Haji Sheikh Ahmed Sowdagar Vs. Ahmed Nur [4 LNJ (2015) 453]

Case No: First Appeal No. 415 of 1998

Judge: Md. Abu Tariq,

Court: High Court Division,,

Advocate: Mr. Khondker Saiful Hoque,Mr. Md. Fakaruddin,,

Citation: 4 LNJ (2015) 453

Case Year: 2015

Appellant: Haji Sheikh Ahmed Sowdagar

Respondent: Ahmed Nur

Delivery Date: 2013-11-25


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Md. Abu Tariq, J
 
Judgment on
25.11.2013
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Haji Sheikh Ahmed Sowdagar, Son of late Ansar Ali alias Ansur Ali
. . . Appellant
-Versus-
Ahmed Nur, Son of late Jamal Ahmed and another
. . .Respondents
 
Limitation Act (IX of 1908)
Article 113
The cause of action for a suit for specific performance of a contract arises when the executant of agreement for sale refuses to act in accordance with the terms of the said agreement. The period of limitation for suit for specific performance of a contract is three years from the date of refusal. In the present case refusal was admittedly on 31.12.1996 and suit was filed on 12.02.1997 and is within the time provided in law. Thus suit being filed on 12.02.1997 due to refusal on 31.12.1996, that is, well within three years from the aforesaid date of refusal as provided under Article 113 of Limitation Act, deals within the provision for filing suit for specific performance of contract....(15)

Limitation Act (IX of 1908)
Article 113
A suit for specific performance of contract for sale of property is undoubtedly covered by Article 113 of the Limitation Act and limitation runs from the date of refusal to perform the obligation on his part of contract and hence the suit is not barred by limitation. . . . (17)

Jahanara Begum Vs. Md. Aminul Islam Chowdhury, 2 MLR (AD) 215 ref.
 
Mr. Khondker Saiful Hoque with
Mr. Md. Mahmood Hasan Imam and
Mr. A. K. M. Sarwar Jahan, Advocates
...For the appellant

Md. Fakaruddin, Advocate
.... For Respondent No. 1

First Appeal No. 415 of 1998
 
JUDGMENT
Md. Abu Tariq, J:
 
This appeal is directed against the judgment and decree dated 31.08.1998 dismissing the suit passed by the learned Subordinate Judge, Patiya, Chittagong, in Other Class Suit No. 05 of 1997.

The plaintiff-appellant instituted a suit for specific performance of contract alleging, inter-alia, that the respondent No. 1 proposed to sell the land in question and the plaintiff agreed to purchase the same. On agreement, settled that the value of the land would be Tk. 1,60,000/-, out of which the plaintiff paid Tk. 1,30,000/- and signed the bainama on condition that the respondent No. 1 would execute the registered deed in respect of the suit land to the plaintiff as per contract. Thereafter, the plaintiff by giving rest amount to the plaintiff requested the defendant respondent No. 1 to register the sell deed in favour of plaintiff-appellant but the defendant refused to execute and register the deed. Hence, the suit.

The defendant No. 1 contested the suit by filing written statement denying the material allegations made in the plaint and contended that there was no cause of action and no recital in the plaint about the offer and acceptance of the contract. He denied the contract for sale of the suit land between the defendant No. 1 and the plaintiff.

After hearing of both the parties, the learned Judge of the trial Court dismissed the suit on the ground that the suit is barred by limitation.

Being aggrieved by and dissatisfied with the impugned judgment of the trial Court, the plaintiff filed this appeal.

The learned Advocate Mr. Khandoaker Saiful Hoque appearing on behalf of the appellant submits that though the defendant No. 1 denied to have the deed of agreement executed on 01.01.1993 (Exhibit-1) but the plaintiff was able to prove the agreement and the trial Court also found that:-

“নালিশী সম্পত্তি খরিদ বিএ্রির বিষয়ে বাদী ও ১ নং বিবাদীর সাথে চুও্রি হয়েছে এবং ণ`ৎনঞ্চৈৎহ ১/২/১৯৯৩ তারিখে বায়নার টাকা গ্রহণ করে ১ নং বিবাদী তর্কিত বায়না পত্রটি (প্রদর্শনী-১) সম্পাদন করেছেন”

The trial Court thus without considering the vital point erroneously held that the suit was barred by limitation and illegally dismissed the suit as such decision of trial Court is contrary to law which is liable to be interfered with by this Court.

He further submits that as per the admission of the defendant No. 1 and on the basis of materials on record it was proved by the plaintiff and found by the trial Court that contract was singed on 01.02.1993 and was delayed up to 15.08.1996 and then the suit was filed on 12.02.1997 when executant refused to execute the contract. The trial Court ought to have held that the suit was within three years of refusal to execute and register the deed in view of second part of Article 113 of the Limitation Act. The leaned Subordinate Judge dismissed the suit illegally as barred by limitation as such the decision is not in according to law.  He prayed for allowing the appeal and set aside the judgment and decree of the trial Court.

The learned Advocate Mr. Fakaruddin appearing on behalf of the respondent submits that the suit was out of time and the plaintiff hopelessly failed to prove his case and as such the learned Judge of the trial Court rightly passed by the impugned judgment, dismissing the suit and there is no scope to interfere with the same. He prayed for dismissal of the appeal.

I have heard the learned Advocate of both the parties, perused the impugned judgment and other materials on record.

It appears that defendant No. 1 admitted that he received the alleged money which not relates to the purpose of agreement for sale but for other purpose. It was not fact to which he referred as being the subject matter of the contract. The contention of the defendant is that the plaintiff is not entitled to specific performance of contract though the agreement was a genuine one.

The question, therefore, is whether in this case the plaintiff is entitled to get decree for specific performance of contract on the facts proved. The answer is below as found by the trial Court:

"উপরোও্র আলোচনা, উভয়পক্ষের স্বাক্ষ্যে বিশদভাবে পর্যালোচনা ১ নং বিবাদীর আচরন ও পারিপার্শ্বিকতা বিবেচনায় আমি এই সিহর সিদ্ধা উপনীত হয়েছি যে, নালিশী সম্পত্তি খরিদ বিএ্রির বিষয়ে বাদী ও ১ নং বিবাদীর সাথে চুও্রি হয়েছে এবং তদাবসহায় ১/২/১৯৯৩ ইং তারিখে বায়নার টাকা গ্রহণ করে ১ নং বিবাদী তর্কিত বায়না পত্রটি (প্রঃ-১) সম্পাদন করেছেন "

In view of such findings based on material on record and evidence, the plaintiff is entitled to get a decree for specific performance of contract. Thus this Court is of the view that the plaintiff’s claim for specific performance of contract is liable to be allowed. This view find substance which has been held in the case of Jahanara Begum –versus- Md. Aminul Islam Chowdhury reported in 2 MLR (AD) 215 that:

“In a suit for specific performance to contract the primary requirement is that the plaintiff must prove the genuineness of the agreement with cogent and reliable evidence.”

It appears that the trial Court having found that the plaintiff is entitled to get a decree as prayed for but the suit is barred by provision of Article 113 of the Limitation Act and dismissed the suit findings that the plaintiff proved the genuineness of the agreement with cogent reliable evidences but suit is time barred finding that:- “১ নং বিবাদী কবালা সম্পাদন করে দিতে বাধ্য নন কেননা টাকা যাচনা করার মেয়াদ ১/১/১৯৯৬ ইং তারিখে উত্তির্ন হয়েছে”

Article 13 of the Limitation Act provides that:-
Description of suit Period of Limitation Time from which period begins to run
113. 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.
 
 
It is the settled principle of law as provided in Article 113 of the Limitation Act that the cause of action for a suit for specific performance of a contract arises when the executant of agreement for sale refuses to act in accordance with the terms of the said agreement. The period of limitation for suit for specific performance of a contract is three years from the date of refusal. In the present case refusal was admittedly on 31.12.1996 and suit was filed on 12.02.1997 and is within the time provided in law. Thus suit being filed on 12.02.1997 due to refusal on 31.12.1996, that is, well within three years from the aforesaid date of refusal as provided under Article 113 of Limitation Act, deals within the provision for filing suit for specific performance of contract.

In the instant case, there is no dispute that time is the essence of the contract and the further finding is that balance consideration was tendered within the time but the defendant delayed the matter and ultimately refused to accept the same and refused to execute the deed. The defendant committed an act of indiscretion and foul play which was also proved.

A suit for specific performance of contract for sale of property is undoubtedly covered by Article 113 of the Limitation Act and limitation runs from the date of refusal to perform the obligation on his part of contract. Therefore, in any view of the matter, the suit is not barred by limitation.

Therefore, the suit is nothing but a suit for specific performance of contract and there is no scope to entertain any doubt about it. Thus I find substance in the argument made by the learned Advocate for the appellant.

In the instant case, the trail Court misconstrued the material document and misread the materials on record as the suit was not barred by limitation and thus the trial Court committed illegality and material irregularity in dismissing the suit. As the plaintiff was able to prove the case is entitled for a decree.

In view of the above facts and circumstance of the case, I find merit in this appeal.

ED.