Gujarat High Court
Chandrabhushan Ramnand Sinh vs Nilaben D/O.Bhogilal B Patel … on 22 August, 2025
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C/SCA/13512/2011 CAV JUDGMENT DATED: 22/08/2025
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Reserved On : 23/07/2025
Pronounced On : 22/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13512 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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CHANDRABHUSHAN RAMNAND SINH & ANR.
Versus
NILABEN D/O.BHOGILAL B PATEL &WD/O.HASMUKHLAL M SHAH & ORS.
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1,2
MR BJ TRIVEDI(921) for the Respondent(s) No. 2.2
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 2.2
RULE SERVED for the Respondent(s) No. 1,2.1,2.3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. The present writ application is filed under Article 227
of the Constitution of India seeking following relief :-
“A] The Honourable Court be pleased to issue writ of certiorari or
any other appropriate writ, order or direction, by quashing and setting
aside judgment and order passed by the learned City Civil Judge
below Exh. 27 and 28 in Civil Suit No. 776 of 2006, dated 19/01/2011
and be further pleased to allow the amendment application Exh. 28 in
Civil Suit No. 776 of 2006, filed by the present petitioners in thePage 1 of 41
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interest of justice.
[B] Pending hearing and final disposal of the present petition the
Honourable Court be pleased to direct the respondents to maintain
status quo with regard to the suit property of the Civil Suit No. 776 of
2006, in the interest of justice.
[C] Looking to the facts and circumstances of the case, any other
and further relief/s be granted in favour of the present applicant in the
interest of justice.”
Facts of the case
2.0 The petitioners herein are original plaintiffs, who
instituted Regular Civil Suit No. 776 of 2006 against the
respondents herein. The suit is filed seeking specific
performance of the contractual obligation of clearing the
title of vendor, incorporated into the registered agreement
to sell (hereinafter referred to as ‘ATS’) dated 24.03.2003
executed by defendants-vendor and also seeking direction
that the defendants-vendor to clear the title by removing
objections mentioned in the solicitor’s M/S H.Desai Company
& Co. title clear certificate dated 11.03.2003. The prohibitory
injunction is also sought for, thereby prayed that defendants
should not transfer, alienate suit property in any manner
whatsoever. The suit came to be filed on 03.04.2006.
2.1 The defendant No.2 appeared in the suit and filed their
written statement on 21.04.2006. The defendant No.2
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categorically stated in Para-10 of his written statement that
plaintiffs having not filed suit seeking specific performance
of ATS itself and no relief is sought under specific relief act,
no cause of action accrued to file suit. Hence, the plaintiffs
are not entitled for any declaration.
2.2 It appears that initially the plaintiffs have executed a
registered agreement to sell with defendants in relation to
suit property on 25.11.2002. The Solicitor – M/s H. Desai &
Co. vide its letter dated 11.03.2003 informed the plaintiffs
that there are several stake holders in relation to suit
property as it is subjected to other agreement to sell
executed by the defendants in favour of such parties. So,
the plaintiffs and defendants have decided to cancel the
aforesaid agreement to sell by executing registered
cancellation of deed of such agreement to sell on
24.03.2003, thereafter the aforesaid ATS was executed
between the parties.
2.3 As per the terms of ATS, its period was fixed for three
months from the date of its execution i.e. three months from
24.03.2003, nonetheless in Para-4 of ATS, it is specifically
observed that within period of ATS, the defendants will have
to get it clear title of suit property by cancelling all previous
agreement to sell. After getting clear all objections, the
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defendants will have to execute sale-deed and period of ATS
would be considered till such time meaning thereby, ATS
would stand alive till objections get cleared by vendor.
2.4 It further appears that prior to filing of suit, plaintiff
issued suit notice dated 26.06.2003, whereby called upon the
defendants to execute sale deed in their favour in pursuance
to ATS. It is averred in the aforesaid notice that, if the
defendants would not execute sale deed, the plaintiffs have
no other option but to file a suit for specific performance
against them in the City Civil Court, Ahmedabad City. Such
suit notice was replied by the defendants vide its reply dated
05.08.2003 by their Lawyer wherein they have refuted all the
allegations made in the suit notice, so also not admitted that
there was any ATS executed by them in favour of plaintiffs. It
appears from bare reading of such reply that defendants
refused to perform as per ATS, thus suit.
2.5 The injunction application filed in the suit at Exh. 6/7
came to be rejected by the trial Court on 09.09.2009,
wherein it was specifically observed that, as per Section
41(h) of the Specific Relief Act, 1963, an injunction cannot be
granted when an equally efficacious remedy is available by
another mode of proceedings, such as a suit for specific
performance of the contract, through which the necessary
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relief can be obtained. In that view of the matter, its
observed that a suit filed for seeking perpetual injunction,
much less temporary injunction, cannot be granted. The trial
Court, while rejecting the injunction application, observed
that the plaintiffs may file a suit for specific performance of
the alleged Agreement to Sell (ATS).
2.6 The reasons best known to the plaintiffs, despite the
defendants’ refusal to perform the terms of the ATS and
their reply to the plaintiffs’ notice as referred to
hereinabove, and despite the trial Court having clearly
refused injunction on the ground that the plaintiffs had not
sought specific performance of the ATS, which they could
have done, not sought for such reliefs at given point of time,
now sought for by way of amendment in the suit.
2.7 It appears that third party in whose favour defendants
executed agreement to sell and had filed suit, such claim was
settled between the third party and defendants on
08.04.2009 having withdrawn such suit.
2.8 The plaintiffs appear to file amendment application
under Order 6 rule 17 of CPC on 26.10.2009 below Exh. 28
seeking amendment in the suit, thereby, sought for specific
performance of ATS and in alternatively prayed for refund of
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earnest money paid by them to the defendants as per ATS
being charge over suit property as per Section 55 (6) (b) of
Transfer of Property Act, 1882 (herein after referred as the
Act, 1882) and so also claim interest thereon. The valuation
of suit was also sought to be amended to Rs. 32 lakhs.
2.9 The defendants have objected such amendment
application, contending inter-alia that prayers sought in the
impugned amendment application is time barred and cannot
be granted.
2.10 After hearing the parties, the trial Court vide its
impugned order dated 09.01.2011 rejected the impugned
amendment application.
2.11 Being aggrieved and dissatisfied with the
aforesaid impugned order, the present writ application is
filed at the instance of the plaintiffs.
Submission of the petitioners-original plaintiffs
3. Leaned advocate Mr. K.V. Shelat for the petitioners
would submit that the impugned order passed by the trial
Court is ex-facie erroneous, perverse and contrary to settle
principle of law, which requires to be quashed and set aside.
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It is submitted that the trial Court has not correctly
appreciated the facts which are narrated in the impugned
application and erroneously rejected the amendment
application.
3.1 Learned advocate Mr. Shelat would further submit that
the trial Court has erroneously arrived at the conclusion that
amendment as sought for is time barred whereby, it cannot
be granted. It is submitted that the amendment was sought
for is not time barred rather, cause of action arose to the
plaintiffs to seek specific performance of ATS accrued when
objections/ suit filed by the third party got disposed of on
08.04.2009. It is submitted that until such objections/suit
was pending, the defendants were not in a position to
execute sale-deed in favour of the plaintiffs. So, time to file
suit for specific performance having commenced after such
withdrawal of the suit, the amendment application was filed
well within the period of limitation i.e. 3 years from such
withdrawal of suit – 08.04.2009.
3.2 Learned advocate Mr. Shelat would further submit that
the trial Court has completely lost sight of fact that as per
terms of ATS on happening of contingency i.e. clearance of
title of suit, the defendants were supposed to execute sale-
deed in favour of plaintiffs. It is respectfully submitted that
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the case of plaintiffs falls within Part-I of Article 54 of Indian
Limitation Act, 1963 (hereinafter referred to the Act, 1963)
and not under Part-II of such Article of Act, 1963.
3.3 Learned advocate Mr. Shelat would submit that a per
condition No.4 of ATS, its nothing but contingency of
contract and on happening of such events i.e. getting
clearance of tittle of suit, from such date, the plaintiffs were
entitled to get execute sale deed in their favour. It is
submitted that when such contingency occurred in the year
2009, i.e. suit of third party got withdrawn/ settled within
period of three years from such event, the plaintiffs can file
suit for specific performance and or can sought for such
performance by way of filing amendment in the suit.
3.4 Learned advocate Mr. Shelat would respectfully submit
that the trial Court has completely misconstrued the terms
of ATS and reached to the conclusion that once the
defendants refused to perform their part of contract in the
year 2003 vide its reply dated 05.08.2003 within three years
from such period, the plaintiffs were required to file suit for
specific performance and or sought amendment to that
effect within three years from accrual of cause of action i.e.
05.08.2003.
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3.5 Learned advocate Mr. Shelat would further submit that
issue of limitation is always considered to be mixed question
of law and fact and to decide such issue, the parties is
required to give an opportunity to lead their evidence. It is
further submitted that as per settled legal position of law, all
amendments should be liberally allowed, whereby, the Court
can decide real dispute between the parties.
3.6 Learned advocate Mr. Shelat would respectfully submit
that so far alternative prayers sought for by plaintiffs by way
of amendment application in regards to return of earnest
money with interest given to defendants would be not hit by
law of limitation as period to recover such amount would be
12 years and not 3 years. It is submitted that as per Section
55 (6) (b) of the Act, 1882 read with Article 62 of the Act,
1963, in a case where the charge over the immovable
property, recovery of such amount secured by charged upon
immovable property would 12 years from such money
becomes due. It is further submitted that earnest money
paid in year 2003, whereas amendment sought for to get
back refund of earnest money filed in year 2009, thus its well
within period of limitation.
3.7 To buttress his argument, learned advocate Mr. Shelat
would refer and rely upon the following decisions :-
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(i) Life Insurance Corporation of India Vs. Sanjeev
Builders Pvt. Ltd. reported in (2022) 16 SCC 1.
(ii) Katta Sujatha Reddy and another Vs. Siddamsetty
Intra Projects Pvt. Ltd and others reported in 2023(1) SCC
355.
(iii) Ramzan Vs. Smt. Hussaini reported in (1990) 1 SCC
104 : AIR 1990 SC 529.
(iv) Asgar S. Patel Vs. Union of India & Ors. reported in
(2000) 5 SCC 311.
3.8 Making the above submissions, learned advocate Mr.
Shelat would request this Court to allow the present writ
application.
Submission of the respondents-defendants.
4. Per contra, learned advocate Mr. Jinesh H. Kapadia
would submit that there is no error much less any gross error
of law and or jurisdictional error committed by the trial Court
while rejecting the impugned amendment application. It is
submitted that despite drawing attention of the plaintiffs
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that they have not sought for specific performance of ATS
while instituting the suit, even no effective steps be taken by
the plaintiffs to sought for such prayers, which are now
sought in the amendment application being barred by law of
limitation, than cannot be granted.
4.1 Learned advocate Mr. Kapadia would further submit
that not only in Para-6 & 10 of the written statement,
whereby defendants have specifically raised the issue in
relation that plaintiff not sought for specific performance of
contract, but in Para-6 read with Para-8 of plaint also, it
clearly mentioned by plaintiffs that defendants have refused
the performance of ATS by not executing sale deed in favour
of plaintiffs. It is submitted that once performance refused
by defendants-vendor in year 2003 itself, within 3 years
thereafter, plaintiffs-vendee could have sought for specific
performance of ATS failing which such claim becomes time
barred.
4.2 Learned advocate Mr. Kapadia would further submit
that when there is no date fixed as per ATS to execute
registered sale-deed, by no stretch of imagination, case of
plaintiffs would fall under part-I of Article 54 of the Act, 1963
as alleged. It is submitted that as per plain reading of terms
of ATS executed between the parties, case of plaintiffs
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would surely fall only under part-II of Article 54 of the Act,
1963 as its never an intention of parties that time was an
essence of contract.
4.3 Learned advocate Mr. Kapadia would further submit
that when performance of ATS was refused by the
defendants on 05.08.2003 sending reply to the plaintiffs,
thus refused to execute sale-deed in favour of plaintiffs. So,
as per part-II of Article 54 of the Act, 1963, the period of
limitation started from such date of receipt of reply by
plaintiffs. The plaintiffs were supposed to file the suit for
performance within three years from such receipt of the
reply i.e. 05.08.2003.
4.4 Learned advocate Mr. Kapadia would further submit
that plaintiffs have wrongly interpreted the terms of ATS. It
is submitted that to fall plaintiff’s case within Part-I of Article
54, there must be fixed date for performance of ATS which
was never fixed in the present case. It is further submitted
that vide their notice dated 26.06.2003, the plaintiffs have
sought for specific performance of ATS by calling upon the
defendants to execute registered sale-deed in their favour,
which was refused by them on 05.08.2003. So, the case of
the plaintiffs would fall in Part-II of Article 54 of Act, 1963
and not part-I of such Article. In that view of the matter, the
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amendment sought for specific performance of ATS filed on
26.10.2009 is ex-facie and hopelessly time barred.
4.5 Learned advocate Mr. Kapadia would further submit
that once main prayer sought in the impugned application
i.e. specific performance of ATS is time barred than
alternative relief seeking refund of earnest money would
also time barred. So, no prayer made in the amendment
application can be granted in favour of the plaintiffs.
Nonetheless, learned advocate Mr. Kapadia would candid
during his course of submission that as per S. 55 (6) (b) of the
Act, 1882, amount of earnest money paid by vendee-
purchaser to vendor-seller would be considered as charged
upon immovable property and to claim refund of such
earnest money, period of limitation is fixed 12 years and not
3 years when it becomes due. It is submitted that to consider
as charge upon immovable property would only be property
so mentioned in ATS and no other property.
4.6 Learned advocate Mr. Kapadia would further submit
that as per settled legal position of law that if the
amendment sought for is ex-facie time barred, the Court
well within its rights to refuse such amendment. It is
submitted that the judgments which have been cited by the
learned advocate Mr. Shelat not applicable to the facts of
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the case. It is submitted that each cited case having its
peculiar facts and circumstance, wherein date of
performance is fixed in agreement to sell itself, thereby it
was held that period of limitation would begin to run from
such date fixed for performance, thereby considered it to fall
under Part-I of Article 54 of the Act, 1963 and not under
Part-II of the Act, 1963.
4.7 Learned advocate Mr. Kapadia would further submit
that as per settled legal position of law to fall the case in
Part-I of Article 54 of the Act, 1963, the date should be fixed
for performance, which is undisputedly not fixed as per
terms of ATS. It is submitted that mere on happening of
certain events i.e. clearance of title, defendants were require
to execute sale-deed in favour of plaintiffs would not be
ipso-facto considered as specific date fixed for performance
and then after only, it amounts to accrual of cause of action
in favour of plaintiffs.
4.8 Learned advocate Mr. Kapadia would further submit
that ordinarily in a case like present one, any agreement to
sell executed between the parties in relation to immovable
property, time is not considered as an essence of contract
and in that eventuality also, case would only fall under Part-II
of Article 54 of the Act, 1963 and not Part-I of such Article.
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4.9 To buttress his argument, learned advocate Mr.
Kapadia would refer and rely on the following decisions :-
(i) Ahmadsahab Abdul Mulla (dead) by proposed LRs. vs.
Bibijan and others reported in (2009) 5 SCC 462.
(ii) A. Valliammai vs. K.P. Murali and others reported in
AIR 2023 SC 4375.
(iii) Usha Devi and others vs. Ram Kumar Singh and others
reported in AIR 2024 SC 4591.
4.10 Making the above submission, learned advocate Mr.
Kapadia would request this Court to reject the present writ
application.
5. No other and further submissions have been made by
the learned advocates for the respective parties.
Point for determination
(i) Whether the case of the plaintiffs seeking specific
performance of ATS by way of an amendment in pending suit
would be governed by Part-I or Part-II of Article 54 of the
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(ii) Whether in the facts and circumstances of the case
the amendment sought for by plaintiffs can be granted or not?
If yes, what relief?
Analysis
6. To appreciate the controversy germane in the matter,
the facts which are observed hereinabove can be
summarized as follow.
(i) The ATS was executed between the parties on
24.03.2003 for the suit property in question.
(ii) As per condition No.3, the period fixed for ATS was
three months.
(iii) As per condition No.4 of ATS, within period of ATS,
defendants were supposed to get it cancelled the other
agreement to sale and to get it clear title of suit property.
(iv) As per very condition No.4 of ATS, the period of ATS
would continue until title gets cleared.
(v) As per such condition, after getting clear the title of suit
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property, defendants shall have to execute sale deed in
favour of plaintiffs.
(vi) The plaintiff sent pre-suit notice dated 26.06.2003
thereby sought for execution of sale deed which was refused
by defendants vide their reply dated 05.08.2003. So, in clear
terms, defendants-vendor refused to perform as per terms
of ATS.
(vii) The plaintiffs have specifically pleaded in para-6 & 8 in
their plaint came to be filed only on 03.04.2006 that
defendants neither accepting balance sale consideration nor
ready to execute sale deed. Its also observed that cause of
action arose as defendants not acted as per terms of ATS
and trying to sell suit property to third party thereby trying
to create charge over suit property.
(viii) The defendants have also specifically denied to
perform as per terms of ATS having so observed in Para-6 &
10 of the written statement. Its further stated that no
specific performance of ATS sought for by plaintiff and suit
having not filed under Specific Relief Act, 1963, suit not to be
entertained.
(ix) The trial Court has also rejected injunction citing S. 41
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(h) of the Specific Relief Act, 1963 having so observed that
though plaintiff could have sought for specific performance
of ATS but having not sought for such relief, no injunction
can be granted.
(x) The impugned amendment application came to be filed
on 26.10.2009 whereby sought for specific performance of
ATS and in alternative sought for refund of earnest money
with interest thereon having stated to charge as per S. 55 (6)
(b) of Act, 1882.
7. It further agreed between the parties that after all
objections which were mentioned in title clear certificate
dated 11.03.2003 issued by Solicitor M/S H Desai Company,
the defendants would execute sale deed in favour of
plaintiffs. It was also agreed that period of ATS would stand
continue till such time i.e. getting cleared title of subject
property.
8. It remains undisputed that within period of three
months, the defendants were not able to get it cleared title
of suit property. The defendants have issued notice dated
26.06.2003 whereby called upon the defendants to execute
sale-deed in their favour. It clearly mentioned in such notice
that failing to execute sale-deed, they (vendee) would file
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suit for specific performance against them (vendor).
9. The defendants have replied to such notice vide their
Advocate’s letter dated 05.08.2003, completely denying
existence of ATS as well as refused to execute sale-deed. So,
plaintiff had an intimation/notice that vendor refused to
perform his part of the contract. After receipt of such
refusal, for quite long time, plaintiffs did nothing.
Nonetheless, suit in question came to be filed only on
03.04.2006 wherein they did not sought for any specific
performance of ATS, but only sought declaration that
defendants be directed to get title clear of suit property.
10. The defendant No.2 having filed his written statement
on 21.04.2006 specifically pleaded in Para-10 that plaintiffs
having not sought for specific performance and no relief
prayed under Specific Reliefs Act, the suit itself is not
maintainable and as no cause of action arose.
11. These above-stated facts are not in dispute between
the parties. In light of the aforesaid facts, it is very much
clear like a day that defendants-vendor have refused to
perform their obligations under ATS on 05.08.2003 when
issued aforesaid reply. It was issued in pursuance to the
performance sought by plaintiffs vide its notice dated
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26.06.2003 knowing-fully well that defendants have not
cleared the objections and there was no clear title with them
for execution of sale-deed.
12. At this stage, it would be appropriate to quote Article 54
of the Act, 1963 which would be applicable to the facts of
present case reads as follow:
54. For Three years The date fixed for the
specific performance, or if no such
performance date is fixed, when the
of a contract plaintiff has notice that
performance is refused”
13. According to the plaintiffs, the case would fall in Part-I
of Article 54 of the Act, 1963. Whereas, defendants would
state that it fall in Part-II of said article. As such, when
plaintiffs having asked for performance of agreement, which
was refused by the defendants, the cause of action arose to
the plaintiffs to file suit for specific performance within
three years from such refusal i.e. accrual of cause of action.
14. Learned advocate Mr. Shelat would emphasized that
merely because such performance was sought for and even
refused by the defendants would not ipso-facto considered
the case of plaintiffs falls under Part-II of Article 54 of the
Limitation Act, 1963 inas much as when terms of ATS would
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otherwise. Such argument is not only misconceived on facts
but also at law and run contrary to what was intended by the
parties while executing ATS.
15. Having so clearly understood between the parties that
on getting cleared tittle by defendants then-after they will
have to execute the sale deed in favour of the plaintiffs and
till such time ATS would stand alive itself suggests that time
was never an essence of contract (ATS) executed between
the parties.
16. It is well settle legal position of law that so far as
contract in relation to immovable property is concerned,
ordinarily, time is not considered to be an essence of
contract, unless terms so fixed by the parties to the contract.
17. As such, the judgments cited by the learned advocate
Mr. Shelat would not be applicable to the facts of the
present case and it is distinguishable one which I do so
herein below.
18. One of such cited judgment, in the case of Ramzan
(supra) also cited before the trial Court as well, which is
correctly distinguished by the trial Court having not applied
to the facts of the case. In the case of Ramzan (supra) terms
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of agreement to sell which is reproduced by Hon’ble Apex
Court in para-6 of the judgment itself, would clearly
observed that when the mortgage deed gets redeemed and
take the papers of registry in possession of vendor, on that
day, vendor agreed to execute sale-deed in favour of vendee.
So, in light of such specific terms of agreement between the
parties, the Hon’ble Apex Court arrived at conclusion that
period of limitation started running on happening of such
date i.e. redemption of mortgage. Whereas, in present case,
as observed hereinabove, no such date was fixed between
the parties. The relevant observation of para-6 of said
decision reads as under :-
6. The relevant provisions in the alleged agreement of sale as
quoted in the judgment of the trial court 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 Jethmal 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.”
(emphasis supplied)
The question is whether a date was ‘fixed’ for the performance of the
agreement and in our view the answer is in the affirmative. It is true
that a particular date from the calendar was not mentioned in the
document and the date was not ascertainable originally, but as soon
as the plaintiff redeemed the mortgage, it became an ascertained
date. If the plaintiff had, immediately after the redemption, filed the
suit, could it be thrown out on the ground that she was not entitled to
the specific performance asked for? We do not think so. She would
have been within her rights to assert that she had performed her part
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of the contract and was entitled to insist that her brother should
complete his part. The agreement is a typical illustration of a
contingent contract within the meaning of Section 31 of the Indian
Contract Act, 1872 and became enforceable as soon as the event of
redemption (by the plaintiff herself) happened. We agree with the
view of the Madras High Court in R. Muniswami Goundar v. B.M.
Shamanna Gouda [AIR 1950 Mad 820] expressed in slightly different
circumstances. The doctrine of id certum est quod certum reddi
potest is clearly applicable to the case before us which in the
language of Herbert Broom (in his book dealing with legal maxims) is
that certainty need not be ascertained at the time; for if, in the fluxion
of time, a day will arrive which will make it certain, that is sufficient. A
similar question had arisen in Duncombe v. Brighton Club and Norfolk
Hotel Compan [(1875) 10 QB 371], relied upon in the Madras case.
Under an agreement, the plaintiff had supplied some furniture to the
defendant for which payment was made but after some delay. He
claimed interest. The rule at common law did not allow interest in
such a case, and the plaintiff in support of his claim relied upon a
statutory provision which could come to his aid only if the price was
payable at a certain time. Blackburn, J. observed that he did not have
the slightest hesitation in saying that the agreement contemplated a
particular day, which, when the goods were delivered would be
ascertained, and then the money would be payable at a certain time;
but rejected the plaintiff’s demand on the ground that the price did not
become payable by the written instrument at a certain time. The other
learned Judges did not agree with him, and held that the statute did
not require that the document should specify the time of payment by
mentioning the day of payment. If it specified the event upon which
the payment was to be made, and if the time of event was capable of
being ascertained, the requirements of the section were satisfied. The
same is the position in the case before us. The requirement of Article
54 is not that the actual day should necessarily be ascertained upon
the face of the deed, but that the basis of the calculation which was to
make it certain should be found therein. We, accordingly, hold that
under the agreement the date for the defendant to execute the sale
deed was fixed, although not by mentioning a certain date but by a
reference to the happening of a certain event, namely, the redemption
of the mortgage; and, immediately after the redemption by the
plaintiff, the defendant became liable to execute the sale deed which
the plaintiff was entitled to enforce. The period of limitation thus
started running on that date. The case is, therefore, covered by the
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first part of Article 54 (third column) and not the second part.”
(emphasis supplied)
19. Likewise, the decision in the case of Katta Sujatha
Reddy (supra) would also not be applicable to the facts of
the present case inasmuch as, it is so observed in Para-35 of
such decision that date was fixed for payment of
consideration i.e. three months from the date of agreement
and in that peculiar facts and circumstance of the case, the
Hon’ble Apex Court considering that date was fixed for
specific performance of contract and having not filed suit
within the period of limitation as prescribed under Part-I of
Article 54 of the Limitation Act, 1963, the suit was held to be
time barred. As such, in Para-38 it is specifically observed
that when suit filed by the purchaser was clearly time barred
by limitation, no ground of defence could have remedied
such breach of condition. The relevant observation of facts
made by the Ho’ble Apex Court in the aforesaid case,
requires to be reproduced, which is reproduced.
“35. In view of the aforesaid provisions, the vendors were
entitled to rescind the contract as there was a breach of condition,
i.e, ‘time was the essence’. Coming back to the point of limitation,
it is clear that Article 54 of the Limitation Act mandates that in this
case at hand, the date fixed for payment of consideration was
three months from the date of the agreements (i.e. 26.03.1997 and
27.03.1997). In any case, the time period for filing the suit had
commenced from 26/27.6.1997 and would have expired after three
years, i.e., in the end of June 2000.
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xxxxxxxx
37. In this context, we may note that Article 54 of the Limitation
Act provides for two consequences based on the presence of fixed
time period of performance. It is only in a case where the time
period for performance is not fixed that the purchaser can take
recourse to the notices issued and the vendors’ reply thereto. In
the case at hand, the aforesaid circumstances do not come into
play as a fixed time period was clearly mandated by Clause 3 read
with Clause 23 of the agreements to sell, as explained above.
38. In light of the above, we may note that the suit filed by the
purchaser was clearly barred by limitation in view of the first part of
Article 54 of the Limitation Act and no amount of payment of
advance could have remedied such a breach of condition.
(emphasis supplied)
20. Per Contra, the Full Bench of the Hon’ble Apex Court in
the case of Ahmadsahab Abdul Mulla (dead) by proposed
LRs. (supra) had an occasion to decide the reference made
to them as to whether use of expression ‘date’ used in
Article 54 of the Schedule to the Limitation Act, is suggestive
of a specific date in the calendar?. The Full Bench of the
Hon’ble Apex Court in the aforesaid case answered thus :-
“2. The relevant question is : whether the use of the expression “date”
used in Article 54 of the Schedule to the Limitation Act, 1963 (in short
“the Act”) is suggestive of a specific date in the calendar?
6. Article 54 of the Schedule to the Act reads as follows:
“Description of suit Period of Limitation Time from which period
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begins to run
54. For specific Three years The date fixed for the
performance of a performance, or if no such
contract date is fixed, when the
plaintiff has notice that
performance is refused”
rd
9. According to Advanced Law Lexicon by P. Ramanatha Aiyar, 3
Edition 2005, the word ‘date’ means as follows:
“Date. (As a noun) The point of time at which a transaction or
event takes place; time given or specified; time in some way
ascertained and fixed; in a deed, that part of the deed or writing
which expresses the day of the month and year in which it was
made, (2 Bl. Commn. 304; Tomlin). In Bement v. Trenton
Locomotive, etc., Mfg. Co., 32 NLJ 513 (515), it is said : `The
primary signification of the word date, is not time in the abstract,
nor time taken absolutely but, as its derivation plainly indicates,
time given or specified time in some way ascertained and fixed;
this is the sense in which the word is commonly used. When we
speak of the date of a deed, we do not mean the time when it
was actually executed but the time of its execution, as given or
stated in the deed itself.
“Where a deed bears no date, or an impossible date, and in the
deed reference is made to the `date’, that word must be
construed `delivery’; but if the deed bears a sensible date, the
word `date’, occurring in the deed, means the day of the date,
and not that of the delivery”
“Date”, though sometimes used as the shortened form of “day of
the date”, is not its synonym; but mean the particular time on
which an instrument is given, executed, or delivered.
“The word `date’ is much more commonly descriptive of a day
than of any smaller division of time” (per Simpson v. Marshall,
37 SLR 316).
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“Date” means day, so that where a cover note providing for
temporary insurance of a motor car expires “15 days after date
of commencement” it runs for the full 15 days after the day on
which it was to commence (Cartwright v. Mac Cormack;
Trafalgar Insurance Co. (Third Party), (1963) 1 WLR 18).”
10. ‘Fixed’ in essence means having final or crystallized form or
character not subject to change or fluctuation.
11. The inevitable conclusion is that the expression ‘date fixed for
the performance’ is a crystallized notion. This is clear from the fact that
the second part “time from which period begins to run” refers to a case
where no such date is fixed. To put it differently, when date is fixed it
means that there is a definite date fixed for doing a particular act. Even
in the second part the stress is on ‘when the plaintiff has notice that
performance is refused’. Here again, there is a definite point of time,
when the plaintiff notices the refusal. In that sense both the parts refer
to definite dates. So, there is no question of finding out an intention
from other circumstances.
12. Whether the date was fixed or not the plaintiff had notice that
performance is refused and the date thereof are to be established with
reference to materials and evidence to be brought on record. The
expression ‘date’ used in Article 54 of the Schedule to the Act
definitely is suggestive of a specified date in the calendar. We answer
the reference accordingly…………”
(emphasis supplied)
21. So, the Full Bench of the Hon’ble Apex Court in the
aforesaid case has clearly observed that expression ‘date’
used in Article 54 of the Schedule to the Limitation Act,
definitely is suggestive of specified date in the calendar.
22. Likewise in the case of Usha (supra) while considering
terms of agreement to sell so as to apply Article 54 of
Limitation Act, 1963 held thus :-
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“8. We need not enter into the other issues as we are convinced that
the suit was barred by limitation. The limitation under Article 54 of the
Limitation Act, 1963 for instituting a suit for specific performance of a
contract would be three years from the date fixed for the performance,
or, if no such date is fixed, when the plaintiff has notice that
performance is refused. Article 54 of the Limitation Act, 1963 is
reproduced hereunder:
54. For Three years The date fixed for the
specific performance, or if no such
performance date is fixed, when the
of a contract plaintiff has notice that
performance is refused”
9. Coming to the facts of the present case, we find that in the
agreement dated 17.12.1989, it is specifically mentioned that the sale
deed would be executed within one month from the date of the said
agreement. The period of one month would expire on 16.01.1990, and
once there is a specific date fixed for performance, the limitation period
would be three years from the said date, which would expire on
16.01.1993. The Trial Court thus held that the suit was barred by
limitation as it was filed in September 1993.”
(emphasis supplied)
23. Similarly in the case of A. Valliammai (supra), the
Hon’ble Apex Court after considering the terms of
agreement to sell comes to the conclusion that though time
was fixed before which sale deed to be executed but the
same was extended for further fixed period by way of
endorsement, such act of party for extending period of
execution of sale-deed till such time, as fixed vide
agreement to sell and endorsement, was not considered as
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essence of contract and thus held Part-I of Article 54 of the
Act, 1963 would not be applicable but Part-II of Article 54 of
the Act, 1963 would apply. The relevant observation so made
by the Hon’ble Apex Court in the aforesaid judgment reads
as under :-
“20. Article 54 of Part II of the Schedule to the Limitation Act, 1963
stipulates the limitation period for filing a suit for specific performance
as three years from the date fixed for performance, and in alternative
when no date is fixed, three years from the date when the plaintiff has
notice that performance has been refused. Section 9 of the Limitation
Act, 1963 stipulates that once the limitation period has commenced, it
continues to run, irrespective of any subsequent disability or inability to
institute a suit or make an application.
21. It is an accepted position that Rs. 1,00,000/- was paid at the
time of execution of the agreement to sell (Exhibit A-1), and the
balance consideration of Rs. 31,45,000 was required to be paid by
26.05.1989. Time for payment of Rs. 31,45,000/- and execution of the
sale deed was extended till 26.11.1989 vide the endorsement (Exhibit
A-3). If we take the date 26.11.1989 as the date for performance, the
suit for specific performance filed on 27.09.1995, is barred by limitation.
However, we agree with the submission raised on behalf of K.P. Murali
and S.P. Duraisamy, that the aforesaid time, as fixed vide the
agreement to sell and the endorsement (Exhibit A-1 and A-3), was not
the essence of the contract and therefore, the first part of Article 54 will
not be applicable. Instead, the second part of Article 54 will apply. On
the interpretation of Article 54, this Court in Pachanan Dhara v.
Monmatha Nath Maity, has held that for determining applicability of the
first or the second part, the court will have to see whether any time was
fixed for performance of the agreement to sell and if so fixed, whether
the suit was filed beyond the prescribed period, unless a case for
extension of time or performance was pleaded or established.
However, when no time is fixed for performance, the court will have to
determine the date on which the plaintiff had notice of refusal on part of
the defendant to perform the contract. Therefore, we have to examinePage 29 of 41
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whether K. Sriram or his assignees, K.P. Murali or S.P. Duraisamy, had
notice that performance had been refused by A. Valliammai and, if so,
from which date.”
(emphasis supplied)
24. The conjoint reading of the ratio of aforesaid decisions
of the Hon’ble Apex Court, would lead to one conclusion
that if there is a date fixed for performance of agreement to
sell executed between the parties, the case would fall under
Part-I of Article 54 of the Act, 1963 otherwise not. In that
eventuality, time (limitation) begin to run from such date
fixed for performance and vendee-purchaser will have to file
suit for specific performance within three years from such
date fixed. Whereas, in other cases, when there is no such
date is fixed in agreement to sell executed between the
parties, a case would fall in Part-II of Article 54 of the Act,
1963, time begins to run when vendee-purchaser (plaintiffs)
have noticed that performance is refused by vendor-seller
(defendants).
25. Having discussed above and in view of aforesaid,
considering the terms of ATS more particularly condition
no.4 of ATS, date was never fixed for performance by the
parties to the ATS, thereby, case of the plaintiffs would not
fall in Part-I of Article 54 of the Act, 1963 but it would fall
under Part-II of Article 54 of the Act, 1963. What was agreed
between the parties under ATS was that once title gets
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cleared, vendor execute sale deed in favour of vendee but no
time limit and or date fixed for its performance once such
title gets clear.
26. As plaintiffs have received notice of refusal of
performance of ATS by defendants vide their reply dated
05.08.2003, within 3 years from such receipt of refusal of
performance by defendants, the plaintiffs could have filed
suit for specific performance. Undisputedly, while filing suit
in question on 03.04.2006, the plaintiffs had not sought for
either specific performance of ATS nor similar other relief.
Nevertheless, the same sought for by way of amendment
filed only on 26.10.2009 which is ex-facie, apparently and
hopelessly time barred as it ought to have been filed within 3
years from such refusal as stated in part-II of Article 54 of the
Act, 1963. So, when the amendment sought for by the
plaintiffs seeking specific performance of ATS was time
barred claim, the trial Court well within its right to reject the
impugned amendment application.
27. It is true as held by the Hon’ble Apex Court in the case
of Sanjeev Builders (supra) that all amendments should be
allowed liberally but in a very same judgment, the Hon’ble
Apex Court has clearly observed that if claim made is time
barred, such claim by way of amendment cannot be allowed,
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which reads as under :-
“71. Our final conclusions may be summed up thus:
71.1 Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application thereof are
satisfied and the field of amendment of pleadings falls far beyond its
purview. The plea of amendment being barred under Order II Rule 2
CPC is, thus, misconceived and hence negatived.
71.2 All amendments are to be allowed which are necessary
for determining the real question in controversy provided it does not
cause injustice or prejudice to the other side. This is mandatory, as is
apparent from the use of the word “shall”, in the latter part of Order VI
Rule 17 of the CPC.
71.3 The prayer for amendment is to be allowed
71.3.1 if the amendment is required for effective and proper
adjudication of the controversy between the parties, and71.3.2 to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other
side,
(b) by the amendment, the parties seeking amendment does
not seek to withdraw any clear admission made by the party
which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable accrued
right (in certain situations).
71.4 A prayer for amendment is generally required to be allowed
unless
71.4.1 By the amendment, a time barred claim is sought to be
introduced, in which case the fact that the claim would be time barred
becomes a relevant factor for consideration,
71.4.2 The amendment changes the nature of the suit,
71.4.3 The prayer for amendment is malafide, or
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71.4.4 By the amendment, the other side loses a valid defence.
71.5 In dealing with a prayer for amendment of pleadings, the
court should avoid a hyper technical approach, and is ordinarily
required to be liberal especially where the opposite party can be
compensated by costs.
71.6 Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a more
satisfactory decision, the prayer for amendment should be allowed.
71.7 Where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred cause
of action, the amendment is liable to be allowed even after expiry of
limitation.
71.8 Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the plaint.
71.9 Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable, the prayer
for amendment could be allowed and the issue of limitation framed
separately for decision.
71.10 Where the amendment changes the nature of the
suit or the cause of action, so as to set up an entirely new case,
foreign to the case set up in the plaint, the amendment must be
disallowed. Where, however, the amendment sought is only with
respect to the relief in the plaint, and is predicated on facts which are
already pleaded in the plaint, ordinarily the amendment is required to
be allowed.
71.11 Where the amendment is sought before
commencement of trial, the court is required to be liberal in its
approach. The court is required to bear in mind the fact that the
opposite party would have a chance to meet the case set up in
amendment. As such, where the amendment does not result in
irreparable prejudice to the opposite party, or divest the opposite party
of an advantage which it had secured as a result of an admission by
the party seeking amendment, the amendment is required to be
allowed. Equally, where the amendment is necessary for the court to
effectively adjudicate on the main issues in controversy between the
parties, the amendment should be allowed. (See Vijay Gupta v.
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Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”
(emphasis supplied)
28. At this stage, it would also be apt to refer and rely upon
the decision of the Hon’ble Apex Court in the case of
Revajeetu Builders and Developers Vs. M/s Narayanswamy
and sons and others reported in (2009) 10 SCC 84 (paras 63-
64) wherein held thus.
“FACTORS TO BE TAKEN INTO CONSIDERATION WHILE
DEALING
WITH APPLICATIONS FOR AMENDMENTS:
63. On critically analyzing both the English and Indian cases,
some
basic principles emerge which ought to be taken into consideration
while allowing or rejecting the application for amendment.
(1)Whether the amendment sought is imperative for proper and
effective adjudication of the case;
(2)Whether the application for amendment is bona fide or mala
fide;
(3)The amendment should not cause such prejudice to the other
side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to
multiple litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case;
(6) As a general rule, the court should decline amendments if a
fresh
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suit on the amended claims would be barred by limitation on the
date of application.
These are some of the important factors which may be kept in
mind
while dealing with application filed under Order VI Rule 17. These
are only illustrative and not exhaustive.
64. The decision on an application made under Order VI Rule 17 is
a
very serious judicial exercise and the said exercise should never
be
undertaken in a casual manner. We can conclude our discussion
by
observing that while deciding applications for amendments the
courts
must not refuse bona fide, legitimate, honest and necessary
amendments and should never permit mala fide, worthless and/or
dishonest amendments.”
(emphasis supplied)
29. Thus, considering the aforesaid peculiar facts and
circumstances of the present case, I am in complete
agreement with the view taken by the trial Court having
arrived to the conclusion that case of plaintiffs would not fall
in Part-I but fall in Para-II of Article 54 of the Act, 1963 and
thereby, specific performance of ATS sought for by way of
amendment having time barred then, it cannot be granted.
30. The next limb of argument of learned advocate Mr.
Shelat in relation to another amendment sought for thereby
plaintiffs asking for refund of earnest money contending
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interalia that such amount would be statutory charged over
the suit property as per Section 55 (6) (b) of the Act, 1882. As
such there is no cavil that earnest money paid by vendee to
vendor would be charged on the immovable property which
is subject matter of ATS. As per settled legal position, taken
into account Article 62 of the Act, 1963, period to recover
such amount is 12 years and not 3 years. The relevant
provisions reads thus :
THE TRANSFER OF PROPERTY ACT, 1882
“55. Rights and liabilities of buyer and seller.– In the absence of a
contract to the contrary, the buyer and the seller of immoveable
property respectively are subject to the liabilities, and have the
rights, mentioned in the rules next following, or such of them as are
applicable to the property sold
************
(6) The buyer is entitled– *********
(b) unless he has improperly declined to accept delivery of the
property, to a charge on the property, as against the seller and all
persons claiming under him 1*** to the extent of the seller’s interest
in the property, for the amount of any purchase-money properly
paid by the buyer in anticipation of the delivery and for interest on
such amount; and, when he properly declines to accept the
delivery, also for the earnest (if any) and for the costs (if any)
awarded to him of a suit to compel specific performance of the
contract or to obtain a decree for its rescission.”
THE LIMITATION ACT, 1963
Article 62 To enforce payment Twelve When the
of money secured
years money sued
by a mortgage or
otherwise charged for becomes
upon immovable
due
property.
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31. It is no longer remain res integra that vendee-buyer can
recover earnest money so paid by him while entered into
ATS with seller within 12 years when the money sued for
becomes due albeit, fulfilling condition/contingency so
prescribed under S. 55 (6) (b) of the Act,1882. [See- (I) DELHI
DEVELOPMENT AUTHORITY NEW DELHI Versus SKIPPER
CONSTRUCTION CO. (PVT) LTD reported in (2000) 10 SCC
130, (II) VIDEOCON PROPERTIES LTD Versus
BHALCHANDRA LABORATORIES reported in (2004) 3 SCC
711 & (III) Asgar S Patel (supra)].
32. As observed herein above while recording the
submissions of learned advocate Mr. Kapadia appearing for
defendants-vendor that he is unable to countenance such
position of law. Nonetheless, he would request this Court to
see that plaintiff would not allow to charge over other
property of vendor than suit property.
33. Thus, in view of aforesaid, the an alternative relief
sought for in the amendment by plaintiffs in regards to
refund of earnest money with interest could not have been
disallowed by Trial Court as its not time barred having filed
amendment for recovery of earnest money within 12 years
from its becomes due. To that extent, order impugned
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having ignored such provisions of law and not granted such
part of amendment is erroneous, perverse and contrary to
law. At the same time, defendants can also have a right to
object against refund of earnest money by filing appropriate
amendment in the written statement. The entitlement of
plaintiff to get back earnest money with interest will have to
be decided by trial Court while adjudicating other issues in
accordance with law.
Conclusion
34. In view of the aforesaid observations, discussions and
reasons, I am of the view that the case of the plaintiffs would
fall under Part-II of Article 54 of the Act, 1963 not fall under
Part-I of Article 54 of the Act, 1963 as claimed by plaintiffs.
35. Having so observed hereinabove, the claim made by the
plaintiffs by way of the amendment seeking specific
performance of ATS having found ex-facie, apparently and
hopelessly time barred could not have been allowed which is
correctly not allowed by Trial Court. To that extent, no error
much less any gross error of law or jurisdictional error
committed by Trial Court refusing to amend the plaint.
36. Nonetheless, another part of amendment i.e.
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alternative prayer sought for, amendment of pleading i.e.
para-6-a of plaint qua refund of earnest money with interest
and addition of prayer to be incorporated to that effect as an
alternative prayer to be made in para-9-a of the plaint in
regards to refund of earnest money i.e. Rs. 12,00,000/ with
interest as prayed requires to be accepted which is hereby
accepted as its not time barred claim in view of S. 55 (6) (b)
of the Act, 1882 read with Article 62 of the Act, 1963.
Likewise, valuation of plaint be suitably amended as prayed
in last portion of the impugned amendment application. To
that extent, having not allowed aforesaid amendment, trial
Court has committed serious error in law and acted contrary
to provisions of law thereby committed jurisdictional error.
Such error requires to be corrected by this Court while
exercising its supervisory jurisdiction under Article 227 of the
Constitution of India, which I do so. [See – Waryam Singhvs
vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) &
Bhudev Mallick alias Bhudeb Mallick and Another vs.
Ghoshal and Others, reported in 2025 SCC OnLine SC 360
(para 53 to 58)]
37. Accordingly, impugned amendment application filed
below Ex. 28 in aforesaid suit is hereby partly allowed to the
aforesaid extent only whereby alternative pleading & prayer
made in the impugned application is hereby accepted being
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allowed.
38. In view of the aforesaid conclusion, there is some merit
in the present writ application, thus partly allowed to the
aforesaid extent. Consequently, impugned order dated
19.01.2011 passed by City Civil Court No.17, Ahmedabad City
below Ex. 27 & 28 in Civil Suit (CCC) No. 776 of 2006 is hereby
partially disturbed thereby, partly quashed and set aside to
aforesaid extend only.
39. As a sequel, the plaintiff is hereby permitted to carry out
the amendment in the plaint as aforesaid by serving an
advance copy to defendants within period of 2 weeks from
date of receipt of the copy of this order. The plaintiffs shall
also pay necessary court fees as per amended claim of the
plaint within period of 4 weeks after carry out such
amendment.
40. The defendants can file additional written statement
against amended plaint received from plaintiffs within 2
weeks from date of receipt of such amended plaint.
41. All the issues which arise out of the pleading of the
parties including requires any additional issue to be framed
by trial Court because of the amendment granted hereby, be
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decided in accordance with law by trial Court albeit, without
being influenced by any aforesaid observations so made.
42. Rule is made absolute to the aforesaid extent only. No
order as to costs. The interim relief if any granted earlier
stands vacated forthwith. The trial Court should proceed
with the suit at earliest.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/
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