1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 943 OF 2008 with CIVIL APPLICATION NO. 2403 OF 2008 Lalkhan Gulabkhan Pathan, ) Age: 58 years, Occupation: Service, ) resident of Malang Housing Society, ) Behind Utsam Mangal Karyhalaya, Nashik ) Road, Nashik. ).. Appellant (Orig. Plaintiff) Vs. 1. Shri Shivkumar Mahadeo Gupta ) Age: adult, Occupation: Business, ) resident of Gokul Nagar, Taluka ) Bhiwandi, District Thane. ) 2. Shri Harish Parasnath Gupta, ) Age: 36 years, Occupation: Business ) resident of 35/1/1, Rameshwar Nagar ) Ganmgapur Road, Anandvali, ) Nashik. )..Respondens 9Orig.Defendants) Mr. M.S.Karnik,Advocate, for the appellant. Mr. G.H.Keluskar, Advocate, for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 24th July, 2009 JUDGMENT 1. Heard the learned Counsel for the plaintiff/appellant and the 2 defendant No.2/respondent No.2. Though respondent/defendant No.1 is served, none has appeared. 2. It appears that defendant No.2 was holding power of attorney on behalf of defendant No.1, who wanted to develop his land. According to the plaintiff, on 7.10.2003, the defendant No.2 on behalf of defendant No.1 entered into an agreement to sell the suit land to him for consideration of Rs.4,91,000/-. Half of the amount was paid as earnest money. 25% amount was to be paid after completion of plastering and balance amount of 25% was to be paid at the time of execution of sale deed. As per the terms of the contract, the contract was to be completed within six months. The defendants issued a public notice on 11.4.2007 to the effect that they had decided to mortgage the suit property. Thereafter, on 18.4.2007, the plaintiff filed a suit for specific performance of the contract. On behalf of the defendants, preliminary objection was taken as to the tenability of the suit on the point of limitation. Detailed written statement is not filed. The learned trial Court framed preliminary issues. During the arguments, the plaintiff contended that on 16.10.2006, the defendant No.2 had delivered the possession of the suit property to him by executing a receipt. The learned trial Court however, did not give much importance to that receipt and held that the period of limitation would begin to run on expiry of six months, 3 from the date of agreement and the period of limitation would come to an end on 7.4.2007 while the suit is filed on 18.4.2007. In view of this, the suit came to be dismissed on the ground that it was barred by limitation. 3. As pointed out above, the plaintiff had contended that on 16.10.2006, possession was given to him by defendant No.2 by executing a receipt to that effect. That receipt was produced before the trial Court. The genuineness or otherwise of that receipt is yet to be decided. The learned Counsel for the respondent No.2 contended that actual possession was not given, but that receipt was given only for obtaining loan. Even if that be so, it would indicate that till 16.10.2006, the defendants were willing to complete the contract. Prima facie, it means that even though the period of six months was mentioned in the agreement for sale, that was not strictly adhered to by the parties and even after expiry of that period the parties wanted to continue with the contract. If it is so, the period of limitation may begin only when there is a refusal to perform the contract and according to the plaintiff, he came to know about that refusal on publication of notice on 11.4.2007 and immediately the suit was filed. 4 4. In view of the circumstances and with consent of the Counsel for the parties, this Appeal is allowed. The impugned order passed by the trial Court is hereby set aside and the Special Civil Suit No.140 of 2007 is hereby remanded back to the trial Court with a direction to proceed with the same as per law. The defendants shall be given opportunity to file detailed written statement. The question of limitation shall be decided along with other issues after full trial. 5. R & P be returned back. 6. As the Appeal itself is disposed of, C.A. no.2403 of 2008 stands disposed of accordingly. (J.H.BHATIA,J.)