1 sa1190-05-A.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.1190 OF 2005 Govind Kabra Badricha ..Appellant Vs. Kashinath Krishna Gavari & anr. ..Respondents ......... Mr.A.A.Kumbhakoni i/b.Mr.S.G.Karandikar, for appellant ......... CORAM: R.G.KETKAR, J. DATE : 2nd AUGUST, 2010. P.C. : This appeal is preferred by original plaintiff challenging the judgment and decree dated 7 th May, 2005 passed by the learned IIIrd Addl. District Judge, Thane in Civil Appeal No.47 of 2001 arising from the judgment and decree dated 6 th November, 1995 passed by the learned Civil Judge Senior Division, Thane in Special Civil Suit No.171 of 1994. By these judgments, the courts below dismissed the suit instituted by the appellant – plaintiff for specific performance of agreement of sale dated 6 th August, 1982. The parties shall hereinafter be referred as per their status in the trial court. 2] Plaintiff instituted suit for specific performance of agreement of sale dated 6 th August, 1982. By that agreement, defendants agreed to sell lands bearing survey Nos.14/1, 106/A, 95/1 and 119 situate at Mauje Usgaon, 2 sa1190-05-A.sxw Taluka Bhiwandi, District Thane for Rs.18,000/- (for short “suit lands”). Since the vendors had acquired the suit lands under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the Act”), clause 6 of the agreement provided that before effecting the sale, prior permission under the Act is necessary. The said clause provided that the vendors and vendee were to jointly make application to Sub-Divisional Officer, Bhiwandi, District Thane (for short `S.D.O.’). All the other permissions were to be obtained by the vendee and the vendors were to extend the necessary co-operation. 3] It is the case of plaintiff that defendant no.1 Krishna and others made application dated 17 th August, 1982 for permission. The statements of defendant no.1 Krishna and plaintiff Govind were recorded on 10 th September, 1982. By order dated 5 th January, 1989, S.D.O. granted permission under Section 43 of the Act by imposing certain conditions. One of the conditions was that the purchaser should execute a sale deed within one year from the date of issue of the order and intimate S.D.O. of having done so within fortnight. Subsequently, by application dated 3 rd January, 1990 plaintiff applied for extension of time which was originally fixed in the order dated 5 th January, 1989. By order dated 23 rd April, 1992 the time was extended for a period of one year from the date of the order. Plaintiff made another application on 5 th January, 1990 for correcting the typographical error with regard to survey No.106/A. Instead of survey No.106/A in the order dated 5 th January, 1989, survey No.196A was mentioned. Pursuant to the said application, Corrigendum was issued on 23 rd April, 1992. 3 sa1190-05-A.sxw 4] Plaintiff thereafter issued notice on 13 th November, 1992 calling upon defendants to execute sale deed. Since there was no compliance, plaintiff instituted the suit on 17 th February, 1994 for specific performance of the said contract. Though the defendants were duly served, they failed to participate in the trial. By order dated 29 th June, 1994 below exhibit 1, suit came to be proceeded ex-parte against defendants. Plaintiff examined himself at exhibit 13 and one Vasant Gosavi attached to the office of Sub-Registrar, Bhiwandi at exhibit 34. 5] By the impugned judgment and order dated 6 th November, 1990, the learned trial Judge dismissed the suit. The learned trial Judge noted that pursuant to the agreement of sale dated 6 th August, 1982, application for permission was made on 17 th August, 1982. Initially, the permission was refused. Plaintiff preferred Revision No.148 of 1988. However, defendant No.1 Krishna expired in the year 1985. His widow Anusaya died in the year 1990. In the notice dated 13 th November, 1992, plaintiff came out with the case that he kept sale deed ready and also purchased stamp papers worth Rs.4375/- on 10 th April, 1989 for completing the transaction. Despite this, defendants failed and neglected to perform their part of contract. It is the case of plaintiff that defendants did not sign the document and defendants avoided to execute the sale deed on 10 th April, 1989. The trial court also disbelieved the diverse payments made by plaintiff towards the purchase price fixed under the agreement of sale. The trial court, therefore, came to the conclusion that though plaintiff came with the case that defendants avoided to complete the transaction, it really amounted to refusal on their part. Though, defendants’ refusal was on 10 th April, 1989, the suit was 4 sa1190-05-A.sxw instituted on 17 th February, 1994. In view of this, the learned trial Judge ultimately dismissed the suit. 6] Against this judgment, plaintiff preferred appeal which was dismissed by the learned District Judge. The learned District Judge held that defendants refused to perform their part of contract on 10 th April, 1989. The cause of action arose on 10 th April, 1989 and the suit was instituted in the year 1994 which was obviously not within the limitation. The learned District Judge accordingly dismissed the appeal. 7] Mr.Kumbhakoni, learned counsel for plaintiff, submitted that despite service of suit summons, defendants did not participate in the trial. Plaintiff’s evidence remained unchallenged and, therefore, the courts below ought to have decreed the suit. The courts below committed error in holding that defendants refused to execute sale deed in the year 1989 and, therefore, the suit instituted by plaintiff was time barred. According to him, the avoidance by defendants to execute the sale deed will not amount to refusal. Plaintiff was all along ready and willing and is still ready and willing to perform his part of contract. He further submitted that under Section 20 of the Specific Relief Act, 1963, though the jurisdiction to decree the specific performance is discretionary, the discretion of the court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a court of appeal. 8] I have considered the contentions raised by the learned counsel for plaintiff. The undisputed facts are that the agreement of sale was executed 5 sa1190-05-A.sxw by 6 th August, 1982. Pursuant to the clause 6 of the said agreement, an application was made on 17 th August, 1982 before the S.D.O., Bhiwandi for obtaining permission. The statement of defendant No.1 Krishna and plaintiff was recorded on 10 th September, 1982. By order dated 5 th January, 1989 permission to sell under Section 43 of the Act, was granted subject to certain conditions. One of the conditions was that the purchaser (plaintiff herein) should execute sale deed within one year from the date of issue of order and intimate the S.D.O. of having done so, within fortnight. Subsequently, an application was made on 3 rd January, 1990 by the plaintiff for extension of time which was fixed in the order dated 5 th January, 1989. By order dated 23 rd April, 1992 time was extended for a further period of one year from the date of order which expired on 22 nd April, 1993. 9] It is the case of plaintiff that he kept the sale deed ready as also purchased stamp papers worth Rs.4,375/- on 10 th April, 1989. It is his further case that defendants avoided to execute the sale deed on 10 th April, 1989. In my opinion, the cause of action for institution of suit for specific performance of agreement arose on 10 th April, 1989. Instead of issuing notice to defendants calling upon them to execute the sale deed and on their failure instituting suit for specific performance, plaintiff went on making applications on 3 rd January, 1990 and 5 th January, 1990. Plaintiff issued notice on 13 th November, 1992 and instituted suit on 13 th February, 1994 which was clearly time barred. The courts below rightly came to the conclusion that the suit instituted by plaintiff was not within limitation. Even otherwise, as noted earlier, the agreement of sale was executed on 6 th August, 1982 and no time limit was fixed for completing the transaction. The 6 sa1190-05-A.sxw notice was issued by plaintiff on 13 th November, 1992 and suit was instituted on 13 th February, 1994. Having regard to Section 46 of the Contract Act, when no time limit is fixed, plaintiff ought to have instituted suit within a reasonable time. Considering this, it cannot be said that 12 years period can be construed as a reasonable time. Equally, having regard to the facts and circumstances of the case, I do not find any substance in the contention based upon Section 20 of the Specific Relief Act, 1963. 10] I do not find that the courts below committed any error in dismissing the suit. Second Appeal does not involve any substantial question of law. The same is dismissed with no order as to the costs. [R.G. KETKAR, J.]