1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 570 OF 2010 1. Smt. Chandrabhagabai Pundalik Dhamane and others .. Appellants Versus 1. Vithal Lala Mali (since deceased through his heirs) Shantaram Vithal Mali .. Respondents Shri V. B. Patil, Advocate for Appellants. CORAM : S. V. GANGAPURWALA, J. DATE : 31ST AUGUST, 2010. PER COURT : . The present appellant is the original defendant. The respondent had filed a suit for specific performance of contract pursuant to an agreement dated 29.01.1974. The plaintiff had paid an earnest amount of Rs. 2500/- and was put in possession of the suit property on the same day. The total consideration agreed was Rs. 3,750/-. The sale deed was to be executed after obtaining the permission under the provisions of Bombay 2 Prevention of Fragmentation and Consolidation of Holdings Act. Further case of the plaintiff is that on 07.03.1974 remaining consideration amount was paid. It's receipt was also executed. Thereafter, in 1996 the predecessor of the defendant died. The present appellants are the heirs of deceased Pundalik who had executed the agreement. On 05.06.2000 the plaintiff issued notice to the defendants to execute the sale deed. 2. Finding no response, the plaintiff instituted a suit for specific performance of contract alleging that the plaintiff has paid the total amount of consideration and the defendants are not executing the sale deed. 3. The defendants came with a case of total denial. They denied the very existence of the agreement and further came with a case that the agreement is in violation of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act and they prayed for dismissal of the suit. 4. The trial Court dismissed the suit on the count that the said agreement was hit by the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act. According to the Trial Judge, the permission under the said Act was 3 required and as no permission is obtained no decree for specific performance can be passed. The Trial Judge came to the conclusion that the defendant's father had entered into an agreement of sale and that he had received the total consideration amount. It was also held by the Trial Judge that, the plaintiff was put in possession of the suit property pursuant to the agreement of sale. But only on the count that no permission under the said Act has been obtained had dismissed the suit. The Appellate Court has reversed the finding of the Trial Judge. The Appellate Court held that, the permission under the said Act was not necessary. The defendants had not even raised an issue of limitation nor the Trial Court had also embarked upon the same, as the plaintiff had paid the total consideration amount and as it was found that he was ready and willing to get the sale deed executed the Appellate Court decreed the suit. 5. Shri V. B. Patil, learned counsel for appellants canvassed that the suit was barred by law of limitation. The condition for obtaining the necessary permission under the said Act stood waived by the operation of the statute i. e. by way of amendment in the year 1977 in the said Act. The suit ought to have been filed within three years, thereafter as the suit was not filed 4 within three years, thereafter, according to him the suit is barred by law of limitation. To support his contention he relied on the judgment of this Court in the case of Nakubai vs. Bhagwansingh reported in 2008(6) Mh. L. J. 105. 6. It is not disputed that, at the time of the agreement entered into, the permission under the said Act was necessary. Thereafter vide amendment in the year 1977, the said permission was not required under the statute. Both the Courts have also concurrently come to the conclusion that the plaintiff had paid total consideration amount to Pundalik and that the possession also has been delivered by Pundalik pursuant to agreement of sale. The only issue that has been raised is only about limitation by the learned counsel. In the judgment referred supra, the agreement in question required the condition to get the sale executed within one month after obtaining the permission to sell. When in 1977 the said requirement was waived by the amendment in the statute, this Court came to the conclusion that the limitation would start after lapse of one month, when the amendment came into force. In the present case, the agreement nowhere laid down the requirement of executing the sale deed within a stipulated period after obtaining the permission. In the 5 said judgment relied by Shri Patil, this Court was required to consider Part I of the Article 54 of the Limitation Act, wherein limitation to file a suit for specific performance is three years if the time is stipulated in the agreement. In the present case, the matter would be governed by the II part of Article 54, wherein no time limit is prescribed. Then in that cas,e the limitation would start from the date of refusal. 7. There is nothing on record to show that prior to the date of cause of action as stated by the plaintiff, the defendant at earlier refused to perform their part of promise. In such circumstances, the judgment referred by the learned counsel would be of no assistance. 8. The lower Appellate Court has also delt with the said issue and has observed that though the contention of limitation was not raised before the Trial Court, still the Appellate Court has considered the same. The Appellate Court has considered that the agreement (Exhibit 56) does not specify the date for performance of the contract, when the notice was issued on 05.06.2000 and same was not replied, the same was the date of refusal and as such, the suit filed within a period of one year from the said date was well within limitation. Moreover, the 6 plaintiff has parted with total consideration amount. In such circumstances, the readiness and willingness can also be judged of the plaintiff. 9. In view of the above, no substantial question of law arises and second appeal is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J.] bsb/August 10