MARY Vs. GOPALAN

JUDGEMENT

(1.) Plaintiffs are the appellants. First plaintiff and her children including 2nd plaintiff are toe owners of the plaint schedule property. Plaintiffs mortgaged the property to the 1st defendant. One of the sons of the 1st plaintiff who did not join the mortgage deed assigned his 1/6th right over the property to the 2nd defendant in 1967. Thereafter as per Ext.A1 dated 12-11-1970 plaintiffs and defendants 1 and 2 entered into an agreement whereby defendants 1 and 2 agreed to reconvey the mortgage right and 1/6 right over the equity of redemption in favour of the plaintiffs for Rs. 1.750/-. Rs. 900/- was paid as advance on the date of Ext. Al itself. The further provision is that when the plaintiffs raise the balance amount of Rs. 850/- and make a demand defendants should convey their rights. On 10-2-1972 defendants 1 and 2 issued Ext. B2 notice to the plaintiffs informing them that inspite of repeated demands they did not come forward with money to take the document and therefore defendants 1 and 2 are not any further willing to convey the property. Without sending a reply plaintiffs waited without doing anything for more than S years. On 22-6-1977 they issued Ext. A2 notice to the defendants requesting them to convey the property on receipt of the balance amount. Defendants refused and therefore the suit was filed in 1978 for specific performance of Ext. Al. Defendants contended that plaintiffs were not ready and willing to perform their part of the contract and further the suit is barred by limitation.

(2.) The Trial Court held that under the provisions of Ext. Al cause of action will arise only after demand is made by the plaintiffs and therefore intimation of refusal evidenced by Ext.B2 before demand was made by the plaintiffs will not be sufficient. For that reason it was held that the suit is not barred by limitation. A decree was given as prayed for. The appellate court disagreed with the Trial Court and found that the suit is barred by limitation. The appeal was allowed and the suit was dismissed.

(3.) The only question to be decided is whether the claim is barred by limitation or not. Agreement was on 12-11-1970. Both the courts below found that by Ext. B2 notice dated 10-2-1972 defendants informed the plaintiffs that performance is refused on the ground that plaintiffs did not cone forward ready with money to take the sale deed in spite of repeated demands by the defendants Therefore undoubtedly 10-2-1972 is the date on which the plaintiffs had notice that performance is refused. They did not respond to Ext.B2 and waited till 22-6-1977. Ext.A2 notice was issued on that day informing defendants 1 and 2 that they are ready with funds. Defendants were asked to execute the document. There is no dispute regarding the fact that Art.54 of the Limitation Act is the relevant article that is applicable. Period of limitation is three years and it starts from the date fixed for performance of the contract, or, if no such date is fixed, when the plaintiff has notice that performance is refused.