IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25.08.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.383 of 2010 and M.P.No.1 of 2010 Arumugam @ Tamilarasan .. Appellant/Appellant/ Defendant Vs. Gothamchand Jain .. Respondent/Respondent/ Plaintiff Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgement and decree dated 8.9.2009 made in A.S.No.81 of 2006 on the file of the Learned II Additional District Judge, Pondicherry, confirming the judgement and decree dated 25.11.1994 made in O.S.No.295 of 1991 on the file of the Learned First Additional Subordinate Judge, Pondicherry. For Appellant .. Mr.R.Subramanian For Respondent .. Mr.R.Mukundan (Caveator) J U D G E M E N T The unsuccessful defendant in O.S.No.295 of 1991 on the file of the First Additional Subordinate Judge, Pondicherry, is the appellant. 2. The respondent/ plaintiff filed the suit for specific performance of agreement of sale dated 11.10.1984 executed by the father of the appellant in his favour. The case of the respondent/ plaintiff was that the property belonged to the father of the appellant namely Marimuthu Gramani and he entered into an agreement of sale with the respondent/ plaintiff on 11.10.1984 agreeing to sell the property for consideration of Rs.41,500/- and received an advance of Rs.1001/- and as per the terms of the agreement the appellant's father has to get necessary permission from the Urban Land Ceiling Authority and thereafter within a period of three months the sale deed has to be executed on receipt of the balance sale consideration. The father of the appellant died on 4.9.1987 and thereafter the respondent/ plaintiff approached the appellant to execute the sale deed after receiving the balance sale consideration and the appellant was evading and notice was issued on 21.9.1991 calling upon the appellant to get necessary permission from the authorities and execute the sale deed and the appellant sent a reply dated 9.10.1991 denying the execution of the agreement https://hcservices.ecourts.gov.in/hcservices/ itself and therefore the suit was filed in November 1991 for specific performance of the agreement of sale dated 11.10.1984. 3. The appellant/ defendant denied the execution of the agreement of sale executed by his father and also his signature in the agreement of sale as attesting witness and contended that it was a fabricated one and the suit was barred by limitation. 4. The trial Court held that the agreement of sale was executed by the father of the appellant and the appellant attested the said document and as per the French Code Civil under Article 2262, the suit is not barred by limitation and decreed the suit. The appeal filed by the appellant was also dismissed holding that the suit was not barred by limitation of the agreement of sale executed by the appellant's father. Hence the Second Appeal. 5. The following substantial questions of law were framed at the time of admission of the Second Appeal: (1) Whether the lower appellate Court has committed an error in law in pronouncing a Judgement without considering and answering the question regarding readiness and willingness on the part of the respondent/ plaintiff to perform his part of the contract ? (2) Whether the lower appellate Court has committed an error in not adverting to the issue regarding limitation when the same has been specifically raised in the trial Court and also in the grounds of appeal ? (3) Whether the Courts below have erroneously held that the Limitation Act, 1963 is not applicable to the case ? 6. Mr. R.Subramanian, the learned counsel for the appellant submitted that as per Article 54 of the Limitation Act 1963, the suit ought to have been filed within three years and in this case the agreement of sale was dated 11.10.1984 and the appellant's father died on 4.9.1987 and the suit was filed in November 1991 and therefore the suit was barred by limitation under Article 54 of the Limitation Act 1963. He further submitted that the conduct of the respondent would also prove that he was not ready and willing to perform his part of the contract and as per the agreement of sale he has to pay the balance sale consideration and during the life time of the father of the appellant no attempt was made by the respondent calling upon the appellant's father to get the sale deed executed after getting necessary permission from the authorities and even after the death of the father for nearly four years, no attempt was made and only on 21.9.1991 a notice was issued and that would also prove that the respondent was not ready and willing to perform his part of the contract and therefore both the Courts below have committed an error in granting a decree for specific performance. He further submitted that after passing of Limitation Act 1963, the respondent cannot take advantage of the French Code Civil and it is not open to the respondent to contend that as per French Code Civil under Article 2262 the limitation is 30 years and https://hcservices.ecourts.gov.in/hcservices/ therefore the suit is within the time. 7. The learned counsel for the appellant Mr.R. Subramanian relied upon the Judgement of the Hon'ble Supreme Court reported in 2001 (2) MLJ 97 (Syndicate Bank v. Mr.Prabha D.Naik and another) wherein in similar circumstances the Hon'ble Supreme Court has held that even though Portuguese Civil Code prescribed a different period of limitation, after the enactment of Limitation Act 1963 the same is applicable to all the persons and the period prescribed in the Limitation Act 1963 will govern the parties and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act 1963. The Lordship of the Supreme Court also overruled the earlier Judgement of the Hon'ble Supreme Court reported in AIR 1979 SC 984 in the matter of Justiniano Augusto De Piedade Barreto v. Antonio Vicente Do Fonsesa. He therefore submitted that the suit is hopelessly barred by limitation. He also relied upon the Judgement reported in 2006 (2) Law Weekly 455 in the matter of D.Kaliaperumal v. Vedavalliammal in support of his contention. 8. On the other hand, the learned counsel for the respondent submitted that as per Article 2262 of French Code Civil, a suit can be filed within a period of 30 years and as per Section 29 of the Limitation Act 1963, the French Code Civil is same as local law and therefore the suit is within the period of limitation. 9. No doubt as per Article 2262 of French Code Civil, 30 years period is prescribed for instituting a suit for specific performance. But having regarding to the Judgement of the Hon'ble Supreme Court reported in 2001 (2) MLJ 97 (Syndicate Bank v. Mr.Prabha D.Naik and another) it cannot be held that the French Code Civl will come under the phrase ' local law ' as per Section 29 of the Limitation Act 1963. In the said judgement, the Honourbale Supreme Court has held as follows: "21. Admittedly, 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 the Portuguese Civil Code assuming had its application in the State of Goa, Daman and Diu and an earlier statute thus stand altered, as the latter is expressed in affirmative language, more so by reason of specific application of 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 Vs.Fox, (1693) I Show.505. 22. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 bear under Art.515 of the Civil Code which records that the Court cannot suo motu take cognizance of description unless it is specifically pleaded by the parties. It is a bare of 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 day and the Court of Judicial Commissioner was abolished. Sec.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 at 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- conceputally even a difficult situation to conceive that the same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repetition we say that while implied repel is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that on the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Art.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's case, A.I.R. 1979 S.C.984 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 and Diu prescribing a different period of limitation within the meaning of Sec.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 statue (Since 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." https://hcservices.ecourts.gov.in/hcservices/ Though the said Judgement was rendered with reference to Portuguese Civil Code the principle is applicable to the French Civil Code. 10. In the Judgement of this Court relied upon by the learned counsel for the respondent namely 1988 (1) MLJ 432 (Cooppousamy v. Alamelu and others), this Court relied upon the Judgement of the Hon'ble Supreme Court rendered in AIR 1979 SC 984 in the matter of Justiniano Augusto De Piedade Barreto v. Antonio Vicente Do Fonsesa and held that French Code Civil prevails over the Limitation Act. But the Judgement in AIR 1979 SC 984 in the matter of Justiniano Augusto De Piedade Barreto v. Antonio Vicente Do Fonsesa was considered and overruled by the larger Bench of the Hon'ble Supreme Court in that Judgement reported in 2001 (2) MLJ 97 (Syndicate Bank v. Mr.Prabha D.Naik and another) and hence it cannot be stated that the suit is within the time as per the French Code Civil. This was not properly appreciated by the Courts below. 11. According to me, the suit ought to have been filed within a period of three years as per Article 54 of the Limitation Act and admittedly the suit was filed after a period of seven years. Hence, the suit is barred by limitation. Further, the conduct of the respondent would also prove that he was not ready and willing to perform his part of the contract, as the respondent did not take any steps to call upon the appellant's father or the appellant to get permission from the authorities and execute the sale deed for nearly seven years. Hence, I hold that the respondent was not ready and willing to perform his part of the contract and on that ground also he is not entitled to the discretionary relief of specific performance. Therefore, the substantial questions of law are answered in favour of the appellant and I hold that the respondent was not ready and willing to perform his part of the contract and both the Courts below did not address this aspect while granting the decree of specific performance as per Section 16 (c) of the Specific Relief Act and the suit is also barred by limitation and the Limitation Act 1963 is applicable to the parties. 12. In the result, the Judgement and Decree of the Courts below are set aside and the Second Appeal is allowed. No costs Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kr https://hcservices.ecourts.gov.in/hcservices/ To 1. The II Additional District Judge, II Additional District Court, Pondicherry. 2. The First Subordinate Judge, First Subordinate Court, Pondicherry. 1 cc to Mr.R.Subramanian, Advocate, Sr.No.53879 1 cc to Mr.R.Mukundan, Advocate, Sr.No.52999 S.A.No.383 of 2010 and M.P.No.1 of 2010 BS {CO} TP/14.10.2011. https://hcservices.ecourts.gov.in/hcservices/