Bajirao Sayaji Jadhav v. Vishnu Kedu Nirbhavane

Bombay HC16 Jul 2007SA/265/2007

Case brief

AI extract

What is this about?

The court dismissed a second appeal arguing that the sub-divisional judge's conclusion was unsustainable in law regarding limitation in a suit concerning land sale agreements and the applicability of statutory amendments.

What the court decided

AI extract

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 SECOND APPEAL NO.265 OF 2007

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 Bajirao Sayaji Jadhav. ..Appellant.

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 V/s.

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 Vishnu Kedu Nirbhavane & Ors. ..Defendants.

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 Mr.R.V.Govilkar a/w Sarang Aradhey for appellant.

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 CORAM: A.M.KHANWILKAR,J

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 DATE : JULY 16, 2007.

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P.C. :

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 1. Heard counsel for the appellant. The only
 argument canvassed before me is that, the conclusion
 reached by the two Courts below, concurrent though
 cannot be sustained in law. To buttress this
 submission, reliance is placed on the decision of our
 High Court reported in 2007(2) Bom.C.R.256 in the
 case of Raghunath Fulaji Jadhav & Anr V/s. Rajendra
Dinkarrao Patil & Ors.

Bajirao Sayaji Jadhav Vs Vishnu Kedu Nirbhavane — Partition | Bombay HC (2007)

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 2. To consider the argument on the issue of
 limitation, the relevant facts as found by the two
 Courts below are as under. The plaintiff and
 defendant No.3 are real brothers; while defendant
 Nos. 1 and 2 are the sons of Kedu Laxman Nirbhavane.
 That said Kedu Nirbhavane died in the year 1985. An

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 agreement of conditional sale deed of suit land
 (Ex.53) was however, executed on 9th March, 1970 by
 the Plaintiff and defendant No.3 in favour of father
 of defendant Nos. 1 and 2(Kedu Nirbhavane). At the
 execution of the said agreement, possession of the
 suit land was also delivered by plaintiff and
 defendant No.3 to said Kedu Nirbhavane. It was
 agreed by the parties to re-execute the sale deed by
 purchaser within 5 years on payment of consideration
 of Rs.2500/-. It is also agreed that the said Kedu
 Nirbhavane executed registered agreement of Sale
 (Ex.54) on 6.2.1975 in favour of the plaintiff and
 defendant No.3. One of the stipulation under the
 suit agreement dated 6th February, 1975 is that, the
 plaintiff shall execute Sale Deed within one month
 from the date of permission given by the Collector,
 as was required under the Provisions of the Bombay
 Prevention of Fragmentation and Consolidation of
 Holdings Act, 1950. Requirement of obtaining such
 permission, it is common ground, was done away with
 by the amending Act with effect from 29th August,
 1977. Significantly, said Kedu Nirbhavane died in
 the year 1985 and till then the Plaintiff did not
 demand execution of reconveyance from him. The
 plaintiff for the first time after nine years from
 the death of Kedu Nirbhavane sent a legal notice

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 3. By virtue of amending Act, requirement of
 seeking permission of the Collector was dispensed
 with. Once the requirement of obtaining such
 permission was dispensed with, it would necessarily
 follow that the period to discharge obligation under
 the agreement commenced with effect from 29th August,
 1977, to be discharged by the plaintiff within one
 month therefrom. That is so because, time is essence
 of the contract, on account of the stipulation in the
 agreement itself in that behalf. As a result, the
 period of limitation would start running on expiry of
 one month from 29th August, 1977, to be reckoned for
 the purpose of first part of the Article 54 of the
 limitation Act. Having regard to the fact situation
 of the present case, the Second part of the article
 54 will not apply. For which reason, the fact that
 the defendants refused to perform his part of the
 contract allegedly for the first time in 1996, as is
 contended by the appellant/plaintiff, will be of no
 avail.

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 appellant pressed into service observations in
 paragraph-12 of the reported decision in the case of
Raghunath Fulaji Jadhav(Supra). According to the
 appellant even in that case, similar stipulation was
 provided in the agreement, as can be discerned from
 the facts noted in the paragraph-2 and paragraph-9 of
 the reported decision. Inspite of that, the Court
 rejected the objection regarding the suit being
 barred by limitation, as is noted in paragraph-12 of
 the reported decision.

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 5. In my opinion, the exposition in the case of
Raghunath Jadhav(Supra) is relevant to the fact
 situation of that case. This is so because, in that
 case the Court went on to hold that it was not open
 to the appellant therein to raise argument regarding
 suit being barred by limitation or that the
 limitation had started running on expiry of the
 period of six months from the date of stated
 amendment. The Court further held that Bhimrao ought
 to have informed the plaintiff that requirement of
 obtaining sanction of the Collector for executing
 sale deed was no more necessary in view of the
 amendment. It is further held that it is clear from
 the evidence on record that neither the plaintiff nor
 the defendants were aware about the amendment.

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Excusat-Ignorantia Juris Non Excusat). The effect of
 amendment of the enactment is the change brought
 about in law. It cannot be assumed that the
 appellant was ignorant of such law. Thus understood,
 the plaintiff became liable to discharge his
 obligation on and from 29th August, 1977 to be
 completed within one month therefrom. In such a case
 the first part of the Article 54 of the Limitation
 Act will come into play, namely, if the time is
 essence of the contract, in that case the limitation
 would start running from the date when the party to
 the contract fails to discharge his obligation within
 such specified time. In asmuch as, the first part of
 Article 54 of the Limitation Act applies only when
 the date is fixed for the performance of the contract
 in the agreement itself. Whereas, the second part of
 Article 54 of the Limitation Act will apply when no
 such date is fixed for the performance of the
 contract. Only in the latter case the factum of the

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 date of refusal to discharge one’s obligation or
 execute agreement by the defendants would become
 relevant to reckon the period of limitation. That
 principle has no application to the fact situation of
 the present case.

Bajirao Sayaji Jadhav v. Vishnu Kedu Nirbhavane

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Cases cited

Parties & counsel

Coram

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