Allahabad High Court
Measures Sarnath Auto Zone Pvt Ltd vs Measures Span Infra Developers Pvt. ... on 31 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:102725
AFR
Reserved on:13.05.2024
Delivered on:31.05.2024
Court No. - 4
Case :- CIVIL REVISION No. - 35 of 2024
Revisionist :- Measures Sarnath Auto Zone Pvt Ltd
Opposite Party :- Measures Span Infra Developers Pvt. Ltd.
Counsel for Revisionist :- Satish Chandra Dubey,Sr. Advocate,Ujjawal Satsangi
Counsel for Opposite Party :- Ravi Anand Agarwal,Shreya Gupta
Hon'ble Ajit Kumar,J.
1. Heard Sri Rakesh Pandey, learned Senior Advocate assisted by Sri Satish Chandra Dubey, learned counsel for the petitioner and Ms. Shreya Gupta, learned counsel for the contesting respondent.
2. Petitioner before this court has questioned the order passed by Civil Judge (Senior Division), Bareilly rejecting the misc. application filed by the petitioner being paper no.36-C requesting for disposal of misc. application filed under Order 7 Rule 11 CPC first before proceeding with suit.
3. The argument advanced by learned counsel for the petitioner was that the court was to hear and dispose of application filed under Order 7 Rule 11 CPC for rejection of the plaint, if it appeared from bare pleadings raised in the plaint that suit was barred by law. Learned counsel for the petitioner submitted that for a decree of specific performance of contract, the limitation prescribed under Article 54 of Second Schedule of Limitation Act, 1963 was three years and according to him from the pleadings raised in the plaint, it was apparently an admitted position that agreement for sale was executed on 12.09.2012. Thus according to him limitation to maintain a suit would be upto 3 years whereas the suit had been instituted in the year 2020 as the plaint was verified and presented on 07.12.2020. It was also submitted that in paragraph 5 of the plaint it was pleaded that there were two suits going on being O.S. Nos.843 of 2012 and 758 of 2012 relating to the property which was subject matter of agreement for sale and which came to be finally decided on 26.10.2020 and 30.07.2020 respectively but there was no statement of fact pleaded that there was any interim order operating in favour of the parties not to dispose of the suit land during pendency of the suit proceedings. Thus according to him, petitioner was not restrained by any order of court from executing the sale deed pursuant to the agreement for sale. Learned Senior Advocate has placed reliance upon judgment of the Supreme Court in the case of Ahmadsahab Abdul Mulla (2) (dead) v. Bibijan and others (2009) 5 SCC 462 in support of his arguments and prayed to interfere with the order in my exercise of jurisdiction under Section 115 of Code of Civil Procedure.
4. Per contra, it was argued by learned counsel appearing for the contesting respondents, Ms. Shreya Gupta that in view of the limitations as contained under Article 54 of Part 2 of Schedule of Limitation Act, 1963, in the event date was not fixed for performance, the limitation of three years period would start when the plaintiff received a notice of refusal of performance by the proposed vendor. In support of her argument she took the Court to the pleadings raised in paragraphs 4 and 7 of the plaint in which a categorical statement had been made that the last notice sent to the defendant on 03.11.2020 was not replied to and it was for the first time on 30.11.2022 that the defendants refused to execute agreement for sale except on payment of a higher price towards sale consideration. Thus according to her in view of Article 54 cause of action accrued to file a suit on 30.11.2020 only and so the presentation of the suit on 07.12.2020 was well within the time prescribed for. She also took the Court through the document of agreement for sale in which vide paragraph 1 it was stated that the petitioner would get the sale deed registered within three months from the date of agreement for sale and vide paragraph 3 thereof it was stated that the boundary wall will be constructed within a period of 3 months and if there would be any dispute then any registry will be done only after the resolution of such dispute.
5. Ms. Gupta submitted that those two suits were going on relating to the property in question and there was some serious boundary dispute and that is why no boundary was constructed within prescribed period of three months of execution of agreement for sale. She submitted that vide paragraph 4 of the plaint it was clearly pleaded that the registered notice was sent by the plaintiff on 03.12.2012 i.e well within the period of three months for execution of a saledeed in performance of agreement for sale.
6. Learned counsel for the answering respondents has relied upon a recent judgment of the Supreme Court in the case of Eldeco Housing and Industries Limited v. Ashok Vidyarthi and others decided on 30.11.2023 in Civil Appeal No.1043 of 2023 and Madina Begum and another v. Shiv Murti Prasad Pandey and others decided on 01.08.2016 in Civil Appeal No.6687 of 2016 and also a judgment of Division Bench of this Court in the case of M/S Bankhandi Nath Developers Pct. Ltd. v. Alok Kumar Goel and 4 others decided on 31.07.2019 in First Appeal No.118 of 2018
7. Meeting the counter submissions made by Ms. Shreya Gupta, Mr. Rakesh Pandey, learned Senior Advocate for the petitioner has submitted in rejoinder that even if the agreement for sale did not fix any particular date by way of time limit for execution of the sale deed, since the notice dated 03.12.2012 was itself got issued by the plaintiff, it should be taken to be a date fixed by the plaintiff and this limitation to file suit for specific performance of contract may run from the date of the notice and the date time given therein.
8. Having heard learned counsel for respective parties and having perused the records, the question arises for consideration of the Court is whether the pleadings as raised in paragraph 4 would bring the limitation within the meaning of first part of Article 54 or in the event of it being not so, the date of refusal to execute a sale deed mentioned in paragraph 7 as 30.11.2020 would be a point of limitation. Article 54 of the Limitation Act, 1963 runs as under:
Description of suit
Period of limitation
Time from which period begins to run
54. For specific performance of a contract
do
The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
(Emphasis added)
9. From the agreement for sale copy of which is part of the record filed as annexure 1 to the affidavit filed in respect of the said application, I find that no date has been mentioned for execution of the sale deed. Paragraph nos.1, 2 and 3 relevant for the purposes are reproduced hereunder:
"1. यह कि दोनो पक्षों ने बैनामें की तहरीर व रजिस्ट्री के लिये अपनी सहमति से मियाद बैनामा रजिस्ट्री की आज दिनांक से तीन माह करार पाई है।
2. यह कि प्रथम पक्ष निश्चित की अवधि के भीतर अपनी निम्नलिखित सम्पत्ति का बैनामा द्वितीय पक्ष के हक में तहरीर व तकमील कर देगा और कोई भी आपत्ति किसी भी प्रकार की बैनामा करने में नहीं करेगा।
3. यह कि अन्दर म्याद उक्त आराजी पर प्रथम पक्ष द्वारा बाउन्ड्री कराई जायेगी यदि बाउन्ड्री होने के दौराुन कोई विवाद उत्पन्न होता है तो प्रथम पक्ष द्वारा विवाद सुलझाये जाने के पश्चात ही रजिस्ट्री कराई जायेगी। आराजी का फ्रन्ट उत्तर से दक्षिण 82 फिट है।"
(Emphasis added)
10. From a bare reading of the aforesaid paragraphs two facts emerge out: Firstly a period of three months was prescribed for execution of the sale deed with effect from the date of agreement for sale which is admittedly 29.10.2012: and secondly the registry of sale deed was also subject to the condition that boundary wall would be constructed within the prescribed period of three months and if the boundary wall is not constructed on account of any dispute, then the execution of the sale deed will take place only after resolution of such dispute. Thus, it is clear that period of three months was not a date fixed period in paragraph no.1 as prescribed under the agreement for sale and further such period of three months was subject to condition that there should not be any dispute with regard to the boundary as the boundary was to be constructed within such period of three months.
11. In the face of these conditions as laid in the agreement to sell, if I examine the plaint allegations I find that in paragraph 4, a notice was sent on 03.12.2012 by the plaintiff asking the petitioner to execute a sale deed within time. This date is the point for sending the notice within a period of three months. Since three month's period had yet not expired therefore, it cannot be said that 03.12.2012, date of notice sent by the plaintiff should be taken as a date in point of time to execute the sale deed so as to apply the first part of Article 54 of the Limitation Act. Still further, I find that pleadings have been made in paragraph 5 of the plaint to the effect that dispute was going on in respect of the same land and that being a situation coupled with the fact that the boundary wall had not been constructed, it could be a case therefore, that there was some dispute that was why boundary wall was not constructed and this dispute lasted till 26.10.2020 when the second suit was decided. This becomes a question of fact to determine as to whether these suits that were pending, were relating to the same property and was there any dispute regarding the land in question so as to create obstruction in construction of the boundary wall. This could have been determined only after the parties led their evidence. Therefore, this issue becomes mixed question of fact and law whether in the matter of limitation to run so as to determine whether the suit was bared by time or not. The court was to apply the law to the facts yet to come out by way of evidence to be led by the parties and its proper appreciation. There could be a case, therefore, if the land in question which was subject matter of agreement for sale, was in issue in two suits being O.S. Nos.7843 of 2012 and 758 of 2012 and the boundary could not be constructed as per terms carried in paragraph 3 of the agreement for sale, so saledeed could be executed only after the resolution of such dispute. Further upon appreciation of facts if this fact comes out to be a correct fact that there was a dispute qua property in question, then certainly limitation would run from the date when the second suit being 843 of 2012 came to be disposed of finally on 26.10.2020 in the light of paragraph 3 of the agreement for sale.
12. As far as pleadings raised in paragraph no.7 that the plaintiff faced refusal for the first time on 30.11.2020 at the end of the defendant in the matter of execution of saledeed is concerned as defendant had been claimed to have demanded certain more price as consideration, this in my view is also a question of fact which can be decided after appreciation of evidence in support of the facts so pleaded. Thus in any view of the matter therefore, second part of Article 54 is applicable to the present case and looking to the terms and conditions of the agreement for sale vis-a-vis the pleadings raised that two suits, as claimed to be pending in connection qua the same property..
Coming to the judgment cited by Mr. Pandey in the case of Ahmadsahab Abdul Mulla (2) (dead) (supra) I find that the court referred to judgment in the case of Tarlok Singh v. Vijay Kumar Sabharwal:(1996) 8 SCC 367, which court had dealt with the expression 'date fixed for the performance' as contained in Article 54 of the Schedule of the Limitation Act. The court held that the judgment in Tarlok Singh was rendered in a factual scenario and proceeded to hold vide paragraph 10 that the word "'fixed' in essence means having final and crystallized form or character not subject to change or fluctuation".
13. Having held this expression 'date fixed' to be a crystallized notion, the Court meant it to mean that there has to be a date fixed as final limit at a definite point of time. The Court vide paragraph 12 held thus:
"Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression `date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits."
(Emphasis added)
14. This judgment was relied upon by Ms. Gupta, learned counsel appearing for the plaintiff-respondents. She has argued that the what had been held in paragraph 12 was only suggestive of specified date in calendar which is not the case in hand and, therefore, the second part of Article 54 would prevail. A Division Bench of this Court in the case of M/s Bankhandi Nath Developers Pvt. Ltd (supra) in the background of the factual matrix of that case held that the plaint could not be rejected under Order 7 Rule 11 CPC by placing reliance upon a part of the plaint. Vide paragraph 29, the court has held thus;
"29. In our opinion, this itself is a matter of appreciation of evidence and therefore, plaint could not have been rejected under Order VII Rule 11 C.P.C. by placing reliance upon part of plaint and ignoring material pleadings contained in plaint which explain the circumstances leading to institution of suit in the year 2017. In our view, Court below has erred in allowing application under Order VII Rule 11 (d) C.P.C. filed by Defendant-Respondent No.2. In all propriety, Trial Court should have framed an issue regarding question of limitation and decide the same after evidence had been led by parties."
15. In view of the above, therefore, relying upon a part of the pleading in paragraph 4 that a notice was sent by the plaintiff to the defendant to execute the saledeed on 03.12.2012 cannot be read in isolation. It is to be read contextually alongwith further pleadings raised in the subsequent paragraphs. Supreme Court in the case of Madina Begum (supra) has dealt with this issue of limitation prescribed under Article 54 of the Schedule of the Limitation Act, 1963.
16. In that case, Supreme Court first referred to the order of the High Court wherein the period of 6 months to execute the sale deed as prescribed under the Contract Act was taken to be a date fixed for performance of contract and so the limitation was stated to run on the expiry of six months period. Supreme Court did not agree with this above view of the High Court and referred to the judgment in the case of Ahmadsahab Abdul Mulla (supra) to hold that 'date fixed' for performance means as a crystallized notion and the expression date fixed was held to be suggestive of a definite timeline. The Court then proceeded to refer another judgment of the Supreme Court in the case of Rathnavathi and another v. Kavita Ganashamdas, (2015) 5 SCC 223 wherein it was held that if no date was fixed, limitation of three years would begin to run when the plaintiff had the notice of refusal of performance of agreement. That judgment of the Supreme Court was accordingly referred to vide paragraph 20, 21, 22 and 23, and the Court held thus:
"20. Quite independently and without reference to the aforesaid decision, another Bench of this Court in Rathnavathi and Another v. Kavita Ganashamdas[2] came to the same conclusion. It was held in paragraph 42 of the Report that a mere reading of Article 54 would show that if the date is fixed for the performance of an agreement, then non-compliance with the agreement on the date would give a cause of action to file a suit for specific performance within three years from the date so fixed. But when no such date is fixed, the limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement. It was further held, on the facts of the case that it did not fall in the first category of Article 54 since no date was fixed in the agreement for its performance.
21. The Clauses of the agreement for consideration in Rathnavathi were Clauses 2 and 3 and they read as follows:-
"2. The purchaser shall pay a sum of Rs. 50,000 (Rupees fifty thousand only) as advance to the seller at the time of signing this agreement, the receipt of which the seller hereby acknowledges and the balance sale consideration amount shall be paid within 60 days from the date of expiry of lease period.
3. The seller covenants with the purchaser that efforts will be made with the Bangalore Development Authority for the transfer of the schedule property in favour of the purchaser after paying penalty. In case it is not possible then the time stipulated herein for the balance payment and completion of the sale transaction will be agreed mutually between the parties."
22. As far as the present appeal is concerned, the agreement between Gulab Bai and Madina Begum did not specify a calendar date as the date fixed for the performance of the agreement. Consequently, the view expressed in Ahmadsahab Abdul Mulla and Rathnavathi on the first part of Article 54 clearly applies to the facts of the case. In taking a contrary view, ignoring the absence of a specified date for the performance of the agreement and reversing the Trial Court, the High Court has fallen in error.
23. It is not necessary for us to multiply authorities on the subject particularly when the issue has been conclusively settled by a Bench of three learned judges of this Court in Ahmadsahab Abdul Mulla and we see no reason to take a different view.
17. In a recent judgment of Eldego Housing and Industries Limited (supra) the Supreme Court has referred to its earlier judgment regarding the scope of Order 7 rule 11 in the case of Dahiben v. Anvindbhai Kalyanji Bhanusali (Gajra) (dead) through legal representatives and others: (2020) 7 SCC 366. The Court in this case has held that this power under Order 7 Rule 11 is envoked to dismiss the suit summarily at threshold if on the ground contained under the provisions such suit can be dismissed, as the Court would not be permitting the plaintiff to unnecessarily protract the proceedings. The whole purpose and idea is that the meaningless litigation should not be dragged and therefore, such power has to be exercised very cautiously. It could be also a case where no cause of action is seen. So the only question now, therefore, to be seen is as to whether from bare pleadings raised in the plaint it can be concluded that suit was barred by time or where the pleadings does not disclose any cause of action so the suit deserves dismissal at a very threshold.
18. Mr. Pandey, has not argued that there was no cause of action. The only point argued was that the suit was barred by limitation.
19. On the point of limitation, a suit can be dismissed summarily if it is determinable from the pleadings that limitation would have run from a particular point, say 'A', which plaintiff admits and yet suit has been filed beyond prescribed limit. But this is not the case in hand.
20. Looking to the exposition of law on the point and interpretation of the provisions contained under Article 54 of Limitation Act, 1963 in judgments referred to hereinabove, it can be safely concluded that the agreement since did not contain any fixed date or a crystallized date to suggest that if agreement for sale was not executed on or before that date then cause would arise to maintain a suit for specific performance of contract.
21. Even for arguments' sake though law is otherwise, if it is taken that period of three months would run as limitation period, clause 3 of the agreement for sale would come into play, as this clause gives a discretion to the defendant-petitioner to execute the saledeed after the resolution of dispute, if any, by erecting the boundary wall upon the land in suit if it was not constructed within three months of execution of agreement for sale.
22. Looking to the pleadings as raised in paragrpah no.5 to the plaint it can be safely concluded that there was some dispute regarding land in question and the Court would only come to a conclusion after the evidence is led whether this dispute was the reason for petitioner not constructing the boundary wall and not executing the saledeed. There is no pleading in the entire petition that petitioner had ever shown his readiness and willingness to execute the sale deed by constructing the boundary wall, or that he had replied to the first notice. All this, therefore, leads to an inevitable conclusion that question as to limitation is a mixed question of law and fact so as to determine whether the suit in question is filed within limitation period or was barred by law of limitation.
23. In such above view of the matter, therefore, neither I find any manifest error in the order passed by the trial court, nor do I see any wrongful exercise of jurisdiction vested in the Court, nor even any failure to exercise jurisdiction vested in Court that may require this Court to interfere with the order impugned in exercise of its revisional power under 115 C.P.C.
24. However, since the question as to maintainability of the suit for being barred by limitation goes to the root of the matter, I hereby provide that while the issues are framed, the issue qua order 7 rule 11 CPC shall be framed as first issue to be decided as preliminary issue before any other issue is decided. Parties shall be permitted to lead their evidence and shall be afforded reasonable opportunity of hearing upon the said preliminary issue.
25. With these observations and directions, this petition stands disposed of.
Order Date :- 31.5.2024
Deepika
