Vs. Siddaramakka  INSC 472 (29 March 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
1996 AIR 1960 JT 1996 (4) 324 1996 SCALE (3)704
O R D
have heard learned counsel on both sides.
appellant had two sale deeds dated April 24, 1900 and July 20, 1968, an executed by the respondent transferring the schedule
property. On the later data, i.e., July 20, 1968, an agreement of reconveyance was
also executed by the appellant with a stipulation that in the event of the
respondent repaying Rs. 5000/- within eight years from that date in one lump
sum, she would be entitled to have the sale deed executed and registered in her
the case of the respondent that before the expiry of eight years, some time in
June 1976, she had approached the appellant but he avoided the reconveyance.
Consequently, she requested her lawyer to issue a notice which came to be
issued to the appellant to be present before the sub- Registrar to receive the amount
and execute the sale deed but he failed to do that. On July 19, 1976 The sub-Registrar had issued notice
calling upon the appellant to be present in the sub- Registrar's office.
Although he received the notice, he was not present to receive the amount and
facilitate registration of the sale deed on July 20, 1976.
the suit for specific performance came to be filed.
trial Court, after adduction of evidence by both the parties had accepted the
plea of the respondent that she had offered payment within the limitation but Thimmappa
had avoided the receipt thereof. The appellate Court reversed the decree on the
finding that the time is the essence of contract. The deed of reconveyance
stipulates eight years period from the date of execution of the sale deed and
since the respondent had not obtained reconveyance within that period, the
period of limitation expired by efflux of time. Therefore, the suit was barred
by limitation. The High Court of Karnataka in Second Appeal No.6 of 1988 by judgment
and decree dated January
23, 1995 reversed the
decree of the appellate Court and restored that of the trial Court. Thus this
appeal by special leave.
learned senior counsel for the appellant, contended that in view of the
specific recital in the deed of reconveyance that the respondent had to have
the reconveyance executed within eights years from July 20, 1968 and since she
had not had the conveyance executed, the suit is barred by limitation. We find
no force in the contention.
settled law that unless the deed of agreement of sale stipulated a date for
performance, time is not always essence of the contract. It would be seen that Thimmappa
had the land purchased from the respondent and there was an agreement of reconveyance
on condition that the respondent should return the consideration paid under the
sale deeds, viz., Rs.5,000/- within eight years from that date. The appellant
had gone to the extent of even denying the executing of reconveyance.
Therefore, the High Court has gone into the question of the probability of the
respondent approaching the appellant for reconveyance before the expiry of the
limitation. The High Court has, therefore, rightly gone into the question
whether there was an agreement of reconveyance and whether the respondent had
performed her part of the contract in seeking reconveyance. That being the
material questions which hinge upon the discretion to be exercised by the Court
to enforce for specific performance f the contract, the appellate Court had not
adverted to that material part. But merely it relied upon the plea of
limitation. Under those circumstances, the High Court has not committed any
error of law in interfering with the decree of the appellate Court and
considering relevant circumstantial evidence that unless the respondent had in
the first instance approached and the appellant avoided the receipt of the
consideration and execution of sale deed, the respondent had no occasion to
approach an advocate to get the notice issued asking the appellant to be
present before before the Sub-registrar for execution of sale deed under
Article 54 of the Schedule to the Limitation Act 21 of 1963, limitation for
specific preference begins to run from the date fixed in the contract or from
the date of refusal to execute the sale deed. Since time is not the essence of
the contract, the respondent had offered the payment of the amount before the
expiry of the date of reconveyance but the appellant had refused to reconvey
the same. The cause of action arose an expiry of eight years from the date of
execution of later sale deed i.e. July 20, 1973. The appellant by conduct refused
to execute the sale deed on July 19 1976
the suit was filed on July
20, 1976. The suit was
filed within limitation from the date of refusal, i.e., July 19, 1976, i.e., next day. It is not a case
of appreciation of evidence by the High Court in Second Appeal but one of
drawing proper inference from proved facts which the first appellate court has
failed in law to draw proper inference from proved facts and non application of
law in the proper perspective. We, therefore, hold that the suit was filed
within limitation. We do not find any illegality warranting our interference.
appeal is accordingly dismissed. No costs.