- 1 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF APRIL, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE T.M.NADAF REGULAR FIRST APPEAL NO. 697 OF 2015 (SP-) BETWEEN: 1. MR. ZAHID HUSSAIN, S/O K.M. NOORULLAH, AGED ABOUT 60 YEARS, R/AT FLAT NO.304, IDEAL HOME APARTMENT, PANDEWSHWAR, MANGALORE - 574 001. 2. MR. M. MOHAMMED IQBAL, S/O MIR ISMAIL, AGED ABOUT 49 YEARS, R/AT FABEL COTE, 3RD MAIN ROAD, SUBHAS NAGAR, MANGALORE - 575 001. …APPELLANTS (BY SRI. SANATH KUMAR SHETTY, ADVCOATE FOR A1 SRI. HAREESH BHANDARY T., ADVOCATE FOR A2) AND: 1. MR. MURALI, S/O LATE HONNAPPA, SINCE DECEASED BY HIS LRS 1(a). SMT. SHANTHI, W/O. LATE MURALI, AGED ABOUT 53 YEARS, Digitally signed by REKHA R Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 1(b). SRI. SANDEEP, S/O LATE MURALI, AGED ABOUT 29 YEARS. BOTH RESIDING AT NO.2/147, SHALE PADAVU, MADUSHEDDE(CT), MANGALORE, DAKSHINA KANNADA - 575 028. 2. MR. SUDHEER KUMAR, S/O LATE HONNAPPA, AGED ABOUT 46 YEARS, KADEKAR, JEPPINAMOGARU, MANGALORE - 575 009. 3. MRS. SUJATHA, D/O LATE HONNAPPA, AGED ABOUT 43 YEARS KADEKAR, JEPPINAMOGARU, MANGALORE - 575 009. 4. SRI. J. JANARDHAN RAO, S/O J. SHIVARAMA RAO, AGED ABOUT 70 YEARS, RESIDING AT "SHIVAPRAKASH", MORGANS GATE, JEPPU, MANGALORE - 575 002. DAKSHINA KANNADA. …RESPONDENTS (BY SRI. VIJAYA KRISHNA BHAT M., ADVOCATE FOR LRS OF DECEASED R1 I.E. R1 (A& B) TO R3) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:17.01.2015 PASSED IN O.S.NO.04/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & C.J.M., AT MANGALORE, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE. - 3 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) The present Regular First Appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'), against the judgment and decree dated 17.01.2015 passed in O.S.No.4/2013 by the appellants/plaintiffs. The suit was filed for specific performance of the contract of agreement to sale dated 24.03.2007. 2. The total sale consideration agreed for sale of the suit scheduled property by the defendants in favour of the plaintiffs was Rs.25,08,000/-. Four months' time was fixed for performance of the contract of execution of sale deed in favour of the plaintiffs by the defendants i.e., on or before 23.07.2007. According to the plaintiffs they had - 4 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 paid altogether Rs.15,00,000/- in cash i.e., Rs.6,00,000/- in cash at the time of entering into the agreement for sale dated 24.03.2007 and a sum of Rs.8,00,000/- by way of cash on 02.02.2008 and thereafter a sum of Rs.50,000/- by cash on 26.03.2008 and further Rs.50,000/- by way of cash on 06.08.2008. Only Rs.75,000/- was paid through cheque. 3. The plaintiffs issued notice dated 09.08.2012 to the defendants, calling upon them to execute the sale deed of the aforesaid property after converting the same for non-agricultural purpose. The said notice was denied by the defendants. Thereafter, the plaintiffs instituted the suit on 09.01.2013, seeking specific performance of the agreement of sale dated 24.03.2007, seeking a decree to that effect from the Court. 4. The defendants filed written statement denying the cash payment made by the plaintiffs and they also raised the issue of limitation, inasmuch as the plaintiffs - 5 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 sought specific performance of the contract of sale dated 24.03.2007, by filing suit on 09.01.2013. 5. On the basis of the pleadings between the parties, the following issues were framed by the trial Court for determination. "1)Whether plaintiffs are always ready and willing to perform their part of contract? 2) Whether time is not the essence of the suit agreement of Sale? 3) Whether the suit is well in time? 4) Whether defendant No.1 and 2 proves that the suit agreement of sale was cancelled, abandoned etc.,? 5) Whether plaintiffs are entitle for the decree of Specific Performance of suit agreement of sale? 6) What Order or Decree?" 6. The specific issue regarding the limitation was framed as issue No.3. We propose to dispose of this appeal on short question of limitation, if the suit was barred by limitation, the other issues would not require for consideration. The trial Court has answered the said issue - 6 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 in negative against the plaintiffs. The trial Court noted that as per the Ex.P1, the agreement to sale, the four months time was prescribed for performance of the contract as per clause No.5 of the agreement. The learned counsel for the plaintiffs submits that the conduct of the defendants would suggest that four months' time was not the essence of the contract, as the defendants had accepted the further payment between February 2008 to August 2008 by way of cash, therefore, the time was not essence of the contract, which is evident from the conduct of the parties. Therefore, the limitation would start from the date when the defendants after issuing the notice dated 09.08.2012 refused to perform their part of the contract. 7. We have considered the submissions so far as cash payments are concerned, the plaintiffs have failed to prove by leading any credible and cogent evidence that the said amount in cash was paid to the defendants. Be that as it may, under Article 54 of the Limitation Act, three years is the time prescribed for filing the suit for specific - 7 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 performance where the time is fixed. In this case the time period was fixed for four months for execution of the sale deed by the defendants in favour of the plaintiffs, which would get expired on 23.07.2007. 8. Admittedly, the plaintiffs have filed suit only on 09.01.2013 i.e., 6 1/2 years from the date when four months got expired. Four months period was prescribed under clause 5 of the agreement to sale (Ex.P1). Even if it is accepted that the plaintiffs had made some payment, making some payment in furtherance of their obligation would not extend the period of limitation as prescribed under Article 54 of the Limitation Act, once it started to run. 9. The learned counsel for appellants has placed reliance on the judgments of the Hon'ble Supreme Court in Panchanan Dhara and Others Vs. Monmatha Nath Maity (Dead) Through LRs and Another1and judgment 1 (2006) 5 SCC 340 - 8 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 in the case of Gaddipati Divija and Another Vs. Pathuri Samrajyam and Others2. 10. In the judgment of Panchanan Dhara supra, learned counsel has relied on paragraph No.22, to contend that the conduct of the parties is required to be considered as relevant facts while determining the time stated. Once there is payment, which has been accepted, the time stands extended and the time to file the suit which would deem to start running only when the plaintiff has notice that performance has been refused. In another judgment i.e., Gaddipati Divija supra, the appellants relied on paragraph No.35, to contend that the time was not the essence of the contract and further that since the part of performance on the part of defendants i.e, obligation on his part regarding measurement of land to be measured and demarcated and other acts had not been done, it was the reason for the plaintiff to wait for the performance by the defendants in terms of contractual obligations and as 2 Civil Appeal No.4206-4207/2011 (arising out of SLP(Civil)No.3229- 3230/2011) Dt:18.04.2023 - 9 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 such the suit filed was in time. We have gone through the judgments cited by the learned counsel for the appellants. 11. In the first judgment, i.e., in Panchanan Dhara supra, the Supreme Court specifically has stated that no plea on limitation has been raised and no proper issue has been framed in the said case and plea of limitation raised for the first time before the Supreme Court cannot be allowed to stand. In the case on hand, there is indeed specific plea on limitation pleaded and in issue i.e., issue No.3 has been framed and answered against the plaintiff. In these circumstances, case is distinguishable on facts and not applicable to the case on hand. 12. Admittedly, the agreement of sale is of the year 2007, even according to the plaintiffs, they had made last payment in August 2008, thereafter, for the first time, the plaintiffs issued notice on 09.08.2012 i.e., after a lapse of more than four years. Nothing is forthcoming in the pleadings to show that what action plaintiffs had taken for - 10 - HC-KAR NC: 2026:KHC:18585-DB RFA No. 697 of 2015 the alleged non-performance of contract by the defendants, as such judgment in Gaddipati Divija supra, is not applicable. 13. In these circumstances, the judgments relied on by the learned counsel for appellants are distinguishable on facts and not applicable to the case on hand. 14. We are therefore, of the view that the suit filed by the plaintiffs was hopelessly barred by limitation and on this short point itself, we dismiss the appeal without costs. Sd/- (D K SINGH) JUDGE Sd/- (T.M.NADAF) JUDGE RR List No.: 2 Sl No.: 4 ct-vn