- (1.) THE only question of law that arises for consideration in this second appeal is whether the Courts below were right in holding that whether the suit is barred by limitation under Article 54 of the Limitation Act, particularly when there is a pleading that the respondent-defendants have created mortgage on the plaint schedule property in favour of the bank and the same has not been discharged and the Bank had filed the suit against the respondent-defendants ?
(2.) THE appellant presented plaint in OS No. Nil/98 (G. L. No. 5492/dated 12-10-1998) before the learned Junior Civil Judge, Nandigama seeking specific performance of an agreement of sale dated 21-10-1992. Along with the plaint, the agreement of sale and legal notices dated 5-71995 and 30-10-1995 were also filed. The notice dated 30-10-1995 is said to have been returned on 13-11-1995. However, the plaint was rejected on 27-10-1998 passing the following Order : "this plaint filed for numbering of the suit on the objections raised by the Court. In this plaint, the plaintiff filed the plaint against the defendants for specific performance of the contract and in respect of the sale of land by the defendants. This sale of agreement entered by the plaintiff and the two defendants and another person on 21-10-1992 for Rs. 1,69,500/- and on the same day, the plaintiff paid Rs. 50,000/- to the defendants and another person on a condition the transaction shall be completed by 30-1-1993. The other person received money from the plaintiff and performed his part of contract. The plaintiff got issued a legal notice dated 57-1995 to the defendants in respect of the contract, and there on the defendants approached the plaintiff and requested the plaintiff 3 more months for the performance of the contract. Again the plaintiff got issued another legal notice on 30-101995 for which the defendants have not given any reply as such the plaintiff came to know that the defendants refused to perform their part of contract. This plaint was filed on the date of 12-10-1998. The objections for numbering of the plaint are whether the suit is filed within the period of limitation and whether the suit is maintainable on the basis of the agreement is partly performed. The Counsel argued that the defendants though received the first legal notice dated 5-71995 and requested 3 more months for the performance of their part of contract. Thereafter, the plaintiff got issued another legal notice dated 30-10-1995 for which they refused. Hence, the limitation for the plaint arises only from the date of the refusal of the performance of the contract. Hence, this plaint is having filed within a limitation period and argued that under Section 12 (3) (b) (ii) of Specific Relief Act. As the plaintiff is relinquished his right over the specific performance of remaining property mentioned in the agreement, since one of the vendors has already performed his part to that extent so this suit is maintainable perused the records and the original sale agreement and the legal notices and other record. The sale agreement was entered on 21-10-1992 with a condition to perform the transaction by 30-1-1993. The date of performance is clearly mentioned as 30-1-1993. The counsel argued that the limitation starts from the date of the refusal to perform the contract that arose on 30-10-1993. The suit is filed for specific performance of the contract. As Article 54 of the Limitation Act the limitation for the specific performance starts from the date of fixed for the performance only. When the date is fixed the specific performance and there must be refusal to perform part of contract. Here the date for performance of the contract is clearly mentioned as 30-1-1993. Where as the plaint is filed on 12-10-1998. Hence, the plaint is filed after limitation. Hence, it is rejected. "
(3.) AGGRIEVED by the same, the appellant carried the matter in A. S. No. 98 of 1999 before the learned Senior Civil Judge, Nandigama. The appellate Court framed the point "whether the relief sought for by the appellant can be considered or not ?" for consideration and held as under : ". . . When once the specific date was mentioned in the agreement, stating that the plaintiff has to perform her contract and sale cannot linkup the act of the defendants. If at all the plaintiff want to take the plea that the defendants have to perform their contract, only after performance made by the plaintiff. It is also not the case that the defendants have approached the plaintiff seeking three months time to perform their contract i. e. , there is no documentary proof on this aspect at prima facie stage. Therefore, the plaintiff cannot take the issuance of notices on which she relied upon to consider the limitation aspect. Therefore, Article 54 of the limitation Act applied to this case in land. Hence, I come to conclusion that the suit is not filed within limitation i. e. , she violates the conditions stipulated in the agreement. Hence, the lower Court has courtesy rejected the plaint and there is no necessary of this Court to interfere with the lower Court order. " Holding thus, the appeal was dismissed confirming the Order passed by the trial Court. Challenging the same, the present second appeal is filed.;