The Plot at Pune: Article 54, the Returned Plaint, and Printouts Without a Certificate

Article 54. The period is three years from the date fixed for performance, or, where no date is fixed, from the date on which the plaintiff has notice that performance is refused. The agreement fixed no calendar date - the trigger was the seller's obtaining a no-dues certificate, which depended on his own act. The relevant date is therefore 3 February 2021, when Anand's email refused performance. Three years expired on 2 February 2024.

The second notice does not restart time. A denial in reply to a legal notice in 2022 is a fresh refusal, but limitation runs from the first refusal that gives the plaintiff notice that performance will not be forthcoming. Nor is there an acknowledgment under section 18, since Anand's reply denies the agreement altogether. Bharti's belief that time restarted in August 2022 is mistaken.

Section 14 rescue. The Nagpur suit was filed on 20 December 2023, within time. If the Nagpur court was unable to entertain it from a defect of jurisdiction and Bharti prosecuted that proceeding in good faith and with due diligence, section 14(1) requires the period from 20 December 2023 to 12 March 2024 to be excluded. Excluding 83 days from the terminal date of 2 February 2024 gives about 25 April 2024, so the re-filing on 5 April 2024 is saved. Section 14 is not a licence for careless forum choice - good faith must be shown, and the explanation for choosing Nagpur should be pleaded specifically. Note that section 5 cannot be used, as it does not apply to suits.

They are electronic records. Section 65A of the Indian Evidence Act, 1872 requires the special procedure in section 65B to be followed for the proof of electronic records. Section 65B(1) treats a computer output as a document, and section 65B(4) makes a certificate mandatory where the output is offered as secondary evidence.

Content of the certificate. The certificate must identify the electronic record, describe the manner in which it was produced, and give particulars of the device involved, sufficient to show that the conditions in section 65B(2) are satisfied - that the computer was used regularly, that the information was fed in the ordinary course, and that the device was operating properly.

Position after the 2020 decision. The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal held that the certificate is a hard condition of admissibility, but that it may be produced at any stage and the court may permit or even direct its production. Here Bharti is in possession of the phone and email account, so she can give the certificate herself; a certificate from a stranger or a notary would be worthless.

Anand's denial. The dispute over authorship goes to weight, not to admissibility, and can be tested by comparing the disputed email with admitted emails or by summoning the service provider's records under section 165 of the Evidence Act. But if the 2021 email is excluded for want of a certificate, the refusal date shifts to the 2022 reply, and limitation may become a different question - hence the certificate is central, not incidental.

The statutory requirement. Section 22 of the Specific Relief Act, 1963 provides that where a person sues for specific performance of a contract for the transfer of immovable property, he must, unless the defendant is in possession, claim the relief of possession in the same suit. A decree for specific performance without possession is incomplete, because the buyer pays for the property and gets only a piece of paper.

The remedy. Section 22(2) permits the plaintiff to claim possession by amendment at any stage of the suit, on payment of the additional court fee. Bharti should apply to amend the plaint to add the relief of possession and pay court fee on the value of the property, not merely on the consideration.

The limit. The amendment cannot be allowed after the expiry of the period of limitation prescribed for the relief of possession. Possession claimed on the basis of title under Article 65 of the Limitation Act has a twelve-year period, so in the present facts the amendment is comfortably within time. Had the property been in the defendant's possession without any denial of the plaintiff's title for over twelve years, the amendment could be refused.

Drafting caution. The amendment should also plead the cause of title precisely and seek mesne profits if Anand has been in occupation since the agreement; the court may grant them only from the date of the suit unless a case of wrongful occupation is pleaded.