hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE SECOND APPEAL NO. 628 OF 1989 Shahabuddin Akabar Mulla, Age 51, Occupation : Agriculture, Resident of Wategaon, Taluka Walwa, District Sangli ... Appellant Versus Krishna Bapu Phonde, Occupation Service and Agriculture, Resident of Wategaon, Taluka Walwa, District Sangli. ... Respondent Mr. Bhushan A. Walimbe, Advocate for the appellant. Mr. Pratap Patil for the respondent. CORAM : A.S. OKA,J. DATED : NOVEMBER 17, 2011 ORAL JUDGMENT : Heard the learned counsel for the appellant and learned counsel for respondent. 2. The appellant is the original defendant and the respondent is the original plaintiff. The facts leading to the filing of Second Appeal will have to be set out in brief. The suit property is described in Paragraph 1 1 hvn of the plaint. The suit is for specific performance of the agreement for sale dated 7th August, 1973 in respect of the suit property. The suit agreement was admittedly executed by the appellant in favour of the respondent. According to the case of respondent, at the time of execution of the agreement, the entire consideration of Rs.400/- was paid. The agreement provided that permission of the collector under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1948 (hereinafter referred to as "Said Act") was necessary for execution of the sale deed. In the plaint it is stated that the sale was to be executed after permission of the Collector was obtained. It is alleged in the plaint that amendment was made to the said Act and as per the amendment, it was not necessary to obtain permission. Therefore, notice dated 14th August, 1978 was issued by the respondent to the appellant calling upon the appellant to execute the sale deed. As the sale deed was not executed, the suit for specific performance was filed. 3. In the written statement, one of the contentions raised is that the suit was barred by limitation. Parties adduced evidence. The learned trial Judge dismissed the suit. Though the learned trial Judge held that execution of the suit agreement was proved, the learned trial Judge held 2 hvn that the suit was not filed within stipulated period of limitation. The learned trial Judge held that admittedly the appellant had served notice dated 22nd June, 1974 to the respondent by which the appellant refused to perform his part of the agreement. The trial Court held that the notice was admittedly received by the respondent and it was replied by the respondent. The trial Court, therefore, held that the suit ought to have been filed within the period of three years from the date of service of the said notice and the suit was filed on 7th September, 1978 which was barred by limitation. 4. In the appeal preferred by the respondent, the appellate Court has interfered. The appellate Court held that limitation will start from 25th August, 1977 i.e. the date on which the said Act was amended. The appellate Court held that the notice dated 22nd June, 1974 was replied to by the respondent and therefore, said notice cannot be relied upon. 5. The learned counsel appearing for the appellant submitted that the suit was clearly barred by limitation in as much as in the notice dated 22nd June, 1974, there was a clear repudiation of the suit agreement by the appellant. He invited the attention of the Court to the relevant 3 hvn portion of the judgments of both the Courts below. He submitted that in view of Article 54 of the Limitation Act, 1963, on receipt of notice dated 22nd June, 1974, the respondent had notice that the appellant had refused to perform the suit agreement and therefore, the period of limitation started running from the said date. He, therefore, submitted that the view taken by the appellate Court is illegal. 6. The learned counsel appearing for the respondent submitted that till the permission under the said Act was obtained, the suit agreement was not at all executable and the agreement became executable only when the said Act was amended by which the requirement of obtaining permission was dispensed with. He submitted that at the highest the period of limitation will start from the date on which the suit agreement became enforceable. He therefore, submitted that the appellate Court has rightly held that the suit was filed within limitation. 7. I have carefully considered the submissions. By order dated 22nd November, 1989 Second Appeal was admitted on substantial questions of law incorporated in question nos. 1 to 7 in the Memorandum of Appeal. Question Nos. 4 to 6 are specifically on the issue of limitation. 4 hvn 8. Before dealing with the findings of the Appellate Court, it will be necessary to make a reference to Article 54 of the Limitation Act, 1963 which reads thus : 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. 9. In the present case admittedly there is no date fixed for performance of the suit agreement. Under the suit agreement, there is no date fixed for execution of the sale deed. Therefore, the starting point of limitation will be the date on which the respondent-plaintiff had notice that the performance of the suit agreement was refused by the appellant. 10. Respondent stepped into witness box. In the cross examination, he admitted that on 22nd June, 1974 the appellant issued notice in which it was alleged that the suit agreement was obtained by coercion. He specifically admitted in Paragraph 6 that "It is true that by the notice 5 hvn defendant has denied the agreement on 22.6.1974." Thus the cross examination indicates that the respondent/plaintiff clearly understood the notice dated 22nd June, 1974 to mean that the appellant had denied the suit agreement. It is true that a reply dated 15th July, 1974 was issued by the respondent to the said notice. However, the fact remains that by the said notice the respondent was informed that the suit agreement was obtained by coercion and that respondent correctly understood the notice to mean that the appellant was denying the suit agreement. Thus the period of limitation started running from the date of service of notice dated 22nd June, 1974. By the said notice, the respondent became aware that the appellant has refused to perform the suit agreement. 11. The submission of the learned counsel for the respondent is that when the said notice was given, the agreement was not enforceable. This submission is not at all relevant as far as limitation is concerned in as much as in view of article 54, the limitation started running when the notice dated 22nd June, 1974 was served to the respondent/plaintiff. As pointed out earlier, the suit was filed on 7th September, 1978 which is beyond the period of three years provided under article 54 of the Limitation Act, 1963. This has been completely glossed over by the 6 hvn appellate Court. The appellate Court was perhaps impressed by the reply given by the respondent to the said notice. The finding of the appellate court in Para 32 of the judgment is that the time began to run from 31st August, 1978 when the appellant replied to the said notice dated 14th August, 1978 and declined to execute the sale deed. In fact the said denial was made as long back as on 22nd June, 1974. Therefore, the finding of the appellate Court on the issue of limitation is completely illegal and deserves to be set aside. 12. Hence, the appeal must succeed. The impugned judgment and decree is quashed and set aside and the judgment and decree of the trial Court dated 29th March, 1984 is restored. Appeal is allowed in above terms with no order as to costs. (A.S. OKA,J.) 7