JUDGMENT
Pius C. Kuriakose, J.
1. These two appeals are preferred separately by defendants 3 and 4 and 1 and 2 respectively in O.S. No. 647 of 1995 of the Subordinate Judge’s Court, Kozhikode. Respondents 1 to 3 in both these appeals are the plaintiff in the suit.
2. The suit was instituted for specific performance of an agreement for sale (Ext. A1) in respect of the suit schedule property consisting of two shop rooms and a hall/ godown. It was alleged in the plaint, that the suit property belonged to defendants 1 and 2; while so, they were restrained from alienating the suit property by an order of injunction passed in two injunction suits, O.S. Nos. 98 and 99 of 1987 of the Kuzhikode Sub-Court, filed by one Moosakutty; defendants who were interested in disposing of the property approached the plaintiffs who were also interested in purchasing the same; accordingly on 10-3-1989 Ext. A1 agreement was executed between plaintiffs and defendants 1 and 2, stipulating a total sale consideration of Rs. 6 lakhs out of which Rs. 22,000/- was readily paid as advance; since the order of Injunction was in force, no definite date could be fixed for performance of the mutual obligations under the agreement; instead it was mentioned that the deed of sale will be executed as soon as the injunction stood vacated; both the suits were dismissed on 10-6-1992; close on the heels of dismissal of the two suits, a fresh suit O.S. 382 of 1992 was instituted by one Latha, sister of defendants 3 and 4; the Court passed ah order directing maintenance of status quo in respect of the suit property against defendants 1 and 2 who were defendants in that suit; plaintiffs were never informed by defendants regarding the passage of that order. When the performance of the obligations under the agreement for sale was delayed indefinitely, plaintiffs sought for possession of the property and accordingly they were put in possession of the godown portion of the suit property having Door No. 10/1008 by defendants 1 and 2 through one Dandayudhan, their duly constituted power-of-attorney holder; while matters stood as above, on 31st of August, 1995 defendants with the help of certain others broke open the locks of the godown building and trespassed into the plaint schedule properties; at that time only the plaintiffs came to know that defendants 1 and 2 in gross violation of Ext. A1 had already executed deeds of sale in favour of defendants 3 and 4; they at all relevant times have been ready and willing to perform all their obligations under the agreement and are entitled to have the agreement enforced through Court.
3. Through their written statement defendants 1 and 2 contended that Ext. A1 agreement was a fabricated document and that there never has been any agreement between them and the plaintiffs for sale and purchase of the suit properties. They denied the averment that the godown building was handed over to the plaintiffs in pursuance to Ext. A1 agreement and the further averment that the same was done through Danday udhan power of attorney holder. They contended further that the power-of-attorney in favour of Dandayudhan stood already cancelled on account of his dishonesty, that he is presently colluding with the plaintiffs out of his antipathy and that the present suit is the result of that collusion and that Ext. A1 document has been fabricated by making use of certain signed blank papers which defendants 1 and 2 had left with Dandayudhan in connection with litigations.
4. Through their separate written statement, defendants 3 and 4 contended that they are the absolute owners in possession of the suit schedule properties by virtue of two sale documents dated 30-8-1995 and 31-8-1995 (Exts. B15 and B16); that those documents have been executed in good faith and for consideration and that they did not have any notice regarding Ext. A1 karar. As regards Ext. A1 ‘karar, they adopted the contentions raised by defendants 1 and 2. According to them, the plaintiffs had never been put in possession of the godown and Dandayudhan also was not having possession of the stationery shop. It was defendants 1 and 2 who were having actual possession who put defendants 3 and 4 in possession on the basis of Exts. B15 and B16. It is these defendants who are presently conducting their business in the plaint schedule rooms. After effecting necessary repairs in the rooms with permission from the Court, jewellery business in a big way is being conducted in the premises. The suit is barred by limitation and is liable to be rejected on that reason alone.
5. The Court formulated as many as five issues including the following :–
” 1. Whether there was a sale agreement between the plaintiffs and defendants 1 and 2 on 10-3-89 in respect of the plaint schedule property as alleged?
2. Whether defendants 3 and 4 are bona fide purchasers of the plaint schedule property without notice of the sale agreement?
Addl. 5. Whether the suit is barred by limitation?”
The evidence at trial consisted of the oral testimonies of P.Ws. 1 to 3 and D.Ws. 1 to 3, Exts. A1 to A32, Exts. B1 toB17(b), Exts. XI to X10 and Exts. C1 and C1(a). The learned Subordinate Judge answered issue No. 1 in favour of the plaintiffs holding that Ext. A1 agreement was executed between the plaintiffs and defendants 1 and 2 and that in June, 1992 defendants 1 and 2 put he plaintiffs in possession of the godown building. Under Issue No. 2 the learned Subordinate Judge found that defendants 3 and 4 were having notice regarding the existence of Ext. A1 in favour of plaintiffs and, therefore, it is not possible to find that those defendants are bona fide purchasers for value without notice. The issue regarding limitation was answered by the learned Judge in favour of the plaintiffs holding that the relevant article of the Limitation Act which governs the suit was the second part of Article 54 and since the suit has been instituted within three years of the plaintiffs coming to have notice of the defendants’ refusal to perform the contract; the suit is not barred by limitation. Accordingly the learned Judge answered the other issues also in favour of the plaintiffs and decreed the suit.
6. Sri T. P. Kelu Nambiar, Senior Advocate addressed us on behalf of the appellants in A.S. 393 of 1997. The learned Senior Advocate addressed arguments only in the context of the question of limitation. Sri. T. Krishnanunni, learned counsel for the appellants in A.S. 281 of 1997 addressed us not only on the question of limitation but also on other legal and factual issues. Sri T. R. Raman Pillai, Senior Advocate addressed us on behalf of plaintiffs-respondents in both these appeals. Though Mr. Krishnanunni addressed us also on the merits of the appeals, the main thrust of his argument was on the question of limitation itself.
7. Sri Kelu Nambiar as well as Sri Krishnanunni would submit that the finding of the learned Subordinate Judge that it is the second part of Article 54 of the Limitation Act which governs the present suit is erroneous; Both the learned counsel relied on the decision of the Supreme Court in Ramzan v. Hussalni, AIR 1990 SC 529 and Tarlok Singh v. Vijay Kumar Sabharwal. (1996) 8 SCC 367. According to learned counsel, the learned Subordinate Judge ignored the above precedents which were binding and chose to prefer the decision of the Bombay High Court in Shrikrishna v. Balaji, AIR 1976 Bombay 342 and that of the Madhya Pradesh High Court in Mithu Khan v. Pipariyawali, AIR 1986 MP 39.
8. Mr. T. R. Raman Pillai submitted that this was a case where Ext, A1 karar does not provide for any specific date for performance of the agreement and, therefore, it is the second part of Article 54 which alone can govern the case. According to the learned counsel, the date indicated in Ext. A1 is so indefinite that the said date may not even arrive at all. Therefore, the period of limitation has to be taken as three years from the date when the plaintiffs came to have information about the decision of defendants’ 1 and 2 not to perform the agreement. In support of his submissions the learned Senior Advocate relied on the decision of the Bombay High Court in Shrikrishna, (AIR 1976 Bom 342) (supra), of the Madras High Court in Muniswami v. Shamanna, AIR 1950 Madras 820 and Lakshminarayana v. Singaravelu. AIR 1963 Madras 24 and that of the Supreme Court in Shrimant Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, (2002) 3 SCC 676 : (AIR 2002 SC 960), The learned counsel also relied on certain passages in the Sub-Chapter under the caption “Where time does not run” in the Sixth Edition of A Treatise on the Specific Performance of Contracts by Sir Edward Fry.
9. After completing their arguments on the question of limitation, the learned counsel addressed arguments on the merits. Sri T. R. Raman Pillai argued that the decree for specific performance granted by the trial Court was perfectly justified on the basis of the evidence adduced in the case and the circumstances which were brought to light through such evidence. According to the learned counsel, there has been no conduct on the part of the plaintiffs which disentitle them to a decree for specific performance and that execution of Exts. B15 and B16 in gross violation of Ext. A1 by defendants 1 and 2 in favour of defendants 3 and 4 as well as the action of the defendants in trespassing into the plaint schedule properties and dispossessing the plaintiffs will show that it was the defendants who were guilty of inequitable conduct.
10. Per contra Sri T. Krishnanunni submitted that defendants 3 and 4 were at any rate bona fide purchasers for value who were not having any information whatsoever regarding Ext. A1 agreement. According to the learned counsel, a careful scrutiny of Ext. A1 will reveal that the same was an adventurous venture by the plaintiffs to purchase litigation. This will be further clear, Mr. Krishnanunni submitted, from the nominal amount which alone was paid by the plaintiffs as advance. According to counsel, the maximum relief which could be granted to the plaintiffs even if the suit was found to be within time is a money decree for Rs. 22,000/- and proportionate costs.
11. The first and the foremost question which should be answered in this case is whether it Is the first part of Article 54 of the Limitation Act or the second part that governs the present suit. To answer the question, the document to be scrutinised first is Ext. A1 itself. The first parties to Ext, A1 agreement are K. R. Muthugopal (1st defendant) and V. Rajan (2nd defendant); the second parties are S. Brahmanand (1st plaintiff), S. Vinod (2nd plaintiff), G. Rathna Bai (3rd plaintiff). Ext. A1 does disclose an agreement by the first parties to convey title and possession over the suit properties to the second parties. The clause in Ext. A1 which is relevant as regards the question of limitation is Clause 1 which reads as follows :–
“1. THAT the first parties agreed to sell and the second parties agreed to purchase the said properties for a total consideration of Rs. 6,00,000/- (Rupees Six lakhs only) immediately after the interim order in O.S. 99/87 and O.S. 98/87 imposing restriction on alienation is vacated by the Court.”
The opening paragraphs of Ext. A1 will show clearly that at the time when Ext. A1 was entered into, the property was the subject-matter of suits O.S. 98 and 99 of 1987 before the Additional Sub-Court, Kozhikode, instituted by Moosakutty who claimed that the first parties to Ext. A1 had contracted to sell the property to him and that the parties to Ext. A1 were aware of the pendency of those suits and the possibility of other persons including M/s. Bhat brothers and their people coming forward in future with more litigations. The parties were also aware that an interim order of injunction passed by the Kozhikode Sub-Court against the first parties restraining them from transferring the suit property to third parties was in force. The interim order referred to in Clause 1 of Ext. A1 extracted above is that order. The submissions of Sri Kelu Nambiar and Sri Krishnanunni were that the plaintiffs who had been put to notice regarding the pendency of the suits and the existence of the injunction order and who had been keenly following up the Court proceedings came to have notice regarding the vacation of the injunction order as soon as the same was vacated. That the suits were dismissed and the injunction order was vacated on 10-6-1992 is a matter beyond controversy. Ext. A2 is a letter addressed by the 1st defendant Muthugopal to 1st plaintiff Brahmanand which certainly reveals that the 1st plaintiff came to have notice of dismissal of the two suits almost as soon as they were dismissed. It appears that upon dismissal of the applications for temporary injunction consequent on the dismissal of the suits, the plaintiffs therein filed another application for grant of injunction till such time as an appeal is preferred. It is common ground that no injunction was granted by the Court on this application and the order for maintenance of status quo initially granted did not continue beyond two weeks’. It is also not in dispute before us that the suit which was actually filed on 15-9-95 is filed beyond three years of the date of vacation of the injunction order and discontinuance of order for maintenance of status quo.
12. As observed by the Madras High Court in Muniswami v. Shamanna, AIR 1950 Madras 820) (supra) and later in several decisions including that of the Supreme Court in Ramzan, (AIR 1990 SC 529) (supra), the expression “date fixed for the performance” appearing in the third column of Article 54 does not mean a precise date by calendar alone but the same is comprehensive enough to include a date which can be ascertained with reference to an event certain to happen, the applicable principle being the doctrine of id certum est quod certum reddi potest. The question, therefore, is whether on the terms of Clause 1 of Ext. A1 it can be said that the doctrine applies and it can be held that the date fixed for performance was ascertainable with reference to an event which was certain to happen. The Court below took the view that the decisions of the Supreme Court in Ramzan, (AIR 1990 SC 529) and Tarlok Singh, (1996 (8) SCC 367) (supra) did not apply to the facts of the case and that it was the decision of the Bombay High Court in Shrikrishna, (AIR 1976 Bombay 342) (supra) that was applicable to the fact-situation obtaining in the case. The Court below also relied on the decision of the Madhya Pradesh High Court In Mithu Khan, AIR 1986 MP 39, a decision which was not cited before us by the learned counsel on either sides. Mithu Khan was a case where the Madhya Pradesh High Court took the view that if the provision in the agreement is loosely worded, it is the second part of Article 54 which is to be applied. We are unable to agree with the view of the Court below due to the reasons which are set out hereunder.
13. Unlike the decisions of the Bombay and Madhya Pradesh High, Court, the decisions of the Supreme Court in Ramzan (AIR 1990 SC 529) and Tarlok Singh (1996, (8) SCC, 367) (supra) were binding precedents. In Ramzan (supra) also the question was whether it was the first part or the second part of Article 54 which applied. That case pertained to agreement for sale of a house which was under mortgage. The clause in the agreement which was the subject-matter therein as extracted in para 6 of the judgment in that case reads as follows ;–
“This house is under mortgage with Jethmal Bastimal for Rs. 1000/-. When you will get this house, the description of which is given below, redeemed from M/s. Jeth Mal Bastimal and take the papers of the registry in your possession, on that day I will have the sale deed of the said house, written, executed and registered in your favour.”
Obviously, no date by calendar had been fixed in that case for performance of the agreement. On the contrary, an ascertainable date or a date which became ascertained upon performance of a particular act by the plaintiffs, i.e. redemption of the mortgage, is provided in the agreement. The Supreme Court, in fact, approved the decision of the Madras High Court in Muniswami, (AIR 1950 Madras 820) (supra) where, the relevant term of the agreement read as follows :–
“As regards the balance of Rs. 2,400 since a suit has been pending concerning the same property, I shall receive it before the Sub-Registrar upon executing a sale deed the moment the suit is disposed of.”
The date in the Madras case was certainly not fixed by calendar but the parties did contemplate a date which could be ascertained with reference to an event which was certain to happen. The question is whether the language is wide enough to include a day which though at the time when the contract was made was not known, could be ascertained by an event which was subsequently certain of happening. The Supreme Court has in unambiguous language held that the requirement of Article 113 which corresponds to the present Article 54 is not that the actual day should necessarily be ascertained on the face of the deed, but that the basis of the calculation which was to make it certain should be found therein. In Tarlok Singh (1996 (8) SCC 367) (supra) also the Supreme Court interpreting a contract which provided the time of performance as “within 15 days after the injunction was vacated” as one where the parties had already determined the date for performance of the contract. The learned Sub-Judge is certainly right in his observation that in Tarlok Singh’s case the point mainly decided by the Supreme Court was as to when an amendment of the plaint allowed in that case became operative. The learned Judge should have noticed that the Supreme Court had also held that the sale agreement containing a time clause as indicated above in that case did fix a date for performance for the purposes of Article 54. Shrikrishna, AIR 1976 Bombay 342 was a case where the agreement for sale in question provided that the performance should be made after the attachment which the creditors had brought was raised. Obviously, the doctrine of id certum est quod certum reddi potest interpreted by Herbert Broom in his book dealing with legal maxims, approved by the Division Bench of the Madras High Court in Muniswami (surpa) and later endorsed by the Supreme Court was not brought to the notice of the learned Judge.
14. Sri T. R. Raman Pillai, inspired as the learned Senior Advocate was by the observations of the Bombay High Court in Shrikrishna, AIR 1976 Bombay 342, submitted that in this case also there was no indication in the agreement as to when the interim order imposing restriction on alienation will be vacated and that it was even likely that the injunction will never be vacated. To this submission Sri T. Krishnanunni would quickly retort and submit that the application for temporary injunction was certain to be dismissed even in a case where the Court was decreeing perpetual injunction.
15. We have no difficulty to conclude that the learned Subordinate Judge was wrong in holding that it was the second part of Article 54 and not the first part which applied to the present case. Even though Clause 1 of Ext. A1 does not fix a date by calendar, it is possible to ascertain the date for performance from Ext. A1 itself with reference to an event the lifting of the interim order of injunction. In other words, the date for performance of Ext. A1 agreement did become ascertainable by a calendar date upon the happening of the event of the vacation of the interim order of injunction. The learned Judge was bound to follow the Supreme Court decision in Ramzan (AIR 1990 SC 529) (supra) and hold that on the facts of the case it was the first part of Article 54 which applied. We notice from the judgment of the Court below that Sri T. R. Raman Pillai’s counterpart In that Court had unsuccessfully raised two more lines of arguments in the context of the question of limitation. But the learned Senior Counsel for obvious reasons did not address any arguments in those lines before us. The reliance placed by Sri T. R. Raman Pillai on “‘Fry” to salvage the suit from rejection on grounds of limitation will not be of avail. The learned Senior Counsel relied on Sub-Chapter (iv) which is captioned “Where time does not run” in Chapter XXV of Sixth Edition of Sir Edward Fry’s work. Para 1110 which was particularly relied on by Sri Raman Pillai reads as follows :–
“Where the contract Is substantially executed, and the plaintiff is in possession of the property, and has got the equitable estate, so that the object of his action is only to clothe himself with the legal estate, time either will not run at all as laches to debar the plaintiff from his right, or it will be looked at less narrowly by the Court; for the plaintiff has not been sleeping on his rights, but relying on his equitable title, without thinking it necessary to have his legal right perfected.”
This paragraph and the decisions in Croftori v. Ormsby, (1806) 2 Sch & Lef 581 (604) and Cartan v. Bury ((1860) 10 Ir Ch R 387 at p. 395) referred to by the learned author deal with situations where the litigant was already having equitable title in the form of absolute possession and sued only for what is mentioned as legal title. We are of the view that it is not necessary for us even to examine this argument in more detail in this case where admittedly the plaintiffs are no longer in possession. Therefore, we set aside the finding of the trial Court on additional issue No. 5 and hold that the suit is barred by limitation.
16. In view of our findings on the question of limitation it is necessary to deal with
the merits of the case only briefly. The decision in K.S. Vidyanadan v. Vairavan, (1997)
3 SCC 1 : (AIR 1997 SC 1751) was relied on by Sri. T. Krishnanunni to contend that even
if the suit is not barred by limitation, the decision of the Court in the matter of grant
(SIC)sed against the plaintiffs since there has been inordinate delay on the part of the plaintiffs in suing for specific performance. We do not agree that the said decision applies to the facts of this case. It is evident that the plain tiffs had been put in possession of a substantial portion of the suit schedule property and was later is possessed and there after the plaintiffs did not delay institution of the suit. We do not find anything in the conduct of the plaintiffs which disentitle them to the grant of a decree for specific performance having regard to the provisions of Section 20, Section 16 and Section 10 of the Specific Relief Act and various judicial precedents which govern those provisions such as K. S. Vidyanadam (supra) itself and Motilal Jain v. Ramdasi Devi, AIR 2000 SC 2408. We have gone through the findings entered by the learned Sub-Judge under issue No. 1 and issue No. 3 which were regarding the existence or otherwise of Ext. A1 agreement for sale and also regarding the plaintiffs’ eligibility for obtainment of a
positive decree for specific performance. The learned Judge rightly repelled the case of
the defendants that Exts. A1 was a concocted or fabricated one brought into existence by utilising certain blank signed papers left with Dandayudhan, their former
power-of-attorney holder who allegedly connived with the plaintiffs. The learned Judge
has made a thorough analysts of the entire evidence in the case which consisted of the
oral testimony of three witnesses on either sides and Exts. A1 to A32 on the plaintiffs’
side and Exts. B1 to B17(b) on the side of the defendants. The Court below also rightly
relied on the facts which emerged from Exts. XI to X10, the documents brought under
summons. The Court below Justifiably relied also on the commission report in sup
port of its conclusion that pursuant to the agreement plaintiffs had been put in pos
session of a substantial portion of the properties. We do not find any reason to disturb
the findings entered by the Court below under issue No. 1. The same is the position as regards the findings entered by the Court below under issue No. 2 which pertained to the contention of defendants 3 and 4 that, they were bona fide purchasers for value without notice. The conclusions of the learned Judge are based on evidence. We having re-appraised the evidence’ do not find any reason to disturb those findings. However, in view of our finding regarding the question of limitation, we are constrained to set aside the judgment and decree of the Court below and dismiss the suit.
The appeals are allowed as above. The parties, however, will suffer their costs throughout.