Muslimveetil Chalakkal Ahammed Haji v. Sakeena Beevi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **RFA.No.267 OF 2016** **AGAINST THE JUDGMENT AND DECREE DATED 30-10-2015 IN O.S.NO. 862/2013 OF SUB COURT, CHAVAKKAD** ## **APPELLANT/PLAINTIFF:** **MUSLIMVEETIL CHALAKKAL AHAMMED HAJI, AGED 64, S/O.MOITHUNNI, KUNDAZHIYUR DESOM, ENGANDIYUR AMSOM, CHAVAKKAD TALUK** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT/DEFENDANT:** **SAKEENA BEEVI, AGED 61, D/O.BHUKARAYIL VALAPILAKAYIL SEETHI THANGAL, KUNDAZHIYUR AMSOM DESOM, CHAVAKKAD TALUK, W/O.BHUKARAYIL AITTANDIYIL BAKRUDHEEN THANGAL, MATHILAKAM P.O., PIN 680685** **BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.M.R.SABU** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08-10-2020, THE COURT ON 16-10-2020 DELIVERED THE FOLLOWING:** **R.F.A.No.267 of 2016** ## **:-2-:** ## **Dated this the 16[th] day of October, 2020** ## **J U D G M E N T** Plaintiff's suit for specific performance of agreement for sale or for return of advance amount of Rs.24,54,345/in the alternative in O.S.No.862/2013 was dismissed by the Sub Court, Chavakkad. The plaintiff challenges the judgment and decree in appeal. 2. Plaint schedule property is 1/11 share out of 3 acres of land and a School building and movables therein belonging to the respondent/ defendant. The property originally belonged to her father, Seethi Thangal. He was the Manager of the aided School being run in the entire property. After his death on 22.8.2002, the property devolved on the respondent and eight siblings. The legal heirs of Sri.Seethi Haji authorised their eldest brother Muhammed Rafi Thangal to take over ## **R.F.A.No.267 of 2016** ## **:-3-:** management of the School and represent them in all matters of administration by executing in his name unregistered Ext.A4 unregistered power of attorney dated 3.9.2002. Sri.Seethi Thangal had incurred liabilities in connection with administration of the School affairs and therefore all the legal heirs including the respondent decided to sell the entire property with School building to the appellant. Ext.A1 sale agreement was entered into on 14.5.2007 between the sharers who included the respondent as first party and the appellant/ plaintiff as second party. 3. The property was agreed to be sold for a total value of Rs.2,70,00,000/- and sale deed was to be executed within 11 months. All the parties agreed to the proposal and an advance amount of Rs.25 lakhs was received on 14.5.2007. The respondent admits that she received 1/11 share out ## **R.F.A.No.267 of 2016** ## **:-4-:** of the advance amount paid on the day. The balance amount was agreed to be paid before the expiry of 11 months and it was further stipulated that Rs.75 lakhs would be paid within one month of the agreement. The default clause provided that in case the appellant failed to pay the balance amount as agreed, his right to get the advance amount back would stand forfeited. It was also provided that if the first party failed to perform their part of the contract, the appellant will be entitled to sue for specific performance of contract of sale. 4. All the sharers signed the agreement and on behalf of the respondent, her son Rasheek Ahammed, DW1 in this case, accepted the agreement on her behalf as her attorney. A registered power of attorney marked as Ext.B1 had been executed by respondent in favour of Rasheek Ahammed on 4.9.2002. ## **R.F.A.No.267 of 2016** **:-5-:** 5. On completion of 11 months on 14.4.2008, all the sharers including the respondent represented by her son consented to extension of Ext.A1 agreement for another three months which expired by 14.7.2008. 6. According to the appellant's case, the agreement was further extended twice on 7.8.2010 and 7.7.2011 for 11 months respectively. The agreement after the last extension would have expired by June, 2012. The appellant claims that within this period, he paid the entire balance sale consideration and the payments were endorsed on the inner pages of Ext.A1. According to him, the respondent received her share of Rs.24,54,545/- and was bound to execute the sale deed along with other sharers. It is stated by him that when nothing remained to be performed on his part and despite all the sharers being ready to execute the sale ## **R.F.A.No.267 of 2016** ## **:-6-:** deed by transferring their 11/10 share, the respondent without any reason backed out from the promise and refused to transfer her undivided share as agreed. All sharers except the respondent executed Ext.B3 sale deed in appellant's name on 8.5.2013 transferring rights limited to their share and accordingly he became the co-owner in possession of the property. Since the respondent allegedly refused to transfer plaint schedule 1/11 share, the appellant filed the suit for specific performance with alternative claim for refund of advance amount on 28.9.2013 charged on the plaint schedule property after sending Ext.A2 suit notice. 7. The respondent raised many contentions opposing the claim of the appellant in the suit. Only material contentions are referred to herein. 8. The respondent contends that the appellant is not entitled either for a decree for specific ## **R.F.A.No.267 of 2016** ## **:-7-:** performance or return of advance amount charged on the plaint property. She contends that the appellant committed breach of contract and was not ready and willing to perform his part concerning the respondent. She admits having received 1/11 share out of Rs.25 lakhs on the date of Ext.A1 through her son. On 14.4.2008, with her consent, agreement was extended for another three months which expired on 14.7.2008. Her contention is that thereafter there was no payment of money nor any extension of time and the appellant failed to perform his part of the contract. It is said that he was not ready and willing to pay her share of purchase money and committed breach of contract. She denied having received Rs.24,54,545/- and therefore after 14.7.2008, the agreement became unenforceable. According to her, because of the breach committed by the appellant, he is not ## **R.F.A.No.267 of 2016** ## **:-8-:** entitled to get back 1/11 share out of Rs.25 lakhs or to a decree charged on her share of land. She also contended that since suit was not brought after three years from the last date of extension of agreement made by her, it was barred by limitation. 9. With respect to the extension of agreements made on 7.8.2010 and 7.7.2011 as well as the endorsements acknowledging receipt of balance sale consideration on various dates appearing in the inner pages of Ext.A1, she contended that Sri. Muhammed Rafi Thangal did not have any authority either to receive the payment or extend the agreement without her knowledge or consent. She denied Sri.Rafi Thangal to be her attorney and contended that Ext.A4 did not authorise him either to enter into sale agreement or transfer the property. According to her, on the very next day of ## **R.F.A.No.267 of 2016** ## **:-9-:** Ext.A4, she executed Ext.B1 registered power of attorney empowering DW1, her son to represent her in all transactions relating to sale agreement or sale of the property. In short, she contended that extensions of agreements and amounts of consideration received and recorded in Ext.A1 were not binding on her. It is stated that only because other sharers consented for transfer of their shares in Ext.B3 dated 8.5.2013, it is no reason to assume that the appellant was ready and willing to perform his part of the contractual obligation to the respondent. The respondent after coming to know that Sri.Rafi Thangal was making preparation to transfer her share in the property by misinterpreting the clauses in Ext.A4 power of attorney, cancelled the power of attorney on 10.11.2012 by issuing notice to Sri.Rafi Thangal as well as to the School and Government authorities. A ## **R.F.A.No.267 of 2016** ## **:-10-:** paper publication was also made on 14.12.2012 cancelling the power of attorney. She also approached this Court in W.P.(C)No.30131/2012 against the appellant, Rafi Thangal and others, transferring the management of the School without her consent and in violation of Section 6 of the Kerala Education Act, 1958. On these contentions, she opposed appellant's suit for specific performance of contract with prayer for return of advance money in the alternative. 10. The court below framed many issues and concentrated mainly on the question of limitation. Accepting the plea of the respondent that Ext.A4 power of attorney did not authorise Sri.Rafi Thangal for extending period of sale agreement or receiving the balance consideration and the suit claim was barred, the suit was dismissed. It was held that the endorsements made by Sri.Rafi Thangal ## **R.F.A.No.267 of 2016** ## **:-11-:** on Ext.A1 extending the period of agreement as well as receiving balance sale consideration were not binding on the respondent. 11. According to the court below, since the - amounts have been received by Sri.Muhammed Rafi Thangal, respondent has no liability to return the advance amount claimed. Accordingly, claim for charge decree was also declined. 12. It is pertinent to note that even though issue as to whether appellant was ready and willing and perform the agreement was raised, no clear finding was entered on that issue. 13. After hearing both sides, I am of the opinion that the material issues which arise for consideration are the following: - (i) Whether the appellant was ready and willing to perform his part of contractual obligation concerning the respondent in compliance with ## **R.F.A.No.267 of 2016** ## **:-12-:** the terms in Ext.A1 agreement for sale? (ii)Whether the suit filed on 28.9.2013 was barred by limitation ? 14. The respondent does not dispute that she received 1/11 share out of Rs.25 lakhs being the advance amount on 14.5.2007 through her son. She does not dispute that appellant was ready and willing to perform his contractual obligations until the agreement was extended up to 14.07.2008 at her instance. She contends that after 14.07.2008, the appellant did not contact or transact either with her or her son and express his readiness and willingness. It is an admitted fact on 14.5.2007 when the agreement was for the first time entered into and on 14.4.2008 when it was further extended for another three months, there were joint endorsements. Except on these two occasions, all other endorsements are seen made ## **R.F.A.No.267 of 2016** **:-13-:** either by Sri.Rafi Muhammed or other sharers. The appellant as PW1 himself admits that except on 14.5.2007 and 14.4.2008, either the respondent or her son has not signed Ext.A1 or any of the subsequent endorsements thereon. In the absence of personal endorsements made by respondent or her son or other materials available on record, it is clear that respondent did not get her share of balance sale consideration till date. Even appellant in his evidence conceded that except from what he heard from Sri.Muhammed Rafi Thangal, he had no information that respondent received her share of purchase money. If this is the position, it is no doubt clear that the appellant committed breach of contract and he could no longer contend that he was ready and willing to perform his part of the contract which is an essential condition provided by Section 16(c) of the Specific Relief Act, 1963, ## **R.F.A.No.267 of 2016** ## **:-14-:** for a decree for specific performance. 15. But the appellant's contention is that the endorsements consenting to extension of sale agreement on 7.8.2010 and 7.7.2011 as well as endorsements acknowledging receipt of purchase money on various dates appearing on the reverse pages of Ext.A1, were made by Sri. Muhammed Rafi as respondent's attorney and therefore were binding on her. If this contention is correct, the respondent's plea that plaintiff committed breach of contract could only be negatived. 16. This therefore takes as to the question as to whether Sri. Muhammed Rafi Thangal was empowered by terms of Ext.A1 agreement to enter into contract for sale and do all whatever necessary to materialise execution of sale deed on behalf of the respondent. 17. Ext.A4 power of attorney is an ## **R.F.A.No.267 of 2016** ## **:-15-:** un-registered deed executed by all the legal heirs of the deceased Seethi Thangal before a Notary Public. Execution of this document is not disputed by the respondent. The document consists of 17 clauses and respondent is also one of the signatories thereto. On a total reading of all the clauses, it is clear that the document was brought into existence by the executants for the purpose of empowering Sri.Muhammed Rafi Thangal, the elder son of Sri.Seethi Haji to administer the aided School in the property after taking managership in his name. From every clause in the document, it is discernible that the intention of the executants was to enable the attorney to carry on the administration of the School as effectively and feasibly as possible. Among these clauses, appellant relies on Clause 14, which according to him, has given power to the attorney to enter into ## **R.F.A.No.267 of 2016** ## **:-16-:** agreement for sale and also execute sale deed on behalf of all the sharers of the property. Clause 14 is extracted below; “14. To sell, exchange, surrender, lease or dispose of any of our properties share in each and to transfer, release any mortgages or also to execute or enforce any powers of sale or other powers under any mortgages or charges or otherwise to realise or obtain the benefit in such manner as our said attorney shall think proper.” 18. The court below after having read this clause along with others was of the view that the document did not empower Mr. Muhammed Rafi Thangal to enter into transactions relating to sale of the property and therefore was not authorised to execute sale agreement or carry out ancillary powers. 19. The learned counsel for the appellant assails this finding forcibly and contends that a ## **R.F.A.No.267 of 2016** ## **:-17-:** meticulous reading of the clause would reveal to every prudent and reasonable mind that the executants, in clear terms, empowered the attorney to execute sale deed which essentially included power to agree for sale also and do whatever was necessary for the purpose even though the general purport of the document was to transfer managership of the School and to enable the Manager to effectively carry on the day to day administrative affairs of the School. 20. The learned counsel for the respondent on the other hand contended that clause 14 in the document is too insufficient to authorise the attorney to enter into an agreement for sale or execute any sale deed since the tenor and the very purport of the document never intended conferment of such wide powers on the attorney. The learned counsel took me to several decisions of the High Courts and ## **R.F.A.No.267 of 2016** ## **:-18-:** the Honourable Apex Court which explain the purpose of a power of attorney and lay down the guidelines as to the manner in which it ought to be interpreted in a case like the present. It was submitted that one has to look at the manner in which the power is given to the principal and the true intention of the executant has to be ascertained with reference to all the clauses in the document as well as attending circumstances surrounding in which it came to be executed. The precise argument is to the effect that unless the power given could be shown to be specific and clear, there is no justification for exercising it under any shadow of power. The submission is that the power granted should be interpreted very strictly in the light of the terms of the document. It was also submitted that unless the power given expressly authorises the agent to present a ## **R.F.A.No.267 of 2016** ## **:-19-:** document before the Registrar and admit execution thereof, a mere authorisation to the attorney by itself is insufficient to constitute power to enter into agreement for sale or sale deed. In support of this plea, the learned counsel relied decisions in **R.V.E.Venkatachalam v. B.A.Devaneson, The Church of Christ Charitable Trust & Educational Charitable** **Society v. M/s.Ponniamman Educational Trust** **[(2012)8 SCC 706], Devkubai N.Mankar & ors. v. Rajesh Builders & ors. (1997(1) BomCR 664)** and **Syndicate Bank, Bangalore v. I.K.Amitha & ors. (ILR 1985 Ker.1900)** . 21. On anxiously scrutinising clause No.14 with reference to other clauses in Ext.A4 in the light of the decisions cited by the learned counsel for the respondent, I am of the opinion that clause 14 is still clear enough to authorise Sri. Muhammed Rafi Thangal to sell or transfer the shares in the ## **R.F.A.No.267 of 2016** ## **:-20-:** property of the deceased Seethi Haji and exercise powers of disposition in appropriate manner. It is a fact that Sri.Seethi Haji incurred liabilities at the time of his demise in connection with the management and administration of the School, and the sharers were nourishing the idea of discharging the liabilities by sale of the property. It must be therefore reasonably thought that at the time of entering into Ext.A4, the parties consciously incorporated clause 14. Therefore, the finding of the court below that clause 14 in the power of attorney did not authorise Sri. Muhammed Rafi Thangal to enter into sale agreement or sale, is not legal and is liable to be interfered with. 22. The learned counsel for the respondent submitted that in any view of the matter, Ext.A4 did not affect respondent's rights in the property ## **R.F.A.No.267 of 2016** **:-21-:** for long nor it continued to be in force on 14.5.2007 when Ext.A1 sale agreement was executed, since on the very next date of execution of Ext.A4, she had executed Ext.B1 registered power of attorney in favour of her son DW1, authorising him to enter into agreement for sale and also execute sale deed in respect of her property and also initiate litigations whenever necessary on her behalf. The argument of the learned counsel is based on Section 207 of the Indian Contract Act, 1972, which says that the contract of agency should be deemed to be impliedly revoked or renounced by the conduct of the principal or the agent themselves. When the conduct of the principal is made known to the agent by reasonable means that the former was not interested in sustaining the relationship, it would result in implied revocation of the authority. The contention is to the effect ## **R.F.A.No.267 of 2016** **:-22-:** that after Ext.B1 registered attorney came to existence on 4.9.2002, clause 14 in Ext.A4 became extinct so far as respondent was concerned. 23. It is an undisputed fact that on 14.5.2007, respondent's son signed on her behalf accepting Ext.A1 agreement for sale as her attorney. It is evident from the document itself that he signed as her attorney. This was clear to all the signatories including Sri. Muhammed Rafi Thangal who is also one among the signatories. It is relevant to note that Sri.Rafi Thangal subscribed his signature only in his personal capacity as the sharer. That means respondent did not allow Sri. Muhammed Rafi Thangal to act as her attorney on the strength of the clauses in Ext.A4 and it has come out in evidence that it was DW1 who negotiated the sale as well as acted on her behalf all through out since she was at that time abroad. In other words, power given ## **R.F.A.No.267 of 2016** ## **:-23-:** under Ext.A4 was impliedly revoked by respondent to the knowledge of all on execution of Ext.B1 registered power of attorney and her decision to rescind clause 14 was made known to Sri. Muhammed Rafi Thangal at least on 14.5.2007 when he joined execution of Ext.A1 along with DW1. Therefore, it is wrong to contend that clause 14 was in force on 14.5.2007 or on any subsequent periods. 24. The appellant contends that he was not aware of Ext.B1 deed and further he had no notice of alleged implied revocation of clause 14 in Ext.A4. It is true that revocation of agency could take effect against the third party only when it is made known to him. Wisdom suggests that when he had taken Ext.A1 agreement for sale signed by respondent's attorney, he had due notice that DW1 alone could have granted further extension also. He knew that first extension of agreement was made by ## **R.F.A.No.267 of 2016** ## **:-24-:** joint endorsement of all sharers and DW1. When subsequent endorsements were made solely by Muhammed Rafi Thangal, it was upto a prudent buyer to have made sure as to how the author of endorsements could have represented the respondent when on prior occasions she was legally represented by her son,DW1. There is reason to believe that the appellant knew Sri.Rafi Thangal to be vested with no power to receive balance purchase money on behalf of respondent. I am satisfied from the circumstances on hand that the appellant was aware of implied revocation of clause 14 in Ext.A4 after the respondent executed Ext.B1 in favour of her son. That means the extensions made by Sri.Rafi and also the endorsements acknowledging balance sale consideration are not binding on the respondent at all. This is also the view taken by the court below which I agree, though for different reasons as ## **R.F.A.No.267 of 2016** ## **:-25-:** explained above. 25. The appellant in his testimony was not in a position to give a clear cut and satisfactory answer as to why he failed to get assent from the respondent for getting extensions of agreement for sale on two occasions, namely 7.8.2010 and 7.7.2011 and also for making payment of balance sale consideration on various dates to Sri.Muhammed Rafi Thangal. From all these circumstances and conduct of the appellant, it is clear that he was not ready and willing to perform his part of the contractual obligation to the respondent but was only at breach after 14.4.2007 when the first extension of three months was made by respondent's attorney. 26. It is also an admitted fact that respondent cancelled Ext.A4 power of attorney on 10.11.2012 by giving notice to Sri. Muhammed Rafi Thangal and also School and the government authorities. The ## **R.F.A.No.267 of 2016** ## **:-26-:** cancellation was duly published on newspaper also on 14.11.2012, i.e., after expiry of three years since the first extension of Ext.A1 agreement made on 14.4.2008 for three months. This the respondent did when she came to notice that Sri. Muhammed Rafi Thangal was making preparations to transfer her share in the property to interested persons. She approached this Court also with a writ petition and sought the appellant, the proposed buyer also from getting the managership of the aided school transferred without her consent and in violation of provisions in the Kerala Education Act. All these facts only show that the breach on the part of the appellant continued and it is clear that even after 10.11.2012, also he did not chose to approach the respondent or her son offering to perform his part of the contract by payment of the outstanding balance purchase money. Thus there is enough and ## **R.F.A.No.267 of 2016** ## **:-27-:** satisfactory evidence on record to prove that the appellant committed breach of contract and was not ready and willing to perform his part of contract in compliance with Section 16(c) of the Specific Relief Act. 27. The learned counsel for the appellant submitted that the cancellation of Ext.A4 is of no consequence and the respondent is still bound by the endorsements on Ext.A1 agreement extending time as well as acknowledging receipt of sale consideration, since she herself acknowledged all actions of her brother, Rafi Thangal prior to cancellation, through Ext.A5 affidavit executed by her before a Notary Public on 30.04.2013. Execution of Ext.A5 is not disputed by the respondent and her son himself admits in his testimony that it was executed before a Notary Public and was handed over to Sri. Muhammed Rafi Thangal for being presented ## **R.F.A.No.267 of 2016** **:-28-:** before the Director of Public Instructions, Thiruvananthapuram. 28. In Ext.A5, the respondent has ratified the actions of her brother, Sri. Muhammed Rafi Thangal as her attorney. She agreed to revive Ext.A4 and also undertook to be bound by the terms and conditions therein. According to the learned counsel for the appellant, Ext.A5 should be read as evidence of ratification of all the past actions of Sri. Muhammed Rafi Thangal which he had carried out with respect to the extension of period of agreement and receipt of balance sale consideration. **==> picture [402 x 12] intentionally omitted <==** submitted that Ext.A5 affidavit will not help the appellant in any manner since it cannot be reckoned to be an evidence under law. In order to buttress the legal position that an affidavit is not an ## **R.F.A.No.267 of 2016** ## **:-29-:** evidence under law, he relied on the decisions reported in **Smt.Sudha Devi v. M.P.Narayanan & ors. (1988 AIR 1381), Chhotan Prasad Singh & ors. v. Hari Dusadh & ors. (AIR 1977 (SC)** 407) and **Nirmala** **v. Hari Singh (AIR 2001 HP 1)** . But that position cannot apply to the facts before me since Ext.A5 is relied on as a document containing an admission alleged to be made by the respondent and therefore it is no doubt admissible in evidence but the truth of the admission is nevertheless a fact to be proved when challenged. DW1 explained the circumstances under which Ext.A5 affidavit came to be executed and handed over to Sri.Rafi Thangal. Revocation of Ext.A4 was taken notice of by the educational authorities when difficulties relating to administration of school began to be experienced by all alike. This resulted in near relatives interfering with the issues between the respondent ## **R.F.A.No.267 of 2016** **:-30-:** and Rafi Thangal and with a view to clear all obstructions in the way of feasible administration of school, the respondent ultimately consented to ratify the actions of her brother which would not have otherwise become valid and legal. Such a consent was absolutely essential since without her co-operation, the school administration would have become otherwise difficult. 30. There is nothing in Ext.A5 to show that respondent acknowledged the actions done by Rafi Thangal referable to transactions relating to sale of the plaint schedule property. Her conduct whatever all through out gives no indication that she wanted clause 14 to revive or to bind her interests in the property. The said clause was already set at naught by execution of Ext.B1 immediately the next day. If at all she wanted the clause to revive, she would only have thought ## **R.F.A.No.267 of 2016** ## **:-31-:** of cancelling Ext.B1 which she never did till date. 31. The learned counsel for the appellant relying on the last sentence in Ext.A5 extracted below contended that respondent even consented to transfer of ownership of her share to the appellant and this sufficiently meant that all disputes between parties were resolved. The last sentence is extracted below: “I have no objection in changing management involving ownership of Aleemul Islam Higher Secondary School, and ownership of properties of the abovesaid school, in favour of Mr.Ahammed haji, S/o Moidunni, Muslim Veettil Chalakkal House, Kundaliyoor desom, Engandiyoor amsom, as already submitted through my power of attorney holder.” **==> picture [437 x 12] intentionally omitted <==** acknowledgment of revival of clause 14 in Ext.A4 or **==> picture [437 x 108] intentionally omitted <==** respondent's share of balance sale consideration to ## **R.F.A.No.267 of 2016** **:-32-:** her. Ext.A5 will not help the appellant to get out of breach of contract already committed by him and contend that he was ready and willing to perform his part of the contract towards the respondent relying on the alleged subsequent conduct of her. It is also not proved by the appellant as to how the transfer of property could have proceeded following Ext.A5 when it is not proved to be supported by any consideration. 32. For all these reasons together, I am satisfied that the endorsements on the reverse pages of Ext.A1 are not binding on the respondent and the appellant committed breach of contract and was not ready and willing to perform his part of the contractual obligation in compliance with the mandate under Section 16(c) of the Specific Relief Act, for getting a decree for specific performance. 33. The next question is as to whether the suit ## **R.F.A.No.267 of 2016** **:-33-:** is time barred as held by the court below. The learned counsel for the appellant very strenuously assailed this finding submitting that the suit filed as on 3.12.2013 is within time in as much as what applied to the case on hand is second part of Article 54 of the Limitation Act,1963. The learned counsel submitted that this being a case where there were extensions after expiry of original 11 months period fixed, first Part of Article 54 cannot apply. According to the first Part of this Article, period of three years commences from the date fixed for the performance. Relying on **Panchanan Dhara & ors. v. Monmatha Nath Maity** **(Dead) through Lrs. & anr. [(2006)5 SCC 340],** the learned counsel submitted that when subsequent extension of agreement is made, it is then a case where second part of Article 54 alone could apply. Besides this, it was submitted that Ext.A1 did not ## **R.F.A.No.267 of 2016** ## **:-34-:** provide a fixed calendar date for the performance of contract. Therefore, it was argued that unless a fixed calendar date is provided for in the contract, what would apply is Second Part of Article 54 as held in **Ahmmadsahab Abdul Mulla** **(dead) by proposed Lrs. v. Bibijan & ors. (2009 KHC** **477 SC)** . It is true that either on 14.7.2007 or on subsequently extended dates, the parties did not fix a calendar date for performance of Ext.A1 contract. What was agreed was execution of agreement within the range of particular period and in my view, in such a case second part of Article 54 alone will apply as held in **Ahmmadsahab's** case supra. 34. Under Article 54 first part, the limitation starts from the date when the plaintiff has notice that performance is refused. The learned counsel for the appellant drawing my attention to paragraph ## **R.F.A.No.267 of 2016** ## **:-35-:** 10 of the written statement submitted that the appellant had notice of refusal of performance only when he received Ext.B6 notice sent by the respondent. This notice was sent by the respondent after she decided to cancel Ext.A4 power of attorney and through this notice she conveyed to the appellant that she did not authorise the appellant to transfer her share and Ext.A1 agreement for sale already stood revoked. If Ext.B6 is taken as the date of refusal of performance, no doubt the suit brought is within time. The court below found the suit to be barred assuming that period of limitation was governed by first part of Article 54. 35. According to me, the contention that the suit is not barred by limitation is difficult to be accepted on facts since the circumstances in the case on hand reasonably indicate that right from ## **R.F.A.No.267 of 2016** ## **:-36-:** 14.7.2008 when the agreement for sale was for the first time extended by the respondent, the appellant failed to discharge his contractual obligation to the respondent. I have already held that he failed to make payment of the fractional share of sale consideration due to the respondent till date. All the payments made were to Sri. Muhammed Rafi Thangal who did not have any authority to accept the amounts. He knew that clause 14 contained in Ext.A4 which he relied on was impliedly revoked and therefore itself his acts with Sri. Muhammed Rafi Thangal towards performing the contract were not sufficient for discharging his contractual obligations towards the respondent. As a person who reasonably knew that he was at breach right from 14.7.2008, the appellant had legitimate reason to think that the respondent was not compelled by law to perform her part of the ## **R.F.A.No.267 of 2016** ## **:-37-:** contract for his own fault. When appellant's breach started right from 18.7.2008 and it was a legitimate clause for respondent's refusal for performance, the date of breach should coincide with the date of refusal and in that manner, the suit should have been brought within three years since 14.7.2008 even assuming that second part of Article 54 applied to the facts of the case. Therefore, I also hold agreeing with the court below that suit is barred by limitation though for different reasons. So also since appellant has committed breach of contract, he is not entitled to get back the fractional 1/11 share secured by the appellant out of Rs.25 lakhs advance amount. 36. In view of the discussions made above, I do not find any reasons to interfere with the judgment and decree dismissing suit. **R.F.A.No.267 of 2016** **:-38-:** In the result, appeal fails and it is dismissed. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/