TARA CHAND DUBEY Vs. AJIT KUMAR MUKHERJEE

JUDGEMENT

(1.) The predecessor-in-interest of the appellants herein were the owners of premises No. 86/12 situated in Kurmi Tola, Maqboolganj, Police Station Qaiserbagh, Lucknow. It appears that predecessor-in-interest of the plaintiffs took a sum of Rs. 7,000 as loan from the defendant-respondent. In lieu thereof, the predecessor-in-interest of the plaintiffs executed a registered sale deed on 20.8.1969, in respect of the said premises in favour of the respondent. On the same day, the respondent executed a registered deed of reconveyance agreeing to reconvey the property within five years and that he would deliver the vacant possession of the premises on the date of the execution of deed of reconveyance. On 13.3.1971, the predecessor-in-interest of the appellants sent a registered letter to the respondent calling upon him to execute the sale deed in their favour and to deliver the vacant possession of the said premises after accepting the agreed sum of Rs. 7,000. Notice further required the respondents to intimate the date and time when the sale deed is to be executed and registered. It is not disputed that the said notice was received and acknowledged by the respondent. On 15.5.1971, the respondent in reply to the notice dated 13.3.1971, intimated the plaintiffs that the date for execution and registration of sale deed is solely at his discretion within the period of five years. However, it was intimated that he is prepared to execute the sale deed on any date in the first week of August, 1974. In between time, it appears that the transfer of immovable property was banned in the State of Uttar Pradesh w.e.f. July 15, 1972. On 12.8.1974, the plaintiffs sent a notice to the respondent for executing the sale deed as per reply dated 15.5,1974. The plaintiffs also sent a telegram to the respondent requesting him to comply with the terms of the agreement dated 20.8.1969. It is alleged that the plaintiffs, on 19.8.1974 remained present throughout in the office of the Sub-Registrar, Lucknow. However, the respondent did not turn up. Under these circumstances, the plaintiffs brought a suit for specific performance for agreement of sale of the property. A written statement was filed on behalf of the defendant-respondent wherein a plea was taken that the suit is barred by limitation. It was also pleased that since the plaintiffs were not ready and willing to perform their part of the contract, they are not entitled to decree under Section 16(c) of the Specific Relief Act. The trial court, after considering the entire matter, came to the conclusion that the suit was brought within the period of limitation and further the plaintiffs were always ready and willing to perform their part of the contract. In view of the matter, the trial court decreed the suit. The said decree was affirmed by the first appellate court. However, the High Court, in the second appeal, set aside the Judgment of the court below and dismissed the suit. It is against the said judgment, the plaintiffs are in appeal before us.

(2.) Learned counsel appearing for the appellants urged that the view taken by the High Court that the suit was barred by limitation and that the plaintiffs were not ready and willing to perform their part of the contract is patently erroneous. Learned counsel further submitted that there is ample evidence on record to show that the plaintiffs were always ready and willing to perform their part of the contract. Therefore, the judgment deserves to be set aside. Learned counsel appearing for the respondent reiterated the grounds on which the High Court allowed the appeal of the respondent. We have looked into the matter and found that the judgment of the High Court suffers from serious infirmity.

(3.) Coming on the question of limitation what, we find is that in pursuance of notice dated 13.3.1971, the respondent sent a reply on 15.5.1971. Paragraph 7 of the said reply runs as follows :