S. Brahmanand & Ors Vs. K.
R. Muthugopal & Ors  Insc 583 (21 October 2005)
B. N. Srikrishna & C. K.
Thakker Srikrishna, J.
These two appeals by special leave impugn the common judgment of the High
Court of Kerala rendered in First appeals AS Nos. 393/97 (E) and 281/97 (E)
setting aside the decree made by the trial court in OS No. 647/95.
The appellants before us were the plaintiffs before the trial court in
Original Suit No. 647/95 and the respondents were the respective defendants in
the said suit. For the sake of convenience, the parties are hereinafter
referred to as they were arrayed in the suit before the trial court i.e. as
Plaintiffs and Defendants.
On 10.3.1989 an agreement was entered into between Defendants 1 and 2 (K.R.
Muthugopal and V. Rajan, respectively) on the one hand, and Plaintiffs 1, 2 and
3 (S. Brahmanand, S. Vinod and G. Ratna Bai, respectively), on the other hand,
for sale of the suit property which comprised two shops and one godown in Kozhikode.
The preambulatory part of the agreement makes it clear that as on the date of
the agreement a stranger, by name, Thazhekeepattu Moosakutty had filed two
suits O.S. Nos.
98/87 and 99/87 before the II Additional Sub Judge, Kozhikode, alleging that
there was an agreement to sell the suit property to him of which there was a
breach, and seeking specific performance of the alleged agreement of the sale
of the suit property. By the agreement of sale dated 10.3.1989 the parties
specifically recorded that, the Defendants had not made any such agreement of
sale of the suit property to the said Moosakutty. According to the Plaintiffs
and the Defendants, the suit property was originally let out to Bhatt family
(of which Defendants 3 & 4 are members) who refused to vacate it on the request
made by the Defendants 1 and 2 (i.e. the landlords).
A suit for eviction was filed against the said Bhatt family and a decree for
eviction was made. Even before the decree could be executed, two suits had been
filed in which Moosakutty alleged that the Plaintiffs had entered into an
agreement to sell the suit property to him and sought specific performance.
Agreement dated 10.3.1989 broadly referred to the developments and the fact
that as on the date of the agreement an interim injunction had been issued by
the civil court in O.S. Nos. 98/87 and 99/87 restraining the transfer of the
suit property to third parties. The agreement shows that the parties were well
aware of the pending litigation and yet the Plaintiffs (purchasers) under the
agreement had offered to purchase the same for a total consideration of Rupees
six lakhs only, which was accepted "subject to the restrictions contained
in the interim orders mentioned above".
Clauses (1), (3), (5) and (9) of the agreement are relevant and are reproduced
"(1). That the first parties agreed to sell and the second parties
agree to purchase the said properties for a total consideration of
Rs.6,00,000/- (Rupees six lakhs only) immediately after the interim order in
O.S. 99/88 and O.S. 98/88 imposing restriction on alienation is evicted by the
Court." "(3) That the second parties shall tender the valuable amount
of Rs.5,78,000/- (Rupees five lakh seventy eight thousand only) to the first
parties immediately on the termination of the proceedings in court as mentioned
above, when the first parties shall cause the sale deed executed and registered
in favour of the second parties with all the valid title deeds." "(5)
That the sale would be complete when the parties comply with the conditions
herein." "(9) That the first parties do hereby covenant undertake and
make the second party believe that the first parties have good title to the
said properties and it is free from all encumbrances, charges attachments,
claims and demands whatsoever and is not affected by any notice or scheme for
acquisition or requisition proceedings apart from the temporary legal
impediment imposed on transfer in O.S. 98/88 and O.S. 99/88 mentioned above and
if there is found any defect in title the first parties shall be liable to pay
back all money received from the second parties along with all damages incurred
by the second parties of such defects of title of the first parties. It is also
decided that the advance amount will be the first charge over the
properties." On 10.6.1992 the suits filed by Moosakutty, O.S. Nos. 98/87
and 99/87 were dismissed and interim orders granted therein stood vacated.
Though, Moosakutty made an application for continuation of the injunction
order till he was able to file an appeal, this prayer was rejected by the civil
court, but the order of status quo continued for a period of two weeks from the
date of dismissal of the suits i.e. upto 24.6.1992.
On 11.6.1992 the Plaintiffs were put in possession of the godown by one
Dandayudhan, who was the constituted attorney of Defendants 1 and 2.
On 18.6.1992, First Defendant addressed a letter to the First Plaintiff and
what he said therein is very material. He said:
"Dear Brahmanand, Trust this will find you all quite well. I am in
receipt of your letter-dated 12.6.92. It is indeed gratifying to know that the
two suits filed by Bhatt have been dismissed.
Dandayudhan gave me information 10th itself and I immediately intimated him
to hand over keys of the godown to you as a token of our intention to fulfill
our commitments under the agreement. Personally, I am not for delaying matters
However, it appears that Bhatt has filed an injunction petition to get
injunction till appeal is filed.
My friends here are saying that we might as well await the result of the
petition before going ahead with registration.
Otherwise it may create further problems. Knowing Bhatt, I am sure you will
agree that it is advisable to wait for things to be more clear, now that you
are in possession of the godown.
It is a pity that Bhatt can got hold of people like Moosakutty to harass us.
I look forward to coming to Calicut shortly along with Rajan, to conclude the
registration as soon as I get information from Dandayudhan in the matter.
In the meanwhile please be in touch with Dandayudhan With best wishes, Yours
faithfully, Sd/- (K.R. Muthugopal)" The Proceedings in the Trial Court and
the High Court:
On 20.6.1992, one R. Latha, sister of Defendant 4 filed a suit O.S. No.
382/92 in which she claimed partition in respect of the suit property, with
a prayer to restrain the Defendants "from alienating by way of sale,
mortgage or lease and/or transferring possession of the plaint schedule
property in any manner to any other persons and from causing any loss or damage
in any manner to the buildings standing in the plaint schedule property".
An order was passed therein on 2.7.1992 directing "to maintain status quo
until further orders".
On 24.8.1995, Defendants 1 and 2 abruptly cancelled the power of attorney in
favour of Dandayudhan. During the night of 31.8.1995 possession of the suit
godown was taken over by the Defendants by breaking open the locks. According
to the Plaintiffs, on 1.9.1995 when the First Plaintiff went to the shop, as
usual, he found the defendants and other strangers present therein, who tried
to attack him and caused apprehension about his life. An altercation followed
during which the First Plaintiff was told that Defendants 1 and 2 had sold the
suit property to Defendants 3 and 4 and that the Plaintiffs may seek their
remedy anywhere. This gave an apprehension to the Plaintiffs that the
Defendants were intent upon refusing to execute and register the document and
complete the conveyance of the suit property to them. With this apprehension,
the Plaintiffs made enquiries in the office of the Sub Registrar and learnt
that the suit property had already been sold by Defendants 1 and 2 to
Defendants 3 and 4 during the period from 30.8.1995 to 31.8.1995. On 4.9.1995
the Plaintiffs issued a notice to Defendants 1 and 2 calling upon them to
execute the sale deed and complete the conveyance of the suit property to them.
The Plaintiffs brought a suit for specific performance on 15.9.1995, which is
numbered as O.S. No. 647/95.
The Bhatts, who were alleged to be the purchasers of the property, were also
impleaded as Defendants 3 and 4 to the suit. On 18.10.1995, Moosakutty's appeal
was dismissed as settled out of court and all interim orders made therein came
to be vacated. On 2.1.1996, Lata's suit O.S. No. 382/92 was dismissed for
non-payment of court fee.
The Subordinate Judge, Kozhikode tried Original Suit No. 647/95 and rendered
the judgment on 31.3.1997. The following issues were framed by the trial court:
"1. Whether there was a sale agreement between the plaintiffs and
defendants 1 and 2 on 10.3.89 in respect of the plaint schedule property as
2. Whether defendants 3 and 4 are bona fide purchasers of the plaint
schedule property without notice of the sale agreement?
3. Whether the plaintiffs are entitled to specific performance of the sale
agreement as alleged?
4. Reliefs and costs? Additional Issue :
5. Whether the suit is barred by limitation?" With regard to Issue No.
1 the trial court discussed the evidence in detail and came to the conclusion
that the defence set up by the Defendants was wholly unbelievable and that from
the evidence adduced in the case, it could safely be found that the agreement
dated 10.3.1989 in respect of the suit property had been executed by Defendants
1 and 2, as contended by the Plaintiffs, upon payment of consideration of Rs.
22,000/- as advance, as recited in the document. The trial court also held that
there was clinching evidence to prove that Defendants 1 and 2 had put the
Plaintiffs in possession of the godown, after the 10.3.1989 agreement in June,
With regard to the second issue, the trial court totally disbelieved the
defence set up by the defendants and held, "thus the evidence only leads
us one way, that is to the fact that defendants 3 and 4 had due knowledge of
the sale agreement, prior to their entering into a deal for purchase of the
plaint schedule properties. It is also clear from the evidence that the sale
deeds were not taken by them in good faith." The trial court held in
favour of the Plaintiffs on all issues. According to the trial court, the suit
was for specific performance of an agreement in respect of which no date had
been fixed and, therefore, the cause of action would arise only when the
Plaintiffs had notice that the performance had been refused. The trial court
was of the opinion that the second part of Article 54 of the Limitation Act,
1963 was applicable and since the Plaintiffs notice of the refusal of
performance by the Defendants 1 and 2 arose only on 31.8.95/ 1.9.1995, the suit
filed on 15.9.1995 was within limitation. On this finding, the learned judge of
the trial court decreed the suit as prayed for, since the learned judge was
satisfied that the Plaintiffs were willing to perform their part of the
agreement and the defendants were not.
On appeal to the High Court, the High Court agreed with the trial court
judgment on all the issues, but differed only on the finding with regard to
limitation. The High Court took the view that the agreement dated 10.3.1989 was
one in which a date was fixed for performance and, therefore, the suit was
hopelessly barred by limitation. In this view of the matter, the High Court set
aside the decree and dismissed the suit.
Thus, on all the issues that were raised in the suit, the findings in favour
of the Plaintiffs were confirmed by the High Court in appeal. The only question
which has been argued before us, and which we need to consider is the issue of
Mr. R.F. Nariman, learned counsel for the Plaintiffs vehemently contended
that the High Court was wrong in reversing the decree on the ground of
limitation. His submissions were as follows.
On reading the agreement of 10.3.1989 as a whole, it is clear that no date
for specific performance was fixed until the cloud on the vendors' title was
removed. In other words, the date of performance was only after the dismissal
of the two suits. This meant that the date fixed for performance would arise
only after the final dismissal of Moosakutty's suits and the appeals therein.
In the alternative, he contended that letter dated 18.6.1992 can be read to
show the true common intention of the parties, which was that the date of
performance was extended until the difficulty created by Moosakutty's appeal
and the injunction therein was resolved and that "it is advisable to wait
for things to be more clear". He, therefore, contends that this letter
would suggest that whatever the parties might have originally intended, after
the letter of 18.6.1992 the time had been extended. That even if clause (1) of
the agreement alone must be looked at, vacating an injunction is not a certain
event, and, therefore, the first part of Article 54 of the Limitation Act,
1963 would not apply.
In his submissions, the catena of judgments ending with the judgments of
this Court holding that the first part of Article 54 of the Limitation Act,
1963 would apply to an agreement wherein no date was fixed, but the
performance was with reference to a future contingency, has been wrongly
decided and we should refer the matter to a larger Bench for an authoritative
exposition of the law. The expressions "date" and "time"
have been used differently, as evident from a contrast of the language used in
Articles 53 and 54 of the Limitation Act,
1963. Finally, that even if the two expressions are interchangeable, the
construction of the expression "date" is ambiguous and in such
circumstances the interpretation of the statute must be in favour of preserving
the remedy and against the dismissal of a suit.
Mr. Rao, learned counsel, who appeared for Respondents 3 and 4 (the Bhatt
family) contends that the expressions "date" and "time"
used in the Schedule to the Limitation Act
are interchangeable; the maxim id certum est quod certum reddi potest ('That is
certain which can be reduced to a certainty.') clearly applies to a situation
like this; the expression "date" is interchangeable with
"day" or "time". He relied on a series of judgments,
including two judgments of this Court, in support of his contention. He also
refuted the argument that there was any ambiguity in interpreting the language
used in Article 54 of the Limitation Act, 1963;
that the High Court had on a careful reading of the agreement ascertained the
intention of the parties, and there was no reason for this Court to take any
different view of the matter.
It would be useful to set out the provisions of Article 54 before critically
appraising the arguments presented to us on both sides.
"Article Description of suit Period of limitation Time from which
period begins to run 54 For specific performance of a contract.
Three years The date fixed for the performance, or, if no such date is
fixed, when the plaintiff has notice that performance is refused." Though,
at first blush, it may appear that the use of the expression "date"
used in this Article of the Limitation Act,
1963 is suggestive of a specific date in the calendar, we cannot forget the
judicial interpretation of this expression over a long period of time.
Different High Courts took different views of the matter, which has been a
subject matter of controversy. Some interpreted the expression strictly and
literally, while others have taken an extended view.
In Kashi Prasad v. Chhabi Lal and Ors. the High Court dealing with Article
113 of the Limitation Act, 1908, which was in pari materia with Article 54 of
the Schedule to the Limitation Act,
1963, took the view that the force of the word "fixed" implies
that the date should be fixed definitely and should not be left to be gathered
from surrounding circumstances of the case.
It must be a date clearly mentioned in the contract whether the said
contract be oral or in writing.
In Alopi Parshad and Anr. v. Court of Wards and Ors. , also the court was
concerned with Article 113 of the Limitation Act, 1908. A suit for specific
performance was brought on an agreement of sale where the time for performance
of the contract was "after passing of a decree". Though no date for
performance was fixed for the agreement, the trial Court had opined that time
must be held to have begun to run from the date on which the decree was passed
in view of the maxim certum est quod certum reddi potest ("That is
sufficiently certain which can be made certain"). The Lahore High Court
was of the view that statutes of limitation must be strictly construed and that
the respondents before it had failed to bring a case specifically within the
purview of the first part of Article 113 and that the case did not fall within
the first part but fell within the second part of Article 113. The judgment of
the Allahabad High Court in Kashi Prasad (supra) was approvingly referred to
and followed. This judgment was taken in appeal before the Privy Council and
approved by the Privy Council in Lala Ram Sarup v. Court of Wards .
In Kruttiventi Mallikharjuna Rao v. Vemuri Pardhasaradhirao , a contract was
entered into on 18.7.1934, and the vendor promised to execute the sale deed
when both his brothers who were studying elsewhere returned to the village for
the next vacation, i.e., in May-June 1935. The High Court held that this was
"too indefinite to be regarded as fixing a "date" for the
performance of the contract and the period of limitation must be computed from
the date of refusal to perform".
In R. Muniswami Goundar (died) and Anr. v. B.M. Shamanna Gouda and Ors.
interpreting the expression "date fixed" in Article 113 of the
Limitation Act, 1908 the doctrine of id certum est quodi certum reddi potest
was pressed into service along with its exposition in Broom's Legal Maxims and
it was held that it was wide enough to include a date which though at the time
when the contract was made was not known, but could be ascertained by an event
which subsequently was certain of happening.
In Hutchegowda v. H.M. Basaviah , upholding the view in Muniswami Goundar
(supra), it was held that an agreement to execute the sale deed "after the
'Saguvali chit' is granted fell within the first part of Article 113 of the
Limitation Act, 1908.
In Purshottam Sava v. Kunverji Devji and Ors. the judgment of the Madras
High Court in R. Muniswami Goundar (supra) was followed and it was held that
the expression "date fixed" can be interpreted as meaning either the
date fixed expressly or a date that can be fixed with reference to a future
event which is certain to happen.
In Lakshminarayana Reddiar v. Singaravelu Naicker and Anr. it was held that
the phrase occurring in the third column of Article 113 of the Limitation Act,
1908 "the date fixed for the performance" must be not only a date
which can be identified without any doubt as a particular point of time, but it
should also be a date which the parties intended should be the date when the
contract could be performed.
In Shrikrishna Keshav Kulkarni and Ors. v. Balaji Ganesh Kulkarni and Ors. ,
the agreement for sale of a property stated that the sale was to be executed
after the attachment which the creditors had brought was raised. Noticing the
fact that there was absence of any indication as to when the attachment would
be raised, the court treated it as a case in which no date was fixed for
performance of the contract and, therefore, falling within the second part of
Article 54 of the Limitation
P. Sivan Muthiah and Ors. v. John Sathiavasagam arose from a suit for
specific performance with an alternative prayer for recovery of advance paid
under the agreement of sale. Referring to Article 54 of the Limitation Act,
1963 the court took the view that the expression "date fixed"
could mean either the date expressly fixed or the date that can be fixed with
reference to a future event, which is certain to happen. If the date is to be
ascertained depending upon an event which is not certain to happen, the first
part of Article 54 would not be applicable, and in such an eventuality, it is
only the latter part of Article 54 that could be invoked by treating it as a
case in which no date had been fixed for performance and the limitation would
be three years from the date when the plaintiff had notice that performance is
refused. This was a case where performance was due after the tenants in the
property had been vacated. The court took the view that since eviction of the
tenants was an uncertain event, the time must be deemed to have run only from
the date when the plaintiffs had notice that the performance had been refused
by the defendants.
In Ramzan v. Hussaini a suit was filed for specific performance of a
contract of sale in respect of a house. The property was mortgaged and
according to the plaintiff, the defendant had agreed to execute a deed of sale
on the redemption of the mortgage by the plaintiff herself, which she did in
1970. In spite of her repeated demands, the defendant failed to perform his
part, which resulted in a suit being filed. The question that arose before this
Court was whether the agreement was one in which the date was "fixed"
for the performance of the agreement or was one in which no such date was
fixed. This Court answered the question in the affirmative by holding that,
although a particular calendar date was not mentioned in the document and
although the date was not ascertainable originally, as soon as the plaintiff
redeemed the mortgage, it became an ascertained date. This Court also agreed
with the view expressed in the Madras High Court in R. Muniswami Goundar
(supra) and held that the doctrine id certum est quod certum reddi potest is
clearly applicable. It also distinguished Kruttiventi Mallikharjuna Rao (supra)
and Kashi Prasad (supra) as cases that arose out of their peculiar facts.
In Tarlok Singh v. Vijay Kumar Sabharwal the parties by agreement determined
the date for performance of the contract, which was extended by a subsequent agreement
stipulating that the appellants shall be required to execute a sale deed within
15 days from the date of the order vacating the injunction granted in a suit.
The suit was initially dismissed and, thereafter, a review application was also
dismissed as withdrawn on 22.3.1986. On 23.12.1987 a suit was filed for
perpetual injunction. In that suit, an application came to be made under Order
6 Rule 17 CPC for converting it into a suit for specific performance of an
agreement dated 18.8.1984. This amendment was allowed on 25.8.1989. It was held
that since the amendment was ordered on 25.8.1989, the crucial date for
examining whether the suit was barred by limitation was 25.8.1989. Since the
injunction was vacated when the original suit was initially dismissed, and the
review application came to be dismissed on 22.3.1986, it was held that it was a
situation covered by the first part of Article 54 and, in any event, on
25.8.1989 the suit was barred by limitation.
Mr. Nariman, learned counsel strongly urged that, the view taken by the
Allahabad High Court in 1933 and followed by the Lahore High Court in 1938 had
been expressly affirmed by the Privy Council in its judgment in Lala Ram Sarup
(supra). Unfortunately, in none of the judgments of the High Courts decided
subsequently was the fact noticed that the decision of the Lahore High Court
had been expressly affirmed by the Privy Council, nor was this noticed in the
two judgments of this Court in Ramzan (supra) and Tarlok Singh (supra). Mr.
Nariman contended that if the Privy Council judgment had been noticed, then
perhaps none of the judgments of the High Court would have been able to take a
contrary view on the interpretation of Article 54 of the Limitation Act,
1963, since the Privy Council had already interpreted Article 113 of the
Limitation Act, 1908, which was in pari materia. He, therefore, urged that we
should take a different view of the matter, and if we feel ourselves bound by
the judgments of this Court in Ramzan (supra) and Tarlok Singh (supra), the
matter should be referred to a larger Bench.
The argument, thus, presented, no doubt, is attractive, but upon deeper
consideration, we decline to follow the course suggested by the learned counsel
for two reasons. Judgments which have held the field for a fairly long time
ought not to be disturbed unless there is a prepondering necessity dictated by
the demands of justice to overturn them. It is true that no judgment after 1940
seems to have noticed that the judgment in Alopi Parshad (supra) delivered by
the Lahore High Court was expressly affirmed by the Privy Council in Lala Ram
Sarup (supra). It is also possible that if this fact had been brought to the notice
of the High Courts, the course of the decisions might have taken a different
turn. Perhaps, the view of this Court might also have been different, if its
attention was drawn to the judgment of the Privy Council. Nonetheless, we feel
that the judgments in Ramzan (supra) and Tarlok Singh (supra) being judgments
of a coordinate Bench, we are bound by the observations therein. We do not see
the necessity of referring the matter to a larger Bench at this juncture since
we are of the view that for the disposition of this case it is not necessary to
go into the larger issue urged by Mr. Nariman. We are satisfied that the
Plaintiffs are entitled to succeed on an altogether different ground arising
from the facts of the case.
A careful perusal of the letter dated 18.6.1992 leaves one in no doubt as to
what exactly the Defendants had in mind when this letter was written.
Doubtless, in the original agreement dated 10.3.1989, the date for
performance had been fixed differently under clauses (1) and (3). Clause (1) stated
that the sale would take place "immediately after the interim order in
O.S. 99/88 and 98/88 imposing restriction on alienation is vacated by the
court". These two suits were the suits of Moosakutty. Clause (3), however,
said that the time for performance would be "immediately on the
termination of the proceedings in court as mentioned above, when the first
parties shall cause the sale deed executed". Perhaps, in the light of the
authorities cited at the Bar ending with the two judgments of this court in
Ramzan and Tarlok Singh (supra), it is possible to say that the expression
"date fixed" need not be a calendar date, but time period fixed with
reference to a certain event, the happening of which is definite. The High
Court seems to have judged by this test and reversed the trial court's judgment
and dismissed the suit.
In our judgment, the High Court went wrong in not giving full effect to the
import of letter dated 18.6.1992. What does this letter convey? By the time
this letter was written, the two suits filed by Moosakutty had been dismissed
by the trial court, but he had moved an application for interim relief, after
obtaining a status quo order from the trial court. In the light of this
situation, the Defendants 1 and 2 represented to the Plaintiff 1 and assured
him that they (Defendants 1 and 2) still have the intention of standing by
their promise and as a token of their intention to fulfill their commitments
under the agreement, Dandayudhan had been informed immediately to hand over the
keys of the godown to the Plaintiffs. Finally, the letter says:
"Personally, I am not for delaying matter any more.
However it appears that Bhatt has filed an injunction petition to get
injunction till appeal is filed.
My friends here are saying that we might as well await the result of the
petition before going ahead with registration. Otherwise it may create further
Knowing Bhatt, I am sure you will agree that it is advisable to wait for
things to be more clear, now that you are in possession of the godown."
Further, the letter says:
"I look forward to coming to Calicut shortly along with Rajan, to
conclude the registration as soon as I get information from Dandayudhan in the
matter." Both the parties knew that the suits, which were dismissed on 10.6.1992
resulting in the interim injunction granted by the trial court being vacated,
were technically filed by Moosakutty, but that Moosakutty had been put up by
the Bhatts (Defendants 3 and 4), who were unsuccessful in the eviction petition
against them. In these circumstances, the Defendant's representation to the
Plaintiffs would amount to a request for forbearance from insisting on
performance or pursuing legal action pursuant thereto until the things
"become more clear".
Thus, this was a situation where the original agreement of 10.3.1989 had a
"fixed date" for performance, but by the subsequent letter of
18.6.1992 the Defendants made a request for postponing the performance to a
future date without fixing any further date for performance. This was accepted
by the Plaintiffs by their act of forbearance and not insisting on performance
forthwith. There is nothing strange in time for performance being extended,
even though originally the agreement had a fixed date. Section 63 of the Indian Contract
Act, 1872 provides that every promisee may extend time for the performance
of the contract. 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.
Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. and Anr.
was a similar instance where the contract when initially made had a date fixed
for the performance of the contract but the Court was of the view that "in
the events that happened in this case, the agreement in question though started
with fixation of a period for the completion of the transaction became one
without such period on account of the peculiar facts and circumstances already
explained and the contract, therefore, became one in which no time fixed for
its performance." and held that was originally covered by the first part
of Article 113 of the Limitation Act, 1908 would fall under the second part of
the said Article because of the supervening circumstances of the case.
In the present case, it was only on 31.8.1995/1.9.1995 that the plaintiffs
realised that there was a refusal to perform, when they were forcibly evicted
from the godown. It is only then that the Plaintiffs had notice of refusal of
performance. Counted from this date, the suit was filed within 15 days and,
therefore, was perfectly within the period of limitation.
We, therefore, disagree with the High Court on this issue of limitation and
hold that the suit filed by the Plaintiffs was within the period of limitation
and was not liable to be dismissed under Section 3 of the Limitation Act. All
other issues concurrently have been held in favour of the Plaintiffs. Hence,
there is no impediment to the Plaintiffs succeeding in the suit.
In the result, we allow the appeals and set aside the impugned judgment of
the High Court and affirm the decree made by the trial court in favour of the
Appellants-Plaintiffs. Considering the utterly dishonest defence raised by the
Defendants and the fact that Defendants 3 and 4 colluded with Defendants 1 and
2, we think that the original Defendants 1 to 4 (present Respondents in both
the appeals), need to be imposed with costs. Defendants 1 and 2 shall together
pay a sum of Rs. 50,000.00 and Defendants 3 and 4 shall together pay a sum of
Rs. 50,000.00 to the appellants.