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CASE NO.: Appeal (civil)  6202-6203 of 2004

PETITIONER: S. Brahmanand and Ors.                                           

RESPONDENT: K. R. Muthugopal (D) and Ors.                                    

DATE OF JUDGMENT: 21/10/2005

BENCH: B. N. Srikrishna & C. K. Thakker

JUDGMENT: J U D G M E N T

SRIKRISHNA, J.

       These two appeals by special leave impugn the common judgment of  the High Court of Kerala rendered in First appeals AS Nos. 393/97 (E) and  281/97 (E) setting aside the decree made by the trial court in OS No. 647/95.

       The appellants before us were the plaintiffs before the trial court in  Original Suit No. 647/95 and the respondents were the respective defendants  in the said suit. For the sake of convenience, the parties are hereinafter  referred to as they were arrayed in the suit before the trial court i.e. as  Plaintiffs and Defendants.

The Facts:         On 10.3.1989 an agreement was entered into between Defendants 1  and 2 (K.R. Muthugopal and V. Rajan, respectively) on the one hand, and  Plaintiffs 1, 2 and 3 (S. Brahmanand, S. Vinod and G. Ratna Bai,  respectively), on the other hand, for sale of the suit property which  comprised two shops and one godown in Kozhikode. The preambulatory  part of the agreement makes it clear that as on the date of the agreement a  stranger, by name, Thazhekeepattu Moosakutty had filed two suits O.S. Nos.  98/87 and 99/87 before the II Additional Sub Judge, Kozhikode, alleging  that there was an agreement to sell the suit property to him of which there  was a breach, and seeking specific performance of the alleged agreement of  the sale of the suit property. By the agreement of sale dated 10.3.1989 the  parties specifically recorded that, the Defendants had not made any such  agreement of sale of the suit property to the said Moosakutty. According to  the Plaintiffs and the Defendants, the suit property was originally let out to  Bhatt family (of which Defendants 3 & 4 are members) who refused to  vacate it on the request made by the Defendants 1 and 2 (i.e. the landlords).  A suit for eviction was filed against the said Bhatt family and a decree for  eviction was made. Even before the decree could be executed, two suits had  been filed in which Moosakutty alleged that the Plaintiffs had entered into  an agreement to sell the suit property to him and sought specific  performance. Agreement dated 10.3.1989 broadly referred to the  developments and the fact that as on the date of the agreement an interim  injunction had been issued by the civil court in O.S. Nos. 98/87 and 99/87  restraining the transfer of the suit property to third parties. The agreement  shows that the parties were well aware of the pending litigation and yet the  Plaintiffs (purchasers) under the agreement had offered to purchase the same  for a total consideration of Rupees six lakhs only, which was accepted  "subject to the restrictions contained in the interim orders mentioned above".  Clauses (1), (3), (5) and (9) of the agreement are relevant and are reproduced  as under:

"(1).  That the first parties agreed to sell and the second parties  agree to purchase the said properties for a total consideration of

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Rs.6,00,000/- (Rupees six lakhs only) immediately after the  interim order in O.S.  99/88 and O.S. 98/88 imposing restriction  on alienation is evicted by the Court."

"(3)    That the second parties shall tender the valuable amount  of Rs.5,78,000/- (Rupees five lakh seventy eight thousand only)  to the first parties immediately on the termination of the  proceedings in court as mentioned above, when the first parties  shall cause the sale deed executed and registered in favour of  the second parties with all the valid title deeds."

"(5)    That the sale would be complete when the parties comply  with the conditions herein."

"(9)    That the first parties do hereby covenant undertake and  make the second party believe that the first parties have good  title to the said properties and it is free from all encumbrances,  charges attachments, claims and demands whatsoever and is not  affected by any notice or scheme for acquisition or requisition  proceedings apart from the temporary legal impediment  imposed on transfer in O.S. 98/88 and O.S. 99/88 mentioned  above and if there is found any defect in title the first parties  shall be liable to pay back all money received from the second  parties along with all damages incurred by the second parties of  such defects of title of the first parties. It is also decided that the  advance amount will be the first charge over the properties."                  On 10.6.1992 the suits filed by Moosakutty, O.S. Nos. 98/87 and  99/87 were dismissed and interim orders granted therein stood vacated.  Though, Moosakutty made an application for continuation of the injunction  order till he was able to file an appeal, this prayer was rejected by the civil  court, but the order of status quo continued for a period of two weeks from  the date of dismissal of the suits i.e. upto 24.6.1992.

       On 11.6.1992 the Plaintiffs were put in possession of the godown by  one Dandayudhan, who was the constituted attorney of Defendants 1 and 2.  On 18.6.1992, First Defendant addressed a letter to the First Plaintiff and  what he said therein is very material. He said:          "Dear Brahmanand,

               Trust this will find you all quite well. I am in  receipt of your letter-dated 12.6.92. It is indeed gratifying to  know that the two suits filed by Bhatt have been dismissed.  Dandayudhan gave me information 10th itself and I immediately  intimated him to hand over keys of the godown to you as a  token of our intention to fulfill our commitments under the  agreement. Personally, I am not for delaying matters any more.  However, it appears that Bhatt has filed an injunction petition to  get injunction till appeal is filed.

       My friends here are saying that we might as well await  the result of the petition before going ahead with registration.  Otherwise it may create further problems. Knowing Bhatt, I am  sure you will agree that it is advisable to wait for things to be  more clear, now that you are in possession of the godown.           It is a pity that Bhatt can got hold of people like  Moosakutty to harass us. I look forward to coming to Calicut  shortly along with Rajan, to conclude the registration as soon as  I get information from Dandayudhan in the matter.

       In the meanwhile please be in touch with Dandayudhan         

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       With best wishes,                                                                                                                                                                                       Yours faithfully,

Sd/-  (K.R. Muthugopal)"

        The Proceedings in the Trial Court and the High Court:

       On 20.6.1992, one R. Latha, sister of Defendant 4 filed a suit O.S. No.  382/92 in which she claimed partition in respect of the suit property, with a  prayer to restrain the Defendants "from alienating by way of sale, mortgage  or lease and/or transferring possession of the plaint schedule property in any  manner to any other persons and from causing any loss or damage in any  manner to the buildings standing in the plaint schedule property". An order  was passed therein on 2.7.1992 directing "to maintain status quo until further  orders".  

On 24.8.1995, Defendants 1 and 2 abruptly cancelled the power of  attorney in favour of Dandayudhan. During the night of 31.8.1995  possession of the suit godown was taken over by the Defendants by breaking  open the locks. According to the Plaintiffs, on 1.9.1995 when the First  Plaintiff went to the shop, as usual, he found the defendants and other  strangers present therein, who tried to attack him and caused apprehension  about his life. An altercation followed during which the First Plaintiff was  told that Defendants 1 and 2 had sold the suit property to Defendants 3 and 4  and that the Plaintiffs may seek their remedy anywhere. This gave an  apprehension to the Plaintiffs that the Defendants were intent upon refusing  to execute and register the document and complete the conveyance of the  suit property to them. With this apprehension, the Plaintiffs made enquiries  in the office of the Sub Registrar and learnt that the suit property had already  been sold by Defendants 1 and 2 to Defendants 3 and 4 during the period  from 30.8.1995 to 31.8.1995. On 4.9.1995 the Plaintiffs issued a notice to  Defendants 1 and 2 calling upon them to execute the sale deed and complete  the conveyance of the suit property to them. The Plaintiffs brought a suit for  specific performance on 15.9.1995, which is numbered as O.S. No. 647/95.  The Bhatts, who were alleged to be the purchasers of the property, were also  impleaded as Defendants 3 and 4 to the suit. On 18.10.1995, Moosakutty’s  appeal was dismissed as settled out of court and all interim orders made  therein came to be vacated. On 2.1.1996, Lata’s suit O.S. No. 382/92 was  dismissed for non-payment of court fee.

       The Subordinate Judge, Kozhikode tried Original Suit No. 647/95 and  rendered the judgment on 31.3.1997. The following issues were framed by  the trial court:

"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?

3.      Whether the plaintiffs are entitled to specific  performance of the sale agreement as alleged?

4.      Reliefs and costs?

Additional Issue :

5.      Whether the suit is barred by limitation?"

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       With regard to Issue No. 1 the trial court discussed the evidence in  detail and came to the conclusion that the defence set up by the Defendants  was wholly unbelievable and that from the evidence adduced in the case, it  could safely be found that the agreement dated 10.3.1989 in respect of the  suit property had been executed by Defendants 1 and 2, as contended by the  Plaintiffs, upon payment of consideration of Rs. 22,000/- as advance, as  recited in the document. The trial court also held that there was clinching  evidence to prove that Defendants 1 and 2 had put the Plaintiffs in  possession of the godown, after the 10.3.1989 agreement in June, 1992.  

       With regard to the second issue, the trial court totally disbelieved the  defence set up by the defendants and held, "thus the evidence only leads us  one way, that is to the fact that defendants 3 and 4 had due knowledge of the  sale agreement, prior to their entering into a deal for purchase of the plaint  schedule properties. It is also clear from the evidence that the sale deeds  were not taken by them in good faith."

       The trial court held in favour of the Plaintiffs on all issues. According  to the trial court, the suit was for specific performance of an agreement in  respect of which no date had been fixed and, therefore, the cause of action  would arise only when the Plaintiffs had notice that the performance had  been refused. The trial court was of the opinion that the second part of  Article 54 of the Limitation Act, 1963 was applicable and since the Plaintiffs  notice of the refusal of performance by the Defendants 1 and 2 arose only on  31.8.95/ 1.9.1995, the suit filed on 15.9.1995 was within limitation. On this  finding, the learned judge of the trial court decreed the suit as prayed for,  since the learned judge was satisfied that the Plaintiffs were willing to  perform their part of the agreement and the defendants were not.  

On appeal to the High Court, the High Court agreed with the trial  court judgment on all the issues, but differed only on the finding with regard  to limitation. The High Court took the view that the agreement dated  10.3.1989 was one in which a date was fixed for performance and, therefore,  the suit was hopelessly barred by limitation. In this view of the matter, the  High Court set aside the decree and dismissed the suit.

       Thus, on all the issues that were raised in the suit, the findings in  favour of the Plaintiffs were confirmed by the High Court in appeal. The  only question which has been argued before us, and which we need to  consider is the issue of limitation.

Submissions:         Mr. R.F. Nariman, learned counsel for the Plaintiffs vehemently  contended that the High Court was wrong in reversing the decree on the  ground of limitation. His submissions were as follows.

       On reading the agreement of 10.3.1989 as a whole, it is clear that no  date for specific performance was fixed until the cloud on the vendors’ title  was removed. In other words, the date of performance was only after the  dismissal of the two suits. This meant that the date fixed for performance  would arise only after the final dismissal of Moosakutty’s suits and the  appeals therein. In the alternative, he contended that letter dated 18.6.1992  can be read to show the true common intention of the parties, which was that  the date of performance was extended until the difficulty created by  Moosakutty’s appeal and the injunction therein was resolved and that "it is  advisable to wait for things to be more clear". He, therefore, contends that  this letter would suggest that whatever the parties might have originally  intended, after the letter of 18.6.1992 the time had been extended. That even  if clause (1) of the agreement alone must be looked at, vacating an  injunction is not a certain event, and, therefore, the first part of Article 54 of  the Limitation Act, 1963 would not apply.

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       In his submissions, the catena of judgments ending with the  judgments of this Court holding that the first part of Article 54 of the  Limitation Act, 1963 would apply to an agreement wherein no date was  fixed, but the performance was with reference to a future contingency, has  been wrongly decided and we should refer the matter to a larger Bench for  an authoritative exposition of the law. The expressions "date" and "time"  have been used differently, as evident from a contrast of the language used  in Articles 53 and 54 of the Limitation Act, 1963. Finally, that even if the  two expressions are interchangeable, the construction of the expression  "date" is ambiguous and in such circumstances the interpretation of the  statute must be in favour of preserving the remedy and against the dismissal  of a suit.  

       Mr. Rao, learned counsel, who appeared for Respondents 3 and 4 (the  Bhatt family) contends that the expressions "date" and "time" used in the  Schedule to the Limitation Act are interchangeable; the maxim id certum est  quod certum reddi potest (’That is certain which can be reduced to a  certainty.’) clearly applies to a situation like this; the expression "date" is  interchangeable with "day" or "time". He relied on a series of judgments,  including two judgments of this Court, in support of his contention. He also  refuted the argument that there was any ambiguity in interpreting the  language used in Article 54 of the Limitation Act, 1963; that the High Court  had on a careful reading of the agreement ascertained the intention of the  parties, and there was no reason for this Court to take any different view of  the matter.

       It would be useful to set out the provisions of Article 54 before  critically appraising the arguments presented to us on both sides.

"Article Description of  suit Period of  limitation Time from which period  begins to run

54 For specific  performance of a  contract. Three years The date fixed for the  performance, or, if no such  date is fixed, when the  plaintiff has notice that  performance is refused."

       Though, at first blush, it may appear that the use of the expression  "date" used in this Article of the Limitation Act, 1963 is suggestive of a  specific date in the calendar, we cannot forget the judicial interpretation of  this expression over a long period of time. Different High Courts took  different views of the matter, which has been a subject matter of  controversy. Some interpreted the expression strictly and literally, while  others have taken an extended view.

       In Kashi Prasad   v.  Chhabi Lal and Ors.  the High Court dealing  with Article 113 of the Limitation Act, 1908, which was in pari materia with  Article 54 of the Schedule to the Limitation Act, 1963, took the view that the  force of the word "fixed" implies that the date should be fixed definitely and  should not be left to be gathered from surrounding circumstances of the case.  It must be a date clearly mentioned in the contract whether the said contract  be oral or in writing.

       In Alopi Parshad and Anr.  v.  Court of Wards and Ors. , also the

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court was concerned with Article 113 of the Limitation Act, 1908. A suit for  specific performance was brought on an agreement of sale where the time  for performance of the contract was "after passing of a decree". Though no  date for performance was fixed for the agreement, the trial Court had opined  that time must be held to have begun to run from the date on which the  decree was passed in view of the maxim certum est quod certum reddi potest  ("That is sufficiently certain which can be made certain"). The Lahore High  Court was of the view that statutes of limitation must be strictly construed  and that the respondents before it had failed to bring a case specifically  within the purview of the first part of Article 113 and that the case did not  fall within the first part but fell within the second part of Article 113. The  judgment of the Allahabad High Court in Kashi Prasad (supra) was  approvingly referred to and followed. This judgment was taken in appeal  before the Privy Council and approved by the Privy Council in Lala Ram  Sarup v. Court of Wards .   

       In Kruttiventi Mallikharjuna Rao  v.  Vemuri Pardhasaradhirao ,  a contract was entered into on 18.7.1934, and the vendor promised to  execute the sale deed when both his brothers who were studying elsewhere  returned to the village for the next vacation, i.e., in May-June 1935. The  High Court held that this was "too indefinite to be regarded as fixing a  "date" for the performance of the contract and the period of limitation must  be computed from the date of refusal to perform".  

       In R. Muniswami Goundar (died) and Anr.  v.  B.M. Shamanna  Gouda and Ors.  interpreting the expression "date fixed" in Article 113 of  the Limitation Act, 1908 the doctrine of id certum est quodi certum reddi   potest was pressed into service along with its exposition in Broom’s Legal  Maxims  and it was held that it was wide enough to include a date which  though at the time when the contract was made was not known, but could be  ascertained by an event which subsequently was certain of happening.

       In Hutchegowda v.  H.M. Basaviah , upholding the view in  Muniswami Goundar (supra), it was held that an agreement to execute the  sale deed "after  the ’Saguvali chit’ is granted fell within the first part of  Article 113 of the Limitation Act, 1908.

       In Purshottam Sava v.  Kunverji Devji and Ors.  the judgment of  the Madras High Court in R. Muniswami Goundar (supra) was followed  and it was held that the expression "date fixed" can be interpreted as  meaning either the date fixed expressly or a date that can be fixed with  reference to a future event which is certain to happen.

       In Lakshminarayana Reddiar v. Singaravelu Naicker and Anr.  it  was held that the phrase occurring in the third column of Article 113 of the  Limitation Act, 1908 "the date fixed for the performance"  must be not only  a date which can be identified without any doubt as a particular point of  time, but it should also be a date which the parties intended should be the  date when the contract could be performed.         In Shrikrishna Keshav Kulkarni and Ors. v.  Balaji Ganesh  Kulkarni and Ors. , the agreement for sale of a property stated that the  sale was to be executed after the attachment which the creditors had brought  was raised. Noticing the fact that there was absence of any indication as to  when the attachment would be raised, the court treated it as a case in which  no date was fixed for performance of the contract and, therefore, falling  within the second part of Article 54 of the Limitation Act, 1963.  

       P. Sivan Muthiah and Ors. v.  John Sathiavasagam  arose from a  suit for specific performance with an alternative prayer for recovery of  advance paid under the agreement of sale. Referring to Article 54 of the  Limitation Act, 1963 the court took the view that the expression "date fixed"  could mean either the date expressly fixed or the date that can be fixed with  reference to a future event, which is certain to happen. If the date is to be  ascertained depending upon an event which is not certain to happen, the first  part of Article 54 would not be applicable, and in such an eventuality, it is

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only the latter part of Article 54 that could be invoked by treating it as a case  in which no date had been fixed for performance and the limitation would be  three years from the date when the plaintiff had notice that performance is  refused. This was a case where performance was due after the tenants in the  property had been vacated. The court took the view that since eviction of the  tenants was an uncertain event, the time must be deemed to have run only  from the date when the plaintiffs had notice that the performance had been  refused by the defendants.

       In Ramzan  v.  Hussaini  a suit was filed for specific performance of  a contract of sale in respect of a house. The property was mortgaged and  according to the plaintiff, the defendant had agreed to execute a deed of sale    on the redemption of the mortgage by the plaintiff herself, which she did in  1970. In spite of her repeated demands, the defendant failed to perform his  part, which resulted in a suit being filed. The question that arose before this  Court was whether the agreement was one in which the date was "fixed" for  the performance of the agreement or was one in which no such date was  fixed. This Court answered the question in the affirmative by holding that,  although a particular calendar date was not mentioned in the document and  although the date was not ascertainable originally, as soon as the plaintiff  redeemed the mortgage, it became an ascertained date. This Court also  agreed with the view expressed in the Madras High Court in R. Muniswami  Goundar (supra) and held that the doctrine id certum est quod certum reddi  potest is clearly applicable. It also distinguished Kruttiventi Mallikharjuna  Rao (supra) and Kashi Prasad (supra) as cases that arose out of their  peculiar facts.

       In Tarlok Singh  v.  Vijay Kumar Sabharwal  the parties by  agreement determined the date for performance of the contract, which was  extended by a subsequent agreement stipulating that the appellants shall be  required to execute a sale deed within 15 days from the date of the order  vacating the injunction granted in a suit. The suit was initially dismissed  and, thereafter, a review application was also dismissed as withdrawn on  22.3.1986. On 23.12.1987 a suit was filed for perpetual injunction. In that  suit, an application came to be made under Order 6 Rule 17 CPC for  converting it into a suit for specific performance of an agreement dated  18.8.1984. This amendment was allowed on 25.8.1989. It was held that since  the amendment was ordered on 25.8.1989, the crucial date for examining  whether the suit was barred by limitation was 25.8.1989. Since the  injunction was vacated when the original suit was initially dismissed, and  the review application came to be dismissed on 22.3.1986, it was held that it  was a situation covered by the first part of Article 54 and, in any event, on  25.8.1989 the suit was barred by limitation.  Supplementary Contentions:         Mr. Nariman, learned counsel strongly urged that, the view taken by  the Allahabad High Court in 1933 and followed by the Lahore High Court in  1938 had been expressly affirmed by the Privy Council in its judgment in  Lala Ram Sarup (supra). Unfortunately, in none of the judgments of the  High Courts decided subsequently was the fact noticed that the decision of  the Lahore High Court had been expressly affirmed by the Privy Council,  nor was this noticed in the two judgments of this Court in Ramzan (supra)  and Tarlok Singh (supra). Mr. Nariman contended that if the Privy Council  judgment had been noticed, then perhaps none of the judgments of the High  Court would have been able to take a contrary view on the interpretation of  Article 54 of the Limitation Act, 1963, since the Privy Council had already  interpreted Article 113 of the Limitation Act, 1908, which was in pari  materia. He, therefore, urged that we should take a different view of the  matter, and if we feel ourselves bound by the judgments of this Court in  Ramzan (supra) and Tarlok Singh (supra), the matter should be referred to  a larger Bench.  

       The argument, thus, presented, no doubt, is attractive, but upon deeper  consideration, we decline to follow the course suggested by the learned  counsel for two reasons. Judgments which have held the field for a fairly  long time ought not to be disturbed unless there is a prepondering necessity

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dictated by the demands of justice to overturn them. It is true that no  judgment after 1940 seems to have noticed that the judgment in Alopi  Parshad (supra) delivered by the Lahore High Court was expressly affirmed  by the Privy Council in Lala Ram Sarup  (supra). It is also possible that if  this fact had been brought to the notice of the High Courts, the course of the  decisions might have taken a different turn. Perhaps, the view of this Court  might also have been different, if its attention was drawn to the judgment of  the Privy Council. Nonetheless, we feel that the judgments in Ramzan  (supra) and Tarlok Singh (supra) being judgments of a coordinate Bench,  we are bound by the observations therein. We do not see the necessity of  referring the matter to a larger Bench at this juncture since we are of the  view that for the disposition of this case it is not necessary to go into the  larger issue urged by Mr. Nariman. We are satisfied that the Plaintiffs are  entitled to succeed on an altogether different ground arising from the facts of  the case.

       A careful perusal of the letter dated 18.6.1992 leaves one in no doubt  as to what exactly the Defendants had in mind when this letter was written.  Doubtless, in the original agreement dated 10.3.1989, the date for  performance had been fixed differently under clauses (1) and (3). Clause (1)  stated that the sale would take place "immediately after the interim order in  O.S. 99/88 and 98/88 imposing restriction on alienation is vacated by the  court". These two suits were the suits of Moosakutty. Clause (3), however,  said that the time for performance would be "immediately on the termination  of the proceedings in court as mentioned above, when the first parties shall  cause the sale deed executed". Perhaps, in the light of the authorities cited at  the Bar ending with the two judgments of this court in Ramzan and Tarlok  Singh (supra), it is possible to say that the expression "date fixed" need not  be a calendar date, but time period fixed with reference to a certain event,  the happening of which is definite. The High Court seems to have judged by  this test and reversed the trial court’s judgment and dismissed the suit.  

       In our judgment, the High Court went wrong in not giving full effect  to the import of letter dated 18.6.1992. What does this letter convey? By the  time this letter was written, the two suits filed by Moosakutty had been  dismissed by the trial court, but he had moved an application for interim  relief, after obtaining a status quo order from the trial court. In the light of  this situation, the Defendants 1 and 2 represented to the Plaintiff 1 and  assured him that they (Defendants 1 and 2) still have the intention of  standing by their promise and as a token of their intention to fulfill their  commitments under the agreement, Dandayudhan had been informed  immediately to hand over the keys of the godown to the Plaintiffs. Finally,  the letter says:

"\005Personally, I am not for delaying matter any more.  However it appears that Bhatt has filed an injunction  petition to get injunction till appeal is filed.

       My friends here are saying that we might as well  await the result of the petition before going ahead with  registration. Otherwise it may create further problems.  Knowing Bhatt, I am sure you will agree that it is  advisable to wait for things to be more clear, now that  you are in possession of the godown."

Further, the letter says:

       "I look forward to coming to Calicut shortly along  with Rajan, to conclude the registration as soon as I get  information from Dandayudhan in the matter."

       Both the parties knew that the suits, which were dismissed on  10.6.1992 resulting in the interim injunction granted by the trial court being  vacated, were technically filed by Moosakutty, but that Moosakutty had

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been put up by the Bhatts (Defendants 3 and 4), who were unsuccessful in  the eviction petition against them. In these circumstances, the Defendant’s  representation to the Plaintiffs would amount to a request for forbearance  from insisting on performance or pursuing legal action pursuant thereto until  the things "become more clear".         Thus, this was a situation where the original agreement of 10.3.1989  had a "fixed date" for performance, but by the subsequent letter of 18.6.1992  the Defendants made a request for postponing the performance to a future  date without fixing any further date for performance. This was accepted by  the Plaintiffs by their act of forbearance and not insisting on performance  forthwith. There is nothing strange in time for performance being extended,  even though originally the agreement had a fixed date. Section 63 of the  Indian Contract Act, 1872 provides that every promisee may extend time for  the performance of the contract. Such an agreement to extend time need not  necessarily be reduced to writing, but may be proved by oral evidence or in  some cases, even by evidence of conduct including forbearance on the part  of the other party.  Thus, in this case there was a variation in the date of  performance by express representation by the Defendants, agreed to by the  act of forbearance on the part of the Plaintiffs. What was originally covered  by the first part of Article 54, now fell within the purview of the second part  of the Article. Pazhaniappa Chettiyar v. South Indian Planting and  Industrial Co. Ltd. and Anr.  was a similar instance where the contract  when initially made had a date fixed for the performance of the contract but  the Court was of the view that "in the events that happened in this case, the  agreement in question though started with fixation of a period for the  completion of the transaction became one without such period on account of  the peculiar facts and circumstances already explained and the contract,  therefore, became one in which no time fixed for its performance." and held  that was originally covered by the first part of Article 113 of the Limitation  Act, 1908 would fall under the second part of the said Article because of the  supervening circumstances of the case.

       In the present case, it was only on 31.8.1995/1.9.1995 that the  plaintiffs realised that there was a refusal to perform, when they were  forcibly evicted from the godown. It is only then that the Plaintiffs had  notice of refusal of performance. Counted from this date, the suit was filed  within 15 days and, therefore, was perfectly within the period of limitation.  We, therefore, disagree with the High Court on this issue of limitation and  hold that the suit filed by the Plaintiffs was within the period of limitation  and was not liable to be dismissed under Section 3 of the Limitation Act. All  other issues concurrently have been held in favour of the Plaintiffs. Hence,  there is no impediment to the Plaintiffs succeeding in the suit.  

Conclusion:         In the result, we allow the appeals and set aside the impugned  judgment of the High Court and affirm the decree made by the trial court in  favour of the Appellants-Plaintiffs. Considering the utterly dishonest defence  raised by the Defendants and the fact that Defendants 3 and 4 colluded with  Defendants 1 and 2, we think that the original Defendants 1 to 4 (present  Respondents in both the appeals), need to be imposed with costs. Defendants  1 and 2 shall together pay a sum of Rs. 50,000.00 and Defendants 3 and 4  shall together pay a sum of Rs. 50,000.00 to the appellants.