1 fa-1656-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1656 OF 2011 M/s. Bagaria Builders and Developers .. Appellant Vs. Sanjay Cooperative Housing Society Ltd. .. Respondent Mr. Subhash Jha i/by Law Global for appellant. Mr. A. S. Gadkari for respondent. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE JJ. SEPTEMBER 22, 2011. P.C. 1. We have heard Mr. Jha, the learned counsel for the appellant – plaintiff, who had filed Special Civil Suit No. 45 of 2011 for specific performance of the contract, namely, Memorandum of Understanding (MOU) dated 7/2/1996. The suit has been dismissed by the impugned order dated 21/6/2011 on the ground of limitation and this being only a point of 2 fa-1656-11 law on the interpretation of Article 54 of the Limitation Act 1963 and the documents placed by the plaintiff itself on record along with Exhibit 3 – Application, we have proceeded to decide this appeal finally by dispensing with the paper book and all other relevant documents are on record. 2. As per the plaintiff’s own contentions, the MOU between itself and one Shri Bhaskar N. Nair as the Chairman/Chief Promoter of the defendant – society, namely, Sanjay Cooperative Housing Society Ltd. was signed on 7/2/1996 for development of the plot of land owned by the defendant – society and the MOU was confirmed by other 11 members by signing the Agreement of Confirmation dated 19/3/1996. The society did not take any steps for executing duly registered development agreement and power of attorney in favour of the plaintiff and, therefore, the plaintiff issued legal notice on 13/3/2010 to the defendant. The said notice was replied on 25/3/2010 and thus Special Civil Suit No. 45 of 2011 came to be filed on 10/1/2011 for specific performance of the contract. 3. The reliefs prayed for in the suit, substantially, are as under:- (a) The Hon’ble Court may be pleased to direct the 3 fa-1656-11 defendants to execute duly registered development agreement and power of attorney in favour of the plaintiff. (b) The defendant may be directed to get the property measured from TILR, Ambernath or in alternative executed necessary power of attorney in favour of the plaintiff to authorize him to get the suit property measured from TILR, Ambernath and also to get necessary sanction from Ambernath Municipal Council for the construction and development of the suit property in pursuance to the memorandum of understanding dated 7.2.1996. (c) The Hon’ble Court may be pleased to issue perpetual injunction to restrain the defendants, their members, officers etc. from selling and disposing off the suit property and/or creating third party interest in the suit property and/or interfere with the physical possession of the suit property in any manner.” 4. The defendant – society appeared before the trial court on notice and filed its written statement at Exh. 45 and opposed the suit on number of grounds. At the first instance, it stated that the defendant – 4 fa-1656-11 society has never signed any agreement with the plaintiff, leave alone the MOU dated 7/2/1996. Shri Bhaskar N. Nair was not the Chairman/Chief Promoter of the defendant – society, on 7/2/1996, there was no resolution passed by the General Body of the society authorizing anybody or the managing committee to enter into any agreement with the plaintiff, the suit was not maintainable on the point of jurisdiction and the suit was hit by limitation. The defendant – society has 66 members. 5. On 19/4/2011, the trial court passed an order holding that the preliminary issues raised by the defendant – society under Section 9-A of C.P.C. shall be decided first and the preliminary issues framed are, (a) Whether the court has jurisdiction to try and decide the suit? (b) Whether the suit is within limitation? By the said order dated 19/4/2011, the trial court also directed the parties to lead evidence, if any, on preliminary issues. It is obvious that the parties chose not to lead evidence on the preliminary issues and by the impugned order, the trial court proceeded to decide both the issues. The 5 fa-1656-11 issue of jurisdiction to entertain the suit has been answered in favour of the plaintiff, whereas the issue of limitation has been answered against the plaintiff and hence this appeal by the plaintiff. It is also pertinent to note that after the suit was filed, the defendant – society passed a General Body resolution on 25/7/2010 and it signed an agreement for development with M/s. Shree Krishna Enterprises on 4/11/2010 and the said agreement has been registered. 6. Undoubtedly, the issue of limitation, in the instant case, depends on the interpretation of Article 54 of the Limitation Act and it reads as under:- Description of suit Period of limitation Time from which period begins to run 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. From the scheme of Article 54 of the Limitation Act, it is clear that a suit for specific performance of the contract has to be filed within three years of the date fixed for performance, or, if no such date is fixed, 6 fa-1656-11 when plaintiff has notice that performance is refused. In the case of Janardhanam Prasad vs. Ramdas [2007 Scale 442], the Supreme Court on the interpretation of Article 54 of the Limitation Act stated, “The court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years. Here, however, no time for performance was fixed. It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter”. 7. In the instant case, the plaintiff stated in the plaint that after the MOU was signed on 7/2/1996 and confirmation agreement on 19/3/1996, there was no response from the defendant to the communications sent by the plaintiff from 5/3/1997 onwards and till 20/2/2008. Hence the plaintiff submitted an application on 4/6/2008 to the Taluka Inspector of Land Records at Ambernath to carry out the measurements of Gat No. 28 ( suit property) and on receipt of the letter 7 fa-1656-11 from the said authority in July, 2008, the plaintiff issued the legal notice dated 13/3/2010 to the defendant – society. The reply received in response to the said notice, through Shri Sachin R. Shete, was the point when the specific performance of contract was denied and thus the period of limitation would commence from the date of receipt of the said letter dated 25/3/2010. The trial court has rejected these contentions and proceeded to decide the issue of limitation having specifically noted that in the MOU dated 7/2/1996 the date/period for performance was not fixed. The trial court proceeded to examine the issue of limitation solely on the basis of the averments made by the plaintiff and the documents submitted along with list at Exh.3 by the plaintiff and these were the letters addressed to the defendant. 8. As noted earlier, in the plaint itself, the plaintiff stated to have issued the first notice to the defendant on 5/3/1997. At the same time, along with the list at Exh. 3, the plaintiff placed before the trial court the copies of the letters addressed to the defendant on 8/4/1999, 15/3/2004 and 19/12/2006. All these letters specifically called upon the defendant – society to execute the registered agreement as well as the power of attorney in favour of the plaintiff. There was no response from the defendant – 8 fa-1656-11 society. In the letter dated 8/4/1999 the plaintiff had given specifically 15 days time to the members of the defendant – society for executing necessary irrevocable power of attorney and further to help for getting the ULC clearance from the competent authority at Thane. It is under these circumstances, the trial court held that the limitation will have to be counted from 23/4/1999 and the suit was not filed within a period of three years from the said date. The trial court, thus, examined the conduct of the plaintiff in issuing the notices. The plaintiff had given a specific time of 15 days in the notice dated 8/4/1999 and there was no response from the defendant – society to the said notice. We do not find any error committed by the trial court in holding that the limitation started to run from 23/4/1999 and that the suit was not filed within a period of three years from the said date. 9. Hence, this appeal must fail at the threshold and the same is hereby dismissed. 10. Mr. Jha, the learned counsel for the appellant, at this stage, submitted an oral application to continue the status quo order for a period of four weeks. Mr. Gadkari, the learned counsel for the respondent 9 fa-1656-11 submitted that the suit property is already in possession of M/s. Shree Krishna Enterprises and the said new developer is not a party before this court. We, therefore, reject the oral application. 11. Certified copy is expedited. (SMT. NISHITA MHATRE J.) (B. H. MARLAPALLE, J.)