Monday, 20 June 2016

Under par performance what is the position of the parties where the time for taking action for specific performance has expired under the law of limitation

Under  performance what is the position of the parties where the time for taking action for specific performance has expired under the law of limitation
                                                                                                         
                                                                 

In the case Shrimant Shamarao Suryavanshi Vs Pralhad Bhairoba Suryavanshi the Supreme Court Justice V.N.Khare Bench in Appeal (civil) 2706 of 1991, has discussed the law under Section 53A of the Transfer of Property Act relating to part performance whether such a defence could be taken by a person to protect his property, even though the limitation to bring an action for specific performance to enforce such contract has expired.

The Supreme Court while examining the law in England has held as under; “A perusal of Section 53-A shows that it does not forbid a defendant transferred from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired.”

The Special Committee constituted to go into the details Section 53A of Transfer of Property Act, also considered the question whether protection under the proposed Section 53-A to a transference would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired.

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