Sau. Madhuri W/O Ramesh Etankar ... vs Shri Nilesh Subhashandji ...
2022 Latest Caselaw 7574 Bom

                              1 of 27                 CRA-16-22 & 17-22.odt




  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           NAGPUR BENCH AT NAGPUR


    CIVIL REVISION APPLICATION NO. 16 OF 2022


1 Shri Sharad Sitaramji Shende,              : APPLICANTS
  Aged about 67 years, Occu. Cultivation,
  R/o Sai Nagar, Warora, Tahsil-Warora,
  District - Chandrapur
2. Smt. Kantabai Prabhakar Shende,
   Aged about 57 years, Occu. Household
3. Shri Sajjan Prabhakar Shende,
   Aged about 42 years, Occu. Business
4. Shri Ajay Prabhakar Shende (since
   deceased) through L.Rs.
   4-a) Aryan Ajay Shende, Aged 13 years,
   4-b) Kartik Ajay Shende, Aged 11 years,
   being minors through guardian
   grandmother Smt. Kantabai Prabhakar
   Shende, No.2 to 5 R/o Hanuman Mandir
   Ward, Maitri Chowk, Gandhi Ward,
   Warora, Tahsil - Warorak, District-
   Chandrapur
5. Shri Aatish Haribhau Shende,
   Aged about 29 years, Occu. Cultivation,
   R/o Gandhi Ward, Warora Tahsil -
   Warorak, District- Chandrapur.
6. Shri Vijay Haribhau Shende,
   Aged about 32 years, Occu. Cultivation,
   R/o Gandhi Ward, Warora Tahsil -
   Warorak, District - Chandrapur
7. Smt. Meena Haribhau Shende,
   Aged 26 years, Occu. Household,
   R/o Gandhi Ward, Warora Tahsil-Warorak,
   District - Chandrapur
                            VERSUS
                                2 of 27             CRA-16-22 & 17-22.odt




1. Shri Nilesh Subhashandji Katariya,       : RESPONDENTS
   Aged about 41 years, Occu. Cultivation &
   Business, R/o Gandhi Chowk, Wani, Tahsil
   - Wani, District - Yavatmal
2. Sau. Madhuri w/o Ramesh Etankar,
   (Maidan name Ku. Madhuri Prabhakar
   Shende) Aged about 35 years, Occu.
   Household, R/o Tukum, Chandrapur
   Tahsil & District - Chandrapur
3. Smt. Pushpa w/o Haribhau Shende,
   Aged about 57 years, Occu. Household,
   R/o Gandhi Ward, Warora, Tahsil Warora,
   District - Chandrapur
4. Sukh Samruddhi Developers, Wani
   through Shri Ashok Ratanlalji Bhandari,
   Aged about 50 years, Occu. Business, R/o
   Wani, Tahsil - Wani, District - Yavatmal
5. Smt. Vimla Jodhrajji Kothari,
   Aged about 76 years, Occu. Household
   (Now dead)
6. Shri Dilip Jodharajji Kothari,
   Aged about 50 years, Occu. Business
7. Shri Prashant Jodharajji Kothari,
   Aged about 46 years, Occu. Business,
   Nos.5 to 7 R/o Jatra Maidan Road, Wani,
   Tahsil - Wani, District - Yavatmal
8. Sau. Meena Rajendra Chajed,
   Aged about 53 years, Occu. Household,
   R/o Katangi, Tahsil & District - Balaghat
   (M.P.)
9. Sau. Sapna Manish Chordiya,
   Aged about 43 years, Occu. Household,
   R/o Canada Corner, Nashik, Tahsil and
   District - Nashik
10 Sau. Jyoti Nandlal Parakh,
   Aged about 55 years, Occu. Household,
   R/o Ashok Stambh, Nashik, Tahsil &
   District - Nashik
                                3 of 27                      CRA-16-22 & 17-22.odt




Mr. M.G. Bhangde, Senior Advocate with Mr. S.S. Sarda, Advocate with
Mr. R.M. Bhangde, Advocate for Applicants
Mr. S.P. Dharmadhikari, Senior Advocate with Mr. Deoul Pathak,
Advocate for respondent No.1

                              WITH

     CIVIL REVISION APPLICATION NO. 17 OF 2022

 1 Sau. Madhuri w/o Ramesh Etankar             : APPLICANTS
   (Maidan name Ku. Madhuri Prabhakar
   Shende) Aged about 35 years, Occu.
   Household, R/o Tukum, Chandrapur
   Tahsil & District - Chandrapur
 2 Smt. Pushpa w/o Haribhau Shende,
   Aged about 57 years, Occu. Household,
   R/o Gandhi Ward, Warora, Tahsil Warora,
   District - Chandrapur
                               VERSUS
 1. Shri Nilesh Subhashanji Katariya,            RESPONDENTS
    Aged about 41 years, Occu. Cultivation &
    Business, R/o Gandhi Chowk, Wani, Tahsil
    - Wani, District - Yavatmal
 2. Shri Sharad Sitaramji Shende,
    Aged about 67 years, Occu. Cultivation,
    R/o Sai Nagar, Warora, Tahsil - Warora,
    District - Chandrapur
 3. Smt. Kantabai Prabhakar Shende,
    Aged about 57 years, Occu. Household
 4. Shri Sajjan Prabhakar Shende,
    Aged about 42 years, Occu. Business
 5. Shri Ajay Prabhakar Shende (since
    deceased) through L.Rs.
    4-a) Aryan Ajay Shende, Aged 13 years,
    4-b) Kartik Ajay Shende, Aged 11 years
    being minors through guardian
    grandmother Smt. Kantabai Prabhakar
    Shende. No.3 to 5 R/o Hanuman Mandir
    Ward, Maitri Chowk, Gandhi Ward,
                                 4 of 27         CRA-16-22 & 17-22.odt




    Warora, Tahsil - Warorak, District -
    Chandrapur
6. Shri Aatish Haribhau Shende,
   Aged about 29 years, Occu. Cultivation,
   R/o Gandhi Ward, Warora Tahsil -
   Warorak, District - Chandrapur
7. Shri Vijay Haribhau Shende,
   Aged about 32 years, Occu. Cultivation,
   R/o Gandhi Ward, Warora, Tahsil -
   Warora District- Chandrapur
8. Smt. Meena Haribhau Shende,
   Aged 26 years, Occu. Household,
   R/o Gandhi Ward, Warora Tahsil - Warora
   District - Chandrapur
9. Smt. Vimla Jodharajji Kothari,
   Aged about 76 years, Occu. Household
   (Now dead)
10. Shri Dilip Jodharajji Kothari,
    Aged about 50 years, Occu. Business
11. Shri Prashant Jodharajji Kothari,
    Aged about 46 years, Occu. Business,
    Nos. 8 to 10 R/o Jatra Maidan Road, Wani,
    Tahsil - Wani, District - Yavatmal
12. Sau. Meena Rajendra Chajed,
    Aged about 53 years, occu. Household,
    R/o Katangi, Tahsil & District - Balaghat
    (M.P.)
13. Sau. Sapna Manish Chordiya,
    Aged about 43 years, Occu. Household,
    R/o Canada Corner, Nashik, Tahsil and
    District - Nashik
14. Sau. Jyoti Nandlal Parakh,
    Aged about 55 years, Occu. Household,
    R/o Ashok Stambh, Nashik, Tahsil &
    District Nashik
15. Sukh Samruddhi Developers, Wani
    through Shri Ashok Ratanlalji Bhandari,
    Aged about 50 years, Occu. Business, R/o
    Wani, Tahsil - Wani, District - Yavatmal
                                5 of 27                       CRA-16-22 & 17-22.odt




Mr. M.G. Bhangde, Senior Advocate with Mr. S.S. Bhalerao, Advocate
for Applicants
Mr. S.P. Dharmadhikari, Senior Advocate with Mr. Deoul Pathak,
Advocate for respondent No.1

            CORAM :                      MANISH PITALE, J.

            RESERVED ON :                06/07/2022

            PRONOUNCED ON: 03/08/2022


JUDGMENT

Admit. Heard finally with the consent of learned counsel

appearing for the contesting parties.

2. These two Revision Applications have been filed by

defendants in a suit filed by the respondent No.1 for specific

performance. While Civil Revision Application No.16/2022, is

filed by the original defendant Nos.1 to 4 and 6 to 8, Civil

Revision Application No.17/2022, is filed by the original

defendant Nos.5 and 9. In these Revision Applications, the

applicants have challenged common order dated 20/01/2022,

passed by the Court of Civil Judge, Junior Division, Warora,

District Chandrapur on Exhs.39 and 57, i.e. the two applications 6 of 27 CRA-16-22 & 17-22.odt

filed for rejection of the plaint under Order VII Rule 11 of the

Code of Civil Procedure, 1908 (CPC). The Court below has

rejected both the applications, holding that the suit filed by the

respondent No.1 deserves to go to trial.

3. The facts, in brief, leading to filing of the present Revision

Applications are that on 03/02/2011, a document titled as " Sauda

Chitthi", was executed between the respondent No.1 with one

Jodhrajji Kothari on the one hand and the applicants herein on the

other. In these documents, it was stated that the applicant had

agreed to sell specific area of land at Rs.40,00,000/- per acre, in

respect of which amount of Rs.2,01,000/-, was received by the

applicants and that an agreement in that regard would be executed

on 17/02/2011, on which day, further amount to the extent of 25%

of the consideration would be received by the applicants.

4. Subsequently, a document was executed between the said

parties on 17/02/2011, titled as document for extension of time to

execute agreement. In this document, reference was made to the

earlier "Sauda Chitthi", dated 03/02/2011 and it was stated that 7 of 27 CRA-16-22 & 17-22.odt

thereafter, when advertisement was published on 06/02/2011, in a

newspaper as regards the said "Sauda Chitthi", written objections

were received on 11/02/2011, from some relatives of the applicants

herein, due to which the parties had agreed for extending the time

beyond 17/02/2011, for execution of the agreement. It was further

stated that upon the objections being dealt with and settled, the

agreement would be executed.

5. In May, 2018, the respondent No.1 filed Special Civil Suit

No.11/2018, before the Court below for specific performance of

the said document i.e. "Sauda Chitthi", dated 03/02/2011, read

with document dated 17/02/2011, for extension of time. It was

claimed that in terms of the said documents, a concluded contract

had come into existence between the parties. It was submitted that

as per the document executed on 17/02/2011, for extension of

time, it was clear that time was not the essence. As objections were

raised in respect of the said transaction, the applicants had filed a

suit against the objectors, resulting in a decree against them, which

was then taken in appeal and the same is pending. It was claimed

that when the respondent No.1 got knowledge of repudiation of 8 of 27 CRA-16-22 & 17-22.odt

the said contract by the applicants, that he was constrained to file

the aforesaid suit. Apart from claiming specific performance in the

aforesaid manner, the respondent No.1 claimed alternative relief of

grant of decree of Rs.6,02,01,000/-, in his favour.

6. In the said suit, the applicants filed the said applications at

Exhs.39 and 57, under Order VII Rule 11 of the CPC, for rejection

of the plaint. While the applicants in C.R.A. No. 16/2022,

claimed that there was no concluded contract and no specific

performance could be granted of an agreement to enter into an

agreement, the applicants in C.R.A. No.17/2022, additionally

sought rejection of the plaint because they were not even

signatories to the said documents, of which specific performance

was claimed. In other words, the applicants claimed that there was

no cause of action disclosed in the plaint, thereby justifying its

rejection. It was further claimed by the applicants before the Court

below that the suit was hopelessly barred by limitation and on that

ground also the plaint deserved to be rejected.

7. By the impugned common order, the Court below rejected 9 of 27 CRA-16-22 & 17-22.odt

both the applications, holding that the documents in question read

with the contents of the plaint sufficiently disclosed cause of action

and that in the facts and circumstances of the present case,

limitation being a mixed question of facts of law, the plaint could

not be rejected on either ground raised by the applicants.

8. Aggrieved by the same, the applicants filed the present

Revision Applications, wherein notices were issued and interim

stay was granted. The contesting respondent No.1 appeared

through counsel and the applications were taken up for hearing on

merits.

9. Mr. M.G. Bhangde, learned Senior Counsel appearing for the

applicants in both the applications submitted that the impugned

common order deserved to be set aside and the plaint ought to be

rejected as the documents in question clearly demonstrated that

the parties had executed an agreement to enter into an agreement

and, therefore, no decree of specific performance could be granted

on the face of it. It was submitted that the contents of the plaint

read with the aforesaid two documents demonstrated that no 10 of 27 CRA-16-22 & 17-22.odt

concluded contract was executed and that it was merely a desire of

the parties to enter into an agreement, which was yet to be

executed and, therefore, there was no question of specific

performance of such a document being granted by the Court

below.

10. The learned Senior Counsel invited attention of this Court to

the contents of the aforesaid two documents to submit that there

was no question of any ambiguity in the matter and that the

documents did not signify a concluded contract for the reason that

a specific agreement stating the terms of the contract between the

parties was yet to be executed. The mode and method of payment,

as also time fixed for performing the contract were not specified,

thereby showing that the respondent No.1 could not claim

existence of cause of action for filing the suit for specific

performance.

11. The learned Senior Counsel further submitted that specific

performance of the contract is based on existence of a valid and

enforceable contract and that the Court cannot make a contract 11 of 27 CRA-16-22 & 17-22.odt

between the parties where none exists. It was emphasized that in

the absence of the details of the manner of payment of

consideration and the time fixed for performance of the contract, it

could not be said that there was "consensus ad idem", between the

parties. It was also submitted that only the terms of the documents

in question could be looked into and there was no scope to

examine the nature of the documents on the basis of previous or

subsequent conduct of the parties, since the documents themselves

ought to demonstrate a concluded contract between the parties.

12. It was further submitted that the suit was barred by

limitation on the face of it, because the contents of the plaint itself

demonstrated that the respondent No.1 was well aware about the

transaction not going through, well before filing of the suit in May,

2018. It was submitted that the limitation period of three years

from the date of knowledge of repudiation of the contract was over,

years before the suit was actually filed.

13. In Civil Revision Application No.17/2022, Mr. Bhangde, learned

Senior Counsel, specifically submitted that the applicants therein were 12 of 27 CRA-16-22 & 17-22.odt

not even signatories to the documents in question and, therefore, there

was no question of seeking specific performance against those who were

not parties. It was submitted that in such circumstances, the suit could

certainly not proceed against the said applicants i.e. original defendant

Nos.5 and 9.

14. The learned Senior Counsel in support of his contentions relied

upon judgments of the Hon'ble Supreme Court in the cases of Speech

and Software Technologies (India) Private Limited Vs. Neos Interactive

Limited reported in (2009) 1 SCC 475; Satish Kumar Vs. Karan Singh

and another reported in (2016) 4 SCC 352 and Fatehji and Company

and another Vs. L.M. Nagpal and others reported in (2015) 8 SCC 390.

The learned Senior also relied upon judgments of this Court in the cases

of Jayantilal Devji Shah (Haria) Vs. Mangesh Dasrath Gaikar and others

reported in 2018(2) Mh.L.J. 709 and Abu Zar Prehman Khan Vs.

Prakashchandra Shriram Gotmare and others reported in 2017(5)

Mh.L.J. 460. The learned Senior Counsel also relied upon judgments

of Delhi High Court in the cases of Sobhag Narain Mathur Vs. Pragya

Agrawal and Ors., (judgment and order dated 04/02/2016, passed in

CS (OS) No. 176/2007); M/s. Harison Traders Ltd. Vs. Mrs. Raj Bhalla

reported in ILR (2006) I Delhi 219 and T. Muralidhar Vs. PVR Murthy

reported in 2014 SCC OnLine Del 2326.

13 of 27 CRA-16-22 & 17-22.odt

15. On the other hand, Mr. S.P. Dharmadhikari, learned Senior

Counsel appearing on behalf of contesting respondent No.1 in both the

Revision Applications submitted that, first and foremost it needs to be

appreciated that the question of rejection of plaint at the threshold is

being considered and the position of law sought to be emphasized upon

by the applicants would have to be applied after a full dress trial is

conducted and the parties are given an opportunity to lead evidence. It

is submitted that limited enquiry at this stage is, as to whether the

pleadings in the plaint read with two documents in question make out

cause of action for the matter to go to trial. It is submitted that even the

question of limitation in the facts and circumstances of the present case,

being a mixed question of law and facts needs to go to trial and,

therefore, no interference is warranted in the impugned common order

passed by the Court below.

16. By referring to the contents of the aforesaid two documents i.e.

"Sauda Chitthi", dated 03/02/2011 and the document for extension of

time dated 17/02/2011, the learned Senior Counsel for the contesting

respondent No.1 submitted that a bare reading thereof demonstrates

that a concluded contract had taken place and that even if it was stated

therein that an agreement would be executed, such execution of 14 of 27 CRA-16-22 & 17-22.odt

agreement was for giving form to the contract which was already

entered into. The learned Senior Counsel submitted that the contents

of the aforesaid "Sauda Chitthi", recorded the subject matter of the

transaction, the rate at which the property was being purchased, the

initial amount paid and future steps to be taken by the parties on the

basis of such concluded contract for purchase of immovable property.

17. It was submitted that even if there was scope for contending that

there was ambiguity in the documents, it would be a matter for trial,

particularly in the light of the manner in which the applicants

themselves had proceeded in the suit filed on their behalf to contest the

objections raised by certain parties to the aforesaid transaction. It was

submitted that there were certain admissions given in the said judicial

proceedings, which were now pending in the form of an appeal filed by

the applicants before the competent Court, demonstrating that the

applicants themselves had proceeded on the basis that the aforesaid

documents signified a concluded contract. Therefore, it was indicated

that the matter ought to go to trial for the parties to be given an

opportunity to contest their claims by leading evidence before the Court

below.

18. It was submitted that merely because the parties had stipulated 15 of 27 CRA-16-22 & 17-22.odt

that there would be a formal agreement prepared, embodying the terms

stated in the "Sauda Chitthi", it could not be said that a concluded

contract had not taken place or that the parties were merely at the stage

of negotiation. It was emphasized that the documents in question, on

the face of it, could not be classified as merely an expression of desire of

the parties and that a bare reading of the documents, read with the

pleadings in the plaint clearly demonstrated that entering into an

agreement in future could not take away the basic character of a

concluded contract under the documents in question. It was submitted

that even if there was no specific agreement regarding the mode of

payment, a conclusion could not be drawn at this stage that the contract

was not complete. It was further submitted that the emphasis on time

being fixed for completion of the sale or specific mode of payment on

the part of the applicants was wholly misplaced and, therefore, it could

not be claimed that there was no cause of action made out in the

aforesaid plaint.

19. On the question of limitation, it was submitted that a bare

reading of the plaint could demonstrate that the question being

necessarily a mixed question of facts and law, requiring the parties to

lead evidence, at this stage, it could not be said that the suit was barred

by limitation. As regards absence of signatures of the original defendant 16 of 27 CRA-16-22 & 17-22.odt

Nos.5 and 9, it was submitted that in the plaint itself there were

pleadings to indicate that according to the applicants, why absence of

signatures of the said defendants would not absolve them of liability

and that the said aspect also deserved to go to trial by giving an

opportunity to the parties to lead evidence. On this basis, it was

submitted that the revision applications deserved to be dismissed. The

learned Senior Counsel relied upon judgments of this Court in the case

of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and others

reported in (1974) 1 SCC 242; The Godhra Electricity Co. Ltd. and

another Vs. The State of Gujarat and another reported in (1975) 1 SCC

199, Urvashiben and another Vs. Krishnakant Manuprasad Trivedi

reported in (2019) 13 SCC 372; W.J. Rossiter, George Curtis and others

Vs. Daniel Miller reported in 1878 Vol. III 1124 and Kollipara

Sriramulu (Dead) by his legal representative Vs. T. Aswatha Narayana

(dead) by his legal representatives and others reported in (1968) 3 SCR

387.

20. Having heard the learned counsel for the rival parties, it needs to

be examined whether the plaint in the present case can be rejected at

the threshold for non-disclosure of cause of action and being barred by

limitation, on a bare reading of the plaint along with the documents

filed therewith.

17 of 27 CRA-16-22 & 17-22.odt

21. This Court is of the opinion that a lot would turn on the

question, as to whether the construction of the two documents in

question i.e. "Sauda Chitthi", dated 03/02/2011 and document for

extension of time dated 17/02/2011, at this stage itself read with

pleadings in the plaint, can be said to have made out a case for rejection

of the plaint or that sufficient material exists for the matter to go to trial.

If the plaint is to be rejected at this stage, this Court will have to come

to a conclusion that the aforesaid two documents and the pleadings in

the plaint, taken on their face value, do not warrant a full dress trial and

that without the exercise of framing of issues and recording of evidence,

the proceedings can be extinguished at this stage itself.

22. Before examining the documents in question and the pleadings

in the plaint, it would be appropriate to refer to the position of law

upon which the learned counsel for the rival parties have placed

reliance. In the case of Speech and Software Technologies (India)

Private Limited Vs. Neos Interactive Limited (supra), the Hon'ble

Supreme Court has referred to the well settled legal position that the

agreement to enter into an agreement is not enforceable and that it does

not confer any right upon the parties. In the case of Satish Kumar Vs.

Karan Singh and another (supra), the Supreme Court has clearly laid 18 of 27 CRA-16-22 & 17-22.odt

down that the Court will not make a contract for the parties who have

not entered into a valid and enforceable contract.

23. In order to conclude that a document can be construed as a

concluded or completed contract, certain factors need to be appreciated.

As far back as in 1878, the House of Lords in the aforementioned case

of W.J. Rossiter, George Cutis and others Vs. Daniel Miller (supra), held

that the parties could be said to be in negotiation when they may have

broadly agreed on cardinal points, but some essential particulars to the

agreement still remain to be settled. But, merely because the parties

have expressly stipulated therein that there shall be a formal agreement

prepared in the future, that in itself cannot lead to the conclusion that

the parties are merely in negotiation. The aforesaid position was

referred to by the Supreme Court in the case of Kollipara Sriramulu

(Dead) by his legal representative Vs. T. Aswatha Narayana (supra) and

it was held as follows:

"4. In other words, there may be a case where the signing of a further formal agreement is made a condition or term of the bargain, and if the formal agreement is not approved and signed there is no concluded contract. In Rossiter VS. Miller Lord Cairns said:

"If you find not an unqualified acceptance subject to the condition that an agreement is to be prepared and agreed upon between the parties, and until that condition is fulfilled no contract is to arise then you cannot find a conclude contract."

19 of 27 CRA-16-22 & 17-22.odt

In Currimubhoy and Company Ltd. VS. Creet5 the Judicial Committee expressed the view that the principle of the English law which is summarised in the judgment of Parker, J. in Von Hatzfeldt-Wildenburg V. Alexander3 was applicable in India. The question in the present appeals is whether the execution of a formal agreement was intended to be a condition of the bargain dated July 6, 1952 or whether it was a mere expression of the desire of the parties for a formal agreement which can be ignored. The evidence adduced on behalf of Respondent 1 does not show that the drawing up of a written agreement was a pre-requisite to the coming into effect of the oral agreement. It is therefore not possible to accept the contention of the appellant that the oral agreement was ineffective in law because there is no execution of any formal written document. As regards the other point, it is true that there is no specific agreement with regard to the mode of payment but this does not necessarily make the agreement ineffective. The mere omission to settle the mode of payment does not affect the completeness of the contract because the vital terms of the contract like the price and area of the land and the time for completion of the sale were all fixed. We accordingly hold that Mr. Gokhale is unable to make good his argument on this aspect of the case."

24. In the case of Bank of India and another Vs. K. Mohandas and

others reported in (2009) 5 SCC 313, the Supreme Court held that true

effect must be given to the clear and unambiguous words used in a

contract and that the intention of the parties must be ascertained from

the language they have used, by considering the surrounding

circumstances and nature and purpose of the contract.

25. It is significant that the said principles have to be kept in mind

while reading the documents in question in the present case, at this 20 of 27 CRA-16-22 & 17-22.odt

stage, only to examine whether the contents of the said documents are

such that there is no scope for the parties to go to trial on the claims

made by the original plaintiff i.e. respondent No.1 herein and that the

plaint deserves to be rejected at the threshold. In this context, the

judgments upon which the learned Senior Counsel appearing for the

applicants has relied in the cases of Sobhag Narain Mathur Vs. Pragya

Agrawal and Ors. and M/s. Harison Traders Ltd. Vs. Mrs. Raj Bhalla

(supra), can be of no avail because in the said two cases, judgments were

rendered after full dress trial and opportunity for the parties to lead

evidence. It was after recording of evidence and material that came on

record that the Delhi High Court applied the aforementioned principles

as regards construction of the documents, to conclude that an

agreement did not exist, of which specific performance could be

granted. As opposed to the said situations before the Delhi High Court,

in the present case, this Court is called upon to reject the plaint at the

threshold, without necessity to lead evidence.

26. In the case of T. Muralidhar Vs. PVR Murthy (supra), the Delhi

High Court held on the facts that rejection of plaint was justified,

because no cause of action was disclosed. It would necessarily have to

be analyzed, as to whether, in the facts of the present case, considering

the pleadings in the plaint and the aforesaid two documents, at this 21 of 27 CRA-16-22 & 17-22.odt

stage, it can be said that no cause of action is made out by respondent

No.1 i.e. the original plaintiff.

27. A perusal of "Sauda Chitthi", dated 03/02/2011, shows that the

area of the subject property is specified, the rate at which it is to be

purchased is specified, the specific amount exchanged between the

parties is stated and it was specifically recorded that "Sauda" was

executed on the said date and that a " Visarpatra" i.e. agreement would

be executed on 17/02/2011. There is no dispute about the fact that on

17/02/2011, instead of executing the agreement, the said document for

extension of time was executed, in the light of the admitted position

that certain objectors had objected to the transaction between the

parties.

28. Even in the subsequent document for extension of time dated

17/02/2011, reference was made to the aforesaid " Sauda Chitthi", dated

03/02/2011, reiterating the details of the area of land, rate at which it

was agreed to be sold and specific amount that exchanged hands, stating

that "Sauda" had been entered into. Thereafter, the said document for

extension of time recorded the nature of objections raised, the manner

in which the Revision Applicants intended to deal with the objections

and that after settling the said dispute they were to execute the 22 of 27 CRA-16-22 & 17-22.odt

"Visarpatra" with respondent No.1 i.e. original plaintiff.

29. In the light of the aforesaid two documents, when the pleadings

in the plaint are perused, it is seen that according to the respondent

No.1 i.e. original plaintiff, the contract was executed between the parties

on 03/02/2011, titled as "Sauda Chitthi", further referring to the

obligation of the parties to execute the agreement and ultimately the

sale deed. After referring to subsequent events that took place in the

form of the necessity to execute the document for extension of time, the

respondent No.1 also referred to Special Civil Suit No.26/2011, filed by

the revision applicants as a consequence of the objections raised by

certain parties to the said contract, the manner in which the suit

proceeded and the fact that the appeal arising from the suit, bearing

R.C.A. No.14/2014, was pending before the competent Court.

30. After stating such facts, the respondent No.1 claimed that he had

suffered projected financial loss due to the revision applicants and after

stating as to the manner in which the cause of action arose, relief was

sought in the form of seeking specific performance of " Sauda Chitthi"

read with the document for extension of time and in the alternative

specific amount was claimed from the revision applicants.

23 of 27 CRA-16-22 & 17-22.odt

31. This Court is of the opinion that applying the above-mentioned

principles pertaining to the question, as to whether the documents

signify a concluded contract or not, at this stage, the respondent No.1

has clearly made out a prima facie case for the matter to go to trial, with

an opportunity to the parties to lead evidence in respect of their

respective stands. As noted above, the position of law as clarified by the

Supreme Court specifies that the language of the document has to be

construed in the light of surrounding circumstances. The reference to

the manner in which the revision applicants were constrained to file the

suit and the fact of pendency of the appeal arising therefrom, shows the

circumstances in which the extension of time was necessitated in the

context of the "Sauda Chitthi", and it could not be said at this stage that

the parties had merely expressed their desire to enter into a contract or

that at this stage itself it can be said emphatically that there was no

concluded contract between the parties. This applies equally to the

objection raised by original defendant nos. 5 and 9, as regards absence

of their signatures on the documents, for the reason that certain facts are

pleaded in the plaint about why absence of their signatures would not

absolve them of their liability and that decree of specific performance

ought to be passed against them also. This aspect would also require an

opportunity for the parties to lead evidence.

24 of 27 CRA-16-22 & 17-22.odt

32. In this context, the learned Senior Counsel appearing for the

respondent No.1 is justified in relying upon judgment in the case of

The Godhra Electricity Co. Ltd. and another Vs. The State of Gujarat

(supra), wherein it is laid down that when there is latent ambiguity that

the necessity for extrinsic evidence arises, particularly, while interpreting

certain statements or documents that may clear the latent ambiguity.

Thus, even if the contentions raised on behalf of the revision applicants

are to be considered, at this stage, at worst, there could be said to be

some latent ambiguity in the documents, which would necessarily

require full dress trial with an opportunity for the parties to lead

evidence. This Court is not in agreement with the learned Senior

Counsel appearing for the revision applicants that applying the above-

mentioned position of law laid down by the Supreme Court in various

judgments, at this stage itself, an emphatic finding can be rendered that

there was no concluded contract between the parties.

33. The emphasis on the absence of details of the mode of payment

of consideration and time being fixed for conclusion of the contract is

answered by the judgment of the Supreme Court in the case of

Kollipara Sriramulu (Dead) by his legal representative Vs. T. Aswatha

Narayana (supra), which in turn relies upon the judgment of House of

Lords in the case of W.J. Rossiter, George Vs. Daniel Miller (supra).

25 of 27 CRA-16-22 & 17-22.odt

This Court is of the opinion that the material on record, including the

pleadings in the plaint and the documents in question cannot lead to a

conclusion that the plaint deserves to be rejected at the threshold and

that the trial is not at all warranted in the facts and circumstances of the

present case. To that extent, the respondent No.1 would be justified in

claiming that, the admissions made in judicial proceedings in the form

of aforesaid suit filed by the revision applicants and the pending appeal

arising therefrom, would have to be looked into to examine as to the

real nature of the documents of which specific performance is sought in

the present case. Considering the aforesaid aspects of the matter, it

cannot be said that the Court below erred in holding that no case was

made out by the revision applicants for rejection of plaint under Order

VII Rule 11-A of the CPC, for failure to disclose cause of action.

34. Insofar as the question of limitation is concerned, this Court is

convinced that the pleadings in the plaint including circumstances

pleaded by the respondent No.1, particularly filing of RCS No.26/2011,

by the revision applicants and pendency of RCA No.14/2014, arising

therefrom, as also other facts pleaded in the plaint demonstrate that the

plaint cannot be rejected on the ground that it is barred by limitation,

on the face of it. The question as to whether the suit was filed within

limitation, applying second part of Article 54 of the Limitation Act, 26 of 27 CRA-16-22 & 17-22.odt

1963, would have to be answered after giving an opportunity to the

parties to lead evidence, because in the facts of the present case, it is

found to be a mixed question of law and facts. There can be no quarrel

with the proposition laid down in the judgments relied upon by the

learned Senior Counsel appearing for the revision applicants, but, in the

facts and circumstances of the present case, no fault can be found with

the finding of the Court below that as the question of limitation is a

mixed question of law and facts, it would also require the parties to go

to trial.

35. Hence, it is found that revision applicants cannot claim rejection

of the plaint at the threshold by application of Order VII Rule 11(d)of

the CPC. In view of the above, it is found that the revision applications

are without any merit and accordingly, they are dismissed. Interim relief

stands vacated.

36. Pending applications, if any, are disposed of.

                                                           JUDGE




MP Deshpande\
                                                          27 of 27                         CRA-16-22 & 17-22.odt




                     LATER ON :

Upon pronouncement of judgment, the learned counsel

appearing for the applicants prayed for extension of interim order

operating during pendency of revision applications. But, since this Court

has stated detailed reasons as to why no case is made out for interference in

revisional jurisdiction, this Court is of the opinion that no case is made out

for extension of interim order.

Accordingly, the prayer is rejected.

JUDGE

MP Deshpande\

Digitally signed by:MILIND P DESHPANDE Signing Date:03.08.2022 14:14