IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 28.9.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal No.750 of 2009 and M.P.No.1 of 2009 Hameer Sultan (died) 1. Aribunnisa Begum 2. Ansari Begam 3. Sadiq Basha 4. Asiama 5. Moumtaj Begum 6. Zunith Basha 7. Rasheed Basha 8. Halil Basha Appellants vs. Puviyarasu @ Jaganathan (died) 1. Parry 2. Vallarku Vallan 3. Annadurai 4. Poongodi 5. Victoria 6. Poongundran 7. Tamilarasi 8. Manonmani 9. Tamilarasan 10. Minor Aravindan rep by his next friend Tamilarasan Respondents For appellants : Mr.R.Subramanian For RR 1, 2, 4 to 10: Mr.R.Bharanidharan Prayer:- Second Appeal filed under Sec.1--, CPC. against the judgment and decree dated 23.4.2009 in A.S.No.132 of 2006 on the file of the III Additional District Judge, Pondicherry reversing the judgment and decree dated 23.4.1997 in O.S.No.72 of 1994 on the file of the Additional Sub Judge, Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT Defendants are the appellants. 2. The suit was filed by the deceased respondent Puviyarasu @ Jaganathan for specific performance of an agreement of sale executed by the appellants. The case of the plaintiff was that the appellant entered into an agreement of sale with him on 24.5.1981 agreeing to sell the suit property for a sum of Rs.1,63,400/= and also received an advance of Rs.30,000/= on that day and as per the agreement, the appellant should execute the sale deed within three months after getting permission from the Urban Land Ceiling Authorities and without taking any steps, to obtain the clearance from the Urban Land Ceiling Authorities, the appellants received various sums on various dates starting from 18.1.1982 to 20.9.1987 totalling to Rs.96,000/= and they also received another sum of Rs.3000/= on 17.9.1981 and therefore, considering the advance and the payments received later, the appellants received Rs.1,29,000/= towards the sale consideration and the first respondent/plaintiff was liable to pay the balance sale consideration of Rs.34,400/= and on 24.4.1990, a notice was sent by the plaintiff calling upon the appellants to execute the sale deed after getting permission from the competent authorities under the Urban Land Ceiling Act and even thereafter, they did not take steps to get clearance and sent a reply on 31.5.1990 asking the plaintiff to receive the amount already paid by him and therefore, the suit was filed for specific performance of the agreement of sale. 3. The appellants contested the suit stating that the plaintiff was not entitled to specific performance as the suit properties were not properly described and it cannot be conveyed as per the description given in the agreement of sale and therefore, the agreement of sale is void for vagueness. Further, the permission from the authorities could not be obtained and the properties were also notified under the Land Acquisition proceedings and hence, the agreement is incapable of performance. It was further stated that the plaintiff agreed to get the permission from the authorities using his influence and he did not act according to the promise and therefore, they are not bound to execute the sale deed. 4. The Trial Court dismissed the suit holding that the agreement was bad on the ground of vagueness and there was latches on the part of the deceased plaintiff in filing the suit and some of the lands were under the Land Acquisition proceedings and the sale could not be effected for want of clearance from the Urban Land Ceiling authorities and ordered refund of Rs.1,29,000/= with interest at the rate of 12% per annum from 24.4.1990. 5. The first appellate court reversed the finding and allowed the appeal and granted the relief of specific performance holding that time was not the essence of the contract and the appellants https://hcservices.ecourts.gov.in/hcservices/ admitted the execution of the sale deed and also received consideration on various dates and the properties are agricultural dry lands and the appellants have no right to rescind the agreement and therefore, the appellants are liable to execute the sale deed. 6. The following substantial questions of law were framed at the time of admission of the second appeal:- "1) Whether the lower appellate court was right in holding that the suit is not barred by limitation? 2) Whether the lower appellate court was right in granting the relief of specific performance of a contingent contract? 3) Whether the lower appellate court was right in reversing the judgment and decree without setting out its reasons for being unable to agree with the reasonings and conclusions of the trial court?" 7. Mr.R.Subramanian, learned counsel for the appellants submitted that admittedly, the agreement of sale was entered on 24.5.1981 and notice was issued on 24.4.1990 and on 31.5.1990, reply was sent by the appellants expressing their unwillingness to execute the sale deed and requested the deceased plaintiff to receive the advance paid by him and therefore, even after expressing their inability to execute the sale deed as per the agreement, in the year 1990 itself, no action was taken by the plaintiff for filing the suit for specific performance and the suit was filed on 23.3.1994 and therefore, the suit is barred by limitation. He further submitted that the conduct of the plaintiff would also prove that he was not ready and willing to perform his part of the contract. The learned counsel for the appellants further submitted that the contract is a contingent one and as per the agreement, permission from the Urban Land Ceiling Authorities were to be obtained and admittedly, some of the properties were under Land Acquisition proceedings and permission from the Urban Land Ceiling Authorities is not obtained and therefore, the contract could not be specifically enforced. He also submitted that the respondents cannot take advantage of the Repealing Act 1994 applicable to Pondicherry and as per the decision in SYNDICATE BANK v. PRABHA D. NAIK ((2001) 4 SCC 713) Limitation Act, 1963 is applicable to all parts of India except Jammu and Kashmir and the Pondicherry Law of Limitation will also be considered as a Special Law dealing with the rights and liabilities under the Limitation Act and therefore, as per Article 54 of the Act, the suit as though filed within three months from the date of reply notice, it was filed long after the period of three years and therefore, the suit is barred by limitation. 8. On the other hand, the learned counsel for the respondents Mr.Bharanidharan submitted that the conduct of the parties would make it clear that the plaintiff was ready and willing to perform his part https://hcservices.ecourts.gov.in/hcservices/ of the contract and he also made various payments on various dates as admitted by the appellants and even though the parties agreed to get the clearance from the Urban Land Ceiling Authorities, later, the plaintiff came to know that the properties were not covered under the Urban Land Ceiling Act and therefore, issued notice calling upon the appellants to execute the sale deed on receipt of the balance sale consideration and it is not the case of the appellants that the plaintiff was not having means to pay the balance sale consideration and no plea was taken regarding the readiness and willingness on the part of the plaintiff and considering all these aspects, the lower appellate court rightly decreed the suit. He further submitted that insofar as Pondicherry is concerned, the period of limitation is thirty years and Pondicherry Repealing Act, 1994 was passed by which one year moratorium was given and the suits can be filed on or before 1.3.1995 and that the suit was filed on 23.3.1994 and therefore, the suit is well within time. He also relied upon the judgment of the Honourable Supreme Court in KANAGAVALLIAMMAL v. R.BALASUBRAMANIAN ((2008) (5) SCC 212) wherein the Honorable Supreme Court has considered the Pondicherry Limitation (Repeal of Local Laws) Act, 1994 and held that as per the Pondicherry Limitation (Repeal of Local Laws) Act, 1994, any suit filed within a period of one year as stated in the Act will not be barred by limitation and therefore, the suit is not barred by limitation. 9. Having regard to the submissions made by both the parties, in my opinion, the appeal can be disposed of on the question of limitation. 10. Admittedly, the suit was filed on 23.3.1994 three years after receipt of reply notice by the appellants wherein they have specifically requested the plaintiff to get back the advance amount and informed their inability to execute the sale deed as per the agreement of sale dated 24.5.1981. As per Article 54 of the Indian Limitation Act, 1963, the suit for specific performance has to be filed within a period of three years from the date fixed in the agreement of sale and if no time is fixed, three years from the date of refusal. Though in the agreement of sale, no time was fixed, it was only stated that the sale has to be completed within three months from the date of getting clearance from the authorities under the Urban Land Ceiling Act. 11. For the purpose of deciding the second appeal we need not go into the aspect whether the permission from the Urban Land Ceiling Authorities was necessary for concluding the contract, whether the plaintiff failed to get permission or the appellants failed to apply for permission or exemption from the Urban Land authorities. As per the judgment reported in (2001) 4 SCC 713 cited supra, the Honourable supreme Court had occasion to deal with the provisions of Portuguese Civil Code and under the Portugese Civil Code, different period of limitation was prescribed and therefore, a question arose https://hcservices.ecourts.gov.in/hcservices/ whether the period of limitation fixed in the Articles of Indian Limitation Act will apply to areas covered under the Portuguese Civil Court. In that context, the Honourable Supreme Court held as follows:- "21. Needless to record that our concurrence to the observations of the High Court in regard to a special Law of Limitation is provided for enforcement of the rights arising under that Code itself, is by reason of the fact that Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it (reference may be made to the decision of this Court in C.Beepathuma v. Velasari Shankaranarayana Kadambolithaya) (AIR 1965 SC 241). 22. Admittedly, the Limitation Act is a statute enacting the provisions in general terms applicable to the entire country excepting the exception as mentioned in the statute itself. It is a latter statute of the year 1963 only that Portuguese Civil Code assuming had its application in the State of Goa, Daman & Diu and an earlier statute thus stands altered, as the latter is expressed in affirmative language, more so by reason of specific application of the Negotiable Instruments Act and Indian Contract Act: It thus cannot but be said to be repealing by implication - "affirmative statute introductive of a new law do imply a negative" [(Harcourt v. Fox (1693) 1 show. 506]. 23. As regards the doctrine of implied repeal, another aspect of the matter ought to be noticed vis-a-vis the Civil Code. The issue of limitation being a mixed issue of law and fact under the Limitation Act, the Court in spite of plea not being raised by the defence, can go into the same suo motu but there is a specific bar under Article 515 of the Civil Code which records that the Court cannot suo motu take cognizance of description (sic prescription) unless it is specifically pleaded by the parties. It is a bar to jurisdiction of Court. The repugnancy and incongruity arise by reason of the fact that the Parliament by law viz. the High Court at Bombay: (extension of jurisdiction to Goa, Daman and Diu) Act, 1981 extended the jurisdiction of the High Court of Judicature at Bombay to the Union Territory of Goa, Daman and Diu from the appointed https://hcservices.ecourts.gov.in/hcservices/ day and the Court of Judicial Commissioner was abolished. Section 9 of the statute [(Act of 1981) (supra)] provides that there shall be, on and from appointed day, established a permanent Bench of the High Court of Bombay at Panaji and some Judges of the High Court at Bombay being not less than two in number or as may be nominated by the Chief Justice of the High Court from time to time shall sit at Panaji, in order to exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in this Union Territory. The authority and jurisdiction of the High Court of Bombay, to take cognizance of an action being barred by limitation, thus stands negated - conceptually even a difficult situation to conceive that same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repetition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that in the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano case stand overruled. There is one general law of limitation for the entire country, being the Act of 1963, and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman & Diu prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific mention of repealing statute (since the 1963 Act of Limitation does not record express repeal of any other law excepting the Limitation Act of 1908), question of Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fail and are dismissed without however any order as to costs." 12. Therefore, as per the above judgment, the French Civil Court is impliedly repealed after coming into force of 1963 Act from 1.1.1964 and it is not saved. In the above judgment of the Supreme Court Their Lordships also overruled the earlier judgment of the https://hcservices.ecourts.gov.in/hcservices/ Honourable Supreme Court in JUSTINIANO AUGUSTO DE PIEDADE BARRETO v. ANTONIO ((1979) 3 SCC 47). Therefore, as per the Supreme Court judgment referred to above, even in respect of Pondicherry, the Indian Limitation Act applies and as per Article 54 of the Indian Limitation act, the suit has to be filed within three years from the date of refusal in the absence of any period prescribed under the agreement. 13. As stated supra, reply notice was dated 31.5.1990 and even after reply notice, the suit was not filed within three years and hence, the suit is clearly barred by limitation. Considering these aspects, the Trial Court ordered refund of the amount received and the lower appellate court, without appreciating the question of limitation, reversed the finding of the Trial Court and erroneously decreed the suit. 14. As the second appeal is disposed of on the question of limitation, in my opinion, there is no need to give any finding on the other substantial questions of law framed at the time of admission. Hence, I hold that the suit is barred by limitation and the first substantial question of law is answered in favour of the appellant and the judgment and decree of the first appellate court is set aside and the judgment and decree of the Trial Court is restored. In the result, the second appeal is allowed. No costs. The connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar ssk. To 1. III Additional District Judge, Pondicherry. 2. The Additional Sub Judge, Pondicherry. + 1 cc to Mr. R. Subramanian, SR.60569 + 1 cc to Mr.R. Karthikeyan, sR.60727 S.A.No.750 of 2009 TRM(CO) EU 9.12.11 https://hcservices.ecourts.gov.in/hcservices/