1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 1261 OF 2009 Ramrao s/o Narayan Kashid, R/o. Bodhegaon, Tq. Shevgaon, Dist. Ahmednagar. ....Appellant. Versus 1. Gahininath s/o Narayan Bodkhe, 2. Maruti s/o. Karbhari Aghav, R/o. Bodhegaon, Tal. Shevgaon, Dist. Ahmednagar. ....Respondents. Shri. R.S. Deshmukh, Advocate for the appellant. Shri. Y. V. Kakade, Advocate for the respondents. CORAM : R.K. DESHPANDE, JJ. DATE : 15th September, 2009 ORAL JUDGMENT : 1. This appeal is preferred by the original plaintiff, whose suit for specific performance of contract bearing Special Civil Suit No.133/2007, on the basis of agreement dated 14.6.2002 at Exh. 30, has been dismissed by the learned IIIrd Jt. Civil Judge, Senior Division, Ahmednagar by holding that it is barred by the limitation. 2 2. Notice of this appeal was issued on 15th of June 2009, informing the parties that the matter shall be disposed of finally at the stage of admission. Accordingly, the record and proceedings were also called. 3. Shri. Yuvraj Kakade, the learned counsel appears for respondent Nos. 1 and 2. Admit. The matter is heard by consent of parties, finally. 4. The Trial Court has framed issue No. 5 as "Whether the suit is within limitation ?". The Trial Court has recorded a finding that the suit was filed for reconveyance of the agreement, which was executed on 14.6.2002 and as per this agreement, the plaintiff was required to repay the amount of Rs.2,10,000/-to the defendants to get the sale deed executed within a period of two years i.e. from 14.6.2002 to 13.6.2004. According to the Trial Court, the suit should have been filed for specific performance, within a period of two years i.e. up to 13.6.2004 from the date of execution of agreement on 14.6.2002, but the suit was filed in July 2006, which was barred by the limitation. 5. Shri. Deshmukh, the learned counsel appearing on behalf of the appellant/original plaintiff has contended that the issue of limitation is governed by the Article 54 of the Indian Limitation Act, which prescribes period of three years for filing the suit for specific performance of 3 contract. According to the learned counsel, the time from which the period of limitation would begin, is the date fixed for the performance of contract. According to the learned counsel, the last date for getting the sale deed executed in terms of agreement dated 14.6.2002, was 13.6.2004 and the suit has been filed in the month of July 2006 which filed within a period of 3 years from 13.6.2004 and hence, the same was within limitation. According to him, the Trial Court has committed an error of law in holding that the limitation commenced from 14.6.2002 on the date of which the agreement was executed. 6. As against this the learned counsel for the defendants/ respondents has urged that the agreement prescribed the period of two years for getting the sale deed executed from 14.6.2002 to 13.6.2004 and since within this period, the applicant has failed to get the sale deed executed, the Trial Court was right in holding that the suit was barred by limitation. The learned counsel for the defendants Shri. Yuvraj Kakade, however, does not dispute the fact that the matter is governed by the provisions of Article 54 of the Limitation Act. The learned counsel relies upon the decision of the Apex Court reported in (2009) 5 Supreme Court Cases 462, Ahmedsab Abdul Mulla Vs. Bibijan and others to urge that the agreement dated 14.6.2002 prescribed the period for performance of contract up to 13.6.2004, which was the date fixed and the plaintiff has failed to get the sale deed executed in terms of agreement. 4 7. I have gone through the agreement dated 14.6.2002 at Exh. 30. What it prescribes, is the period for payment of the sum of Rs.2,10,000/-. This amount was required to be paid by the plaintiff to the defendants within a period of commencing from 14.6.2002 to 13.6.2004, upon which the defendants were required to execute the sale deed in respect of the suit property. Thus, the agreement prescribes the period, not for execution of the sale deed, but for the payment of the amount. Article 54 of the Limitation Act, which governs this issue, deals with the time from which the period begins to run and it is the date fixed for performance from which, the period of three years shall start running. In the instant case, the last date prescribed for making payment was 13.6.2004 to get the sale deed executed. As per the defence taken in the written statement, the plaintiff has failed to make the payment within a stipulated period and has also failed to get the sale deed executed up to 13.6.2004. However, in any event, the period of three years of limitation started running from 13.6.2004. The suit was filed in the month of July 2006, which in my opinion, is therefore, perfectly within limitation. 8. The judgment cited by the learned counsel for the appellant in Ahmedsab's case lays down that when the date is fixed, it means that there is definite date fixed for doing a particular act and there is no question, to find out the intention from the other circumstances. The judgment of the Apex Court, in my view, does not come in the way of holding that the suit in the instant case is within a period of limitation. 5 The agreement itself, provides the period of 14.6.2002 to 13.6.2004 for making payment and the question, whether actually payment was made or not, is altogether different and it is required to be adjudicated on merits. However, the fact remains that the limitation would start running from 13.6.2004. 9. The Trial Court has also recorded the findings on merits of the matter and the learned counsel appearing for both the parties states that they would like to move certain applications for permission to lead evidence. In view of that, the matter will have to be remanded back to the Trial Court for deciding it afresh on merits, in accordance with law. 10. In view of above the instant appeal succeeds, the appeal is allowed and following order is passed :- (i) The judgment and decree passed by the learned IIIrd Jt. Civil Judge, Senior Division, Ahmednagar on 29.11.2008 in Special Civil Suit No. 133/2006 is hereby quashed and set aside. (ii) It is held that the Special Civil Suit No. 133/2006 is within a period of limitation. (iii) The Trial Court is directed to decide the Special Civil Suit No. 133/2006 on its own merits and the parties are at liberty to move all such other application as they desire to move before the Trial Court and the Trial Court shall decide the same in accordance with law. 6 (iv) However, there shall be no order as to costs. [ R.K. DESHPANDE, J. ] ssc/fa1261.09