Bombay High Court
Naginchand S/O Devichand Buchha vs Vinod S/O Tarachand Gupta And ... on 26 September, 2017
Bench: S.B. Shukre
(Judgment) 2609 CRA 104-2017 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
CIVIL REVISION APPLICATION NO. 104/2017
Naginchand S/o Devichand Buccha,
Aged about 71 years, Occu: Business,
R/o. 303, "Ashirvad", Shrikrishnapeth,
Amravati, Tq. & Distt. Amravati. APPLICANT
.....VERSUS.....
1] Shri Vinod S/o Tarachand Gupta,
Aged about 45 years, Occu: Business and
Cultivation.
2] Shri Santosh S/o Tarachand Gupta,
Aged about 43 years, Occu: Business and
Cultivation.
3] Shri Nirmal S/o Tarachand Gupta,
Aged about 41 years, Occu: Business and
Cultivation.
Respondent nos.1 to 3 R/o. Paranjape
Colony, Behind Collector Office, Camp,
Amravati, Tq. & Distt. Amravati.
4] Sau. Kiran w/o Jagdish Gupta,
Aged about 47 years, Occu: household,
R/o. Masanganj, Amravati,
Tq. & Distt. Amravati.
5] Shri Shrikant S/o Vitthaldas Rathi,
Aged about 60 years, Occu: Business and
Cultivation,
R/o. Wallcut Compound, near Dr. Murkey
Hospital, Amravati, Tq. & Distt. Amravati.
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(Judgment) 2609 CRA 104-2017 2/13
6] Shri Rajkumar S/o Madhusudan Rathi,
Aged about 61 years, Occu: Cultivation,
R/o. Kharangana (Morangana),
Tq. Arvi, Distt. Wardha.
7] Shri Ramesh S/o Premlalji Mundhda,
Aged about 69 years, Occu: Cultivation
and Pensioner,
R/o. Shrikrishnapeth, Amravati,
Tq. & Distt. Amravati.
8] Smt. Kanij Joab Hasonjee,
Aged about 62 years, Occu: Cultivation
and Business,
R/o. Om Colony, University Road, Camp,
Amravati, Tq. & Distt. Amravati. RESPONDANTS
Shri M.P. Khajanchi, counsel for applicant.
Shri P.M. Pande, counsel for respondent nos.1 to 4.
CORAM: S.B. SHUKRE, J.
DATE : SEPTEMBER 26, 2017.
ORAL JUDGMENT :
Heard.
2] Rule. Rule made returnable forthwith.
3] Heard finally by consent.
4] This revision application involves a
question, as to whether or not the present suit, filed
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for specific performance of contract, is barred on the
face of it by limitation.
5] In the present case, the respondents filed a
civil suit bearing R.C.S. No.212/2016, against the
applicant. The respondents claimed to be the legal
heirs of deceased Ramkalibai Tarachand Gupta, who
had entered into an agreement to purchase the suit
property comprising two plots admeasuring 2100
sq.ft., as per the proposed layout plan, out of field
survey no.7, situated at Mouza Shegaon, Tahsil and
District Amravati. This agreement was of 26/04/1985
and it provided for execution of the sale deed, latest
by 30/12/1986. This date was extended to
31/03/1989. However, it appears that the sale deed
was not executed in favour of Ramkalibai.
Ramkalibai died on 13/11/2011. The respondents,
being the sons and daughter of deceased Ramkalibai
and Tarachand, learnt in the year 2015 about entering
into an agreement to purchase the suit property
executed between Ramkalibai and the applicant. They
demanded specific performance of contract from the
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applicant, but in vain. Therefore, the respondents filed
a civil suit in June-2016 against the applicant,
claiming specific performance of contract dated
26/04/1985, by giving the direction to him to execute
the sale deed of two plots admeasuring 2100 sq.ft.
6] After filing of the appearance before the
trial court by the defendant no.1, who is the present
applicant, the applicant filed an application under
Order 7 Rule 11(D) of the Code of Civil Procedure (in
short, "C.P.C.") for rejection of the plaint, contending
that on the face of it, by accepting the plaint pleadings
as they are, the suit was barred by law. Article 54 of
the Schedule to the Limitation Act was pressed into
service. The application was opposed by the
respondents. After hearing both sides, the trial court
held that the suit involved a mixed question of law
and facts, and therefore, he rejected the application
by the order passed on 03/05/2017. Not being
satisfied with the same, the applicant is before this
Court in this Revision Application.
(Judgment) 2609 CRA 104-2017 5/13
7] Shri Khajanchi, learned counsel for the
applicant submits that only on the basis of the plaint
pleadings, taken at their face value, one can say that
the suit is barred by law of limitation, because the
pleadings in the plaint themselves show that there
was stipulated in the agreement to sell, time for
performance of contract and it was upto 31/03/1989
and the limitation period of three years as per Article
54 of the Limitation Act began to run from
31/03/1989.
8] Shri Pande, learned counsel for the
respondents submits that in the present case, it could
not be said that the suit for specific performance of
contract is barred by limitation because there were
several other conditions in the agreement to sell dated
26/04/1985, which were to be performed by the
defendants and as they were not performed by the
defendants, it could not be said that limitation began
to run in this case from 31/03/1989. He also submits
that on the date of execution of agreement to sell
dated 26/04/1985, the defendants/vendors were not
(Judgment) 2609 CRA 104-2017 6/13
the owners of the suit property and that they acquired
the suit property, some time later, and therefore,
mentioning of the date of 31/03/1989 as the date for
execution of the sale deed is of no consequence, in
this case.
9] In support of his argument, learned
counsel for the applicant has placed his reliance upon
the following cases.
(i) Hardesh Ores (P) Ltd. -Vs- Hede and
Company, (2007) 5 Supreme Court Cases 614.
(ii) Kanayalal Madhavji Thakkar -Vs- Shree
Padmanabh Builders, 2011(1) Mh.L.J. 939.
(iii) Selwyn Agnelo Botelho -Vs- Norton
D'Souza, 2016 SCC OnLine Bom 5017.
(iv) Anand Laxmi Enterprises -Vs- Vasant
Balu Mhatre and others, 2009(1) Mh.L.J. 445.
(v) Venkatanatha Chary -Vs- Nalla Raji
Reddy, (2016) 15 Supreme Court Cases 654.
10] Shri Pande, learned counsel for the
respondents, in support of his submission, has placed
his reliance upon, in the case of Popat and Kotecha
Property -Vs- State Bank of India Staff Association,
(2005) Supreme Court Cases 510.
(Judgment) 2609 CRA 104-2017 7/13
11] The principles applicable to the exercise of
the discretion under Order 7 Rule 11(D) of C.P.C.
regarding rejection of the plaint or otherwise, are now
well settled. The application filed under Order 7
Rule 11 of C.P.C., can be considered only on the basis
of the pleadings in the plaint understood in their
ordinary sense and at their face value. If the plaint has
been filed on the basis of some documents, reference
to which has been made in the plaint, the contents of
such a document forming part of the plaint can also
be gone into. But, consideration of the defence or
looking for some evidence in order to decide such an
application is a clear no under the settled principles of
law. This could be seen from the cases relied upon by
both sides and referred to in earlier paragraphs.
12] In the present case, the suit has been filed
on the basis of an agreement to sell dated
26/04/1985. It has been pleaded in the plaint that as
per this agreement, the sale deed was required to be
executed upto 30/12/1986. A clear cut pleading in
this regard appears in paragraph no.3 of the plaint,
relevant portion of which reads thus:
(Judgment) 2609 CRA 104-2017 8/13
"(3) That, on the date of execution of agreement
to sale, as on dated 26/04/1985, the defendant no.1
accepted Rs.5,000/- (Rs.2,500/- each plot) as an
earnest money as partner of Nirbhay Trading
Corporation from the mother of plaintiffs Ramkalibai
Tarachand Gupta, remaining balance were required to
be paid by plaintiff's mother on or before 30/12/1985
and sale deed were required to be executed till
30/12/1986."
13] In paragraph no.4 of the plaint, there is
further pleading to the effect that the date of
execution of the sale deed was extended up to
31/03/1989. The relevant portion of this pleading is
reproduced, as below:
(4) That, the plaintiff's mother paid Rs.7,000/-
on dated 02/06/1986 to the defendant no.1 who
extended the date of execution of sale deed upto
31/03/1989."
14] Except for these two pleadings, there is not
a single pleading contained in the plaint to the effect
that time was not of the essence of the contract or
that the sale deed was not intended to be executed
(Judgment) 2609 CRA 104-2017 9/13
only up to 31/03/1989 and that there was a
possibility of execution of the sale deed even after the
date of 31/03/1989. It is also not pleaded in the
plaint that execution of the sale deed was mainly
dependent upon the performance of the some of the
conditions of the contract, which were not performed
by the defendants. It is also not pleaded in the plaint
that the defendants were not the owners of the suit
property on the date of execution of the agreement
dated 26/04/1985, between the parties. Rather, what
has been specifically pleaded in the plaint is the fact
that initially the sale deed was to be executed upto
the date of 31/03/1989. This pleading will have to be
understood in it's ordinary sense and at it's face value
and doing so, what emerges on record is the fact that
in the present case, a specific date was fixed for
performance of contract and so the limitation period
of three years under Article 54 of the Limitation Act,
would begin to run from the date fixed for
performance of contract i.e. 31/03/1989. So, the suit
in the present case, for enforcement of specific
performance of contract, ought to have been filed by
(Judgment) 2609 CRA 104-2017 10/13
the respondent, on or before 31/03/1992. I must say,
this is not a case where the suit could have been filed
within three years from the date on which knowledge
regarding refusal of the performance of contract was
acquired by the plaintiff and this is a case where time
for performance of the contract is already stipulated.
Therefore, the suit in the present case, ought to have
been filed within three years from 31/03/1989 i.e.
latest by 31/03/1992. But, it was not filed on or
before that date. Therefore by following the principles
of the cases relied upon by both sides, I would say
that on the face of it, as disclosed by the plaint
pleadings only, the suit was barred by Law of
Limitation and hence liable to be rejected.
15] These aspects of the case have not been
considered at all by the trial court. In fact, on the face
of the plaint pleadings, it is possible to hold that this
is not a case which involves a mixed question of law
and facts, and therefore, would require the parties to
adduce the evidence to prove the fact that the suit is
or is not within limitation. The impugned order,
therefore, cannot be sustained in the eye of law.
(Judgment) 2609 CRA 104-2017 11/13
16] Of course, learned counsel for the
respondents relying upon the case of Popat and
Kotecha Property -Vs- State Bank of India Staff
Association (supra), has strenuously argued that even
in that case there was an agreement dated
19/01/1983 entered into between the appellant and
the respondent, which stipulated that after completion
of construction of the entire building, the respondent
would execute the sale deed in appellant's favour and
the suit seeking enforcement of this clause along with
other clauses was filed in July-1990. He submits that
the Hon'ble Supreme Court in the factual background
of that case held that the plaint could not have been
rejected under Order 7 Rule 11(D) of C.P.C.
17] True it is, the Hon'ble Supreme Court has
observed in Popat and Kotecha Property -Vs- State
Bank of India Staff Association (supra) against the
backdrop of the facts of that case that plaint in that
case could not have been rejected by resorting to the
provision of Order 7 Rule 11 (D) of C.P.C. But, the
reason, I would say with due respect for holding so
lay in the facts and circumstances of that case. This
(Judgment) 2609 CRA 104-2017 12/13
could be seen from what has been observed in
paragraph no.25 of the judgment. It is seen that there
were different claims made and that non-execution of
the lease deed was just one of those claims. Therefore,
Hon'ble Supreme Court held that when diverse claims
were made by the plaintiff in that suit, the High Court
was wrong in proceeding with the assumption that
only the non-execution of the lease deed was the
basic issue. It also observed that even if it is accepted
that the other claims were relatable to the issue of
non-execution of lease deed, still the other claims had
independent existence. Therefore, it was found that
the provision of Order 7 Rule 11 C.P.C. was not
applicable in that case.
18] Facts of the present case, discussed earlier,
are entirely different. In the present case except for
the claim relating to specific performance of contract,
no other claim has been made by the respondents.
Therefore, the limitation period in the instant case
would have to be ascertained, as per Article 54 of the
Limitation Act, either from the date stipulated for
performance of the contract or where no such date is
(Judgment) 2609 CRA 104-2017 13/13
stipulated, from the time when the performance is
refused. In the instant case, there being a specific
date stipulated for performance of contract, it would
be the first part of Article 54 of the Limitation Act,
which would be applicable and going by it, I have
already found that the plaint filed in the present case
is barred by limitation. The question is answered
accordingly.
19] In the circumstances, the revision
application deserves to be allowed and it is allowed
accordingly.
20] The impugned order is quashed and set
aside.
21] The application of the applicant vide
Exh.10 is allowed. The plaint stands rejected.
JUDGE
Yenurkar
