2010 PLP 687 (MLD)

FAISAL ARAB, J.

This suit for specific performance of the contract has been field by the plaintiff as according to the plaintiff in the year 1990 he booked an Apartment bearing No.6 Type-A in the project of the defendant and a sum of Rs.600,000 was paid as advance to the defendant. Thereafter the said apartment was cancelled. It is further case of the plaintiff that in lieu of cancellation of above apartment, the defendant vide letter, dated 19-1-2000 allotted another Flat bearing No.B-302 in the said Project on new terms and a total sum of Rs.16,00,000 was to be paid which were paid but the said apartment was not handed over to the plaintiff. Thus the plaintiff filed the present suit on 6-9-2007. On account of failure of he defendant to contest the proceedings the suit has come up for final disposal. The first receipt that was issued at the time of booking is dated 19-4-1990, when the flat is said to have been booked. The last receipt is, dated 2-5-2002. The entire amount is said to have been paid in the year, 2002 and in terms of the contract, the possession was to be handed over to the plaintiff upon receipt of the entire sale consideration. The question which arises is whether the period of limitation commenced. In my view, it is not all necessary that any particular calendar date is agreed upon between the contracting parties in order to attract the provisions of the first part of the third column of Article 113 of the Limitation Act. When a contract is to be performed on the happening of a future event, without specifying any particular calendar date, then the time from which the period of three years for filing suit for specific performance of a contract, as envisaged by the first part of the third column of Article 113 of the Limitation Act, would commence from the date when the specified future event happens. Thus where performance is subject to happening of a future event and that future event does happen. Then it cannot be said that as a calendar date for the performance of the contract was not specified, the time for filing the suit for seeking specific performance had not begun and would begin only when the defendant has intimated the plaintiff of his refusal to perform. When the performance of a contract is subject to happening of a future event then whenever that future event happens, it is bound to happen on a particular calendar date, and thus it is this date that ought to be considered to have been fixed between the parties for the performance of the contract. In my view the second part of the third column of Article 113 of the Limitation Act would be attracted only when in a contract neither any date is fixed nor its performance is subject to a certain future event. Notwithstanding the above view of this Court with regard to the interpretation of Article 113 of the Limitation Act, as expressed above, counsel for the plaintiff has drawn attention of this Court to the case of Inam Naqshband v. Haji Sheikh Ijaz Ahmed PLD 1995 SC 314 wherein the Hon'ble Supreme Court has held that the meaning of the words "date fixed" as appearing in the third Column of Article 113 of the Limitation Act is a particular date fixed expressly by parties for performance of agreement and mere fact that it is mentioned in the agreement that it would be performed within one week from the date of agreement does not tantamount to fixing the date for the performance of the agreement. In view of such finding of the Supreme Court, this Court has no alternate but to hold that the suit is not barred under Limitation Act. However, keeping in view the fact that entire sale consideration was paid on 22-5-2002 and the present suit was filed on 6-9-2007 i.e. after about 5 years and four months of the final payment, therefore, there is strong possibility that during this long period the defendant as builder might have created third party interest in relation to the suit property and such party is not before this Court. Hence the relief of specific performance on account of plaintiff's own indolence is denied. However, as the plaintiff has made payment of a substantial amount of Rs.16,00,000 to the defendants, the suit is decreed for recovery of the said amount along with 12% interest to be calculated from the date of payment till recovery. The said amount shall be recoverable from the owners of the project Messrs A-One Housing Management. H.B.T./M-42/K??????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.