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PETITIONER: D.S. THIMMAPPA

       Vs.

RESPONDENT: SIDDARAMAKKA

DATE OF JUDGMENT:       29/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1960            JT 1996 (4)   324  1996 SCALE  (3)704

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The appellant  had two  sale deeds dated April 24, 1900 and  July   20,  1968,   an  executed   by  the   respondent transferring the schedule property. On the later data, i.e., July  20,  1968,  an  agreement  of  reconveyance  was  also executed by  the   appellant with  a stipulation that in the event of  the respondent  repaying Rs.  5000/- within  eight years from  that date in one lump sum, she would be entitled to have the sale deed executed and registered in her favour. It is  the case  of the respondent that before the expiry of eight years,  some time in June 1976, she had approached the appellant but he avoided the reconveyance. Consequently, she requested her  lawyer to  issue a  notice which  came to  be issued to  the appellant  to  be  present  before  the  sub- Registrar to  receive the  amount and  execute the sale deed but he failed to do that. On July 19, 1976 The sub-Registrar had issued  notice calling  upon the appellant to be present in the  sub- Registrar’s  office. Although  he received  the notice, he  was  not  present  to  receive  the  amount  and facilitate registration  of the  sale deed on July 20, 1976. Consequently, the  suit for  specific performance came to be filed.      The trial  Court, after  adduction of  evidence by both the parties had accepted the plea of the respondent that she had offered  payment within the limitation but Thimmappa had avoided the  receipt thereof.  The appellate  Court reversed the decree  on the  finding that  the time is the essence of contract. The  deed of  reconveyance stipulates  eight years period   from the  date of  execution of  the sale  deed and since the  respondent had  not obtained  reconveyance within that period,  the period  of limitation expired by efflux of time. Therefore, the suit was barred by limitation. The High Court of Karnataka in Second Appeal No.6 of 1988 by judgment

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and decree dated January 23, 1995 reversed the decree of the appellate Court  and restored  that of the trial Court. Thus this appeal by special leave.      Shri Javali,  learned senior counsel for the appellant, contended that  in view  of the specific recital in the deed of  reconveyance   that  the  respondent  had  to  have  the reconveyance executed within eights years from July 20, 1968 and since  she had not had the conveyance executed, the suit is barred by limitation. We find no force in the contention.      It is  settled law that unless the deed of agreement of sale stipulated  a date  for performance, time is not always essence of the contract. It would be seen that Thimmappa had the land  purchased from  the respondent  and there  was  an agreement of  reconveyance on  condition that the respondent should return  the consideration  paid under the sale deeds, viz., Rs.5,000/-  within eight  years from  that  date.  The appellant had  gone  to  the  extent  of  even  denying  the executing of  reconveyance. Therefore,  the High  Court  has gone into  the question of the probability of the respondent approaching the appellant for reconveyance before the expiry of the  limitation. The  High Court  has, therefore, rightly gone into  the question  whether there  was an  agreement of reconveyance and  whether the  respondent had  performed her part of the contract in seeking reconveyance. That being the material questions  which hinge  upon the  discretion to  be exercised by the Court to enforce for specific performance f the contract,  the appellate  Court had not adverted to that material part.  But  merely  it  relied  upon  the  plea  of limitation. Under  those circumstances,  the High  Court has not committed  any error  of law  in  interfering  with  the decree of  the  appellate  Court  and  considering  relevant circumstantial evidence  that unless  the respondent  had in the first  instance approached and the appellant avoided the receipt of the consideration and execution of sale deed, the respondent had  no occasion  to approach  an advocate to get the notice issued asking the appellant to be present before before the  Sub-registrar for  execution of  sale deed under Article 54 of the Schedule to the Limitation Act 21 of 1963, limitation for  specific preference  begins to  run from the date fixed  in the  contract or  from the date of refusal to execute the  sale deed. Since time is not the essence of the contract, the  respondent had  offered the  payment  of  the amount before the expiry of the date of reconveyance but the appellant had  refused to  reconvey the  same. The  cause of action arose  an expiry  of eight  years from  the  date  of execution of  later  sale  deed  i.e.  July  20,  1973.  The appellant by  conduct refused  to execute  the sale  deed on July 19  1976 the  suit was filed on July 20, 1976. The suit was filed  within limitation from the date of refusal, i.e., July 19,  1976, i.e.,   next  day.  It  is  not  a  case  of appreciation of  evidence by the High Court in Second Appeal but one  of drawing proper inference from proved facts which the first  appellate court  has failed in law to draw proper inference from  proved facts  and non  application of law in the proper  perspective. We,  therefore, hold  that the suit was filed  within limitation.  We do not find any illegality warranting our interference.      The appeal is accordingly dismissed. No costs.