by the respondent, marked asEx.A.2 and the reply given by the appellants 1 and 2. In the replynotice, dated 01.12.1989, the aforesaid appellants have deniedpassing of consideration. They have also stated that it is anincomplete agreement, since party number 8 and 10 mentioned thereinhave not signed in the agreement. Further, they have specificallystated that it is a time barred claim, since as per the recital inthe agreement, the time limit was fixed as six months from the dateof agreement. It is seen that the respondent had not filed any suitfor specific performance of the contract for sale, based on Ex.A.1,but he has filed the suit only for return of the alleged advanceamount paid to the appellants herein. As per Ex.A.1, it is clear thatthe time limit for the performance of the contract was six months andtherefore, the suit could have been filed within three years from thelast date fixed for performance of contract, in view of Article 47of the Limitation Act, 1963 and accordingly, the suit should havebeen filed within three years from the time limit stipulated for theperformance of contract, as per the agreement.18. The plaintiff has filed the reply notice, dated 01.12.1989sent by the appellants 1 and 2 as Ex.A.5, apart from the returnedcovers, Exs.A.6 to A.10, postal acknowledgment cards for service ofnotice as Exs.A.11 and A.12. The settlement deed, dated 05.06.1956executed in favour of Rafia Bibi by one Kadhar Sayub, which has beenmarked as Ex.A.13. It is seen that Exs.A.14 and A.15 are legalnotices. Similarly, Ex.B.1 is the settlement deed, dated 03.03.1976executed in favour of Rafia Bibi by the first appellant and Ex.B.2 isthe settlement deed, dated 03.03.1976 executed in favour of RafiaBibi by the second appellant. The partition deed, relating to RafiaBibi and others, dated 29.07.1977 has been marked as Ex.B.3 andExs.B.4 to B.19 are property tax receipts, water tax and electricitycharge receipts, relating to the house.19. Before the trial court, it is seen that the respondent /plaintiff was examined as P.W.1. P.W.2 and P.W.3 are the attestors tothe agreement for sale, Ex.A.1. The appellants 1 and 2 were examinedas D.W.1 and D.W.2 and they disputed the agreement, Ex.A.1 and theclaim made by the plaintiff.20. It is clear from the available oral and documentary evidence,as contended by the learned counsel for the appellants, that the timelimit for the performance of contract was not extended, even as perEx.A.1. Therefore, even if Ex.A.1, agreement for sale, dated11.03.1987 is admitted as true and genuine, the suit could havebeen filed within three years from the last date fixed forperformance of the contract, as per Article 47 of the Limitation Act,1963. It is seen that the suit was filed only on 09.06.1992, afterthe expiry of the period of limitation. Therefore, in the light of https://hcservices.ecourts.gov.in/hcservices/ the decisions referred above, I hold that the suit filed by therespondent was not legally sustainable, in view of Article 47 of theLimitation Act, 1963 and as such, the appeal has to be allowed.21. In the result, the appeal is allowed and the impugnedJudgment and Decree passed by the court below is set aside. However,there is no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.tsvnTo1. The Principal Subordinate CourtErode. 2. The Section Officer, VR Section,High Court, Madras. A.S.No.305 of 1996mdr[co]sky/7.2.