Bombay High Court
Hemlata Dwarkadhish Joshi And Ors vs Naman Enterprises Thr. Partners ... on 20 September, 2023
Bench: Amit Borkar
2023:BHC-AS:27692
38-cra431-2023.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.431 OF 2023
Hemlata Dwarkadhish Joshi & Ors. ... Applicants
V/s.
Naman Enterprises, through partners
Praatapbhai Mansukhlal Shah & Ors. ... Respondents
Mr. Mutahhar Khan with Mr. Vishal Mehta and Mr.
Ranjyot Panesar i/by MV Law Partners for the
applicants.
Mr.Prajakt Arjunwadkar for the respondents.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 20, 2023
P.C.:
1. Rule. Rule is made returnable forthwith by consent of the
parties.
2. This is an application under Section 115 of the Code of Civil
Procedure, 1908 ("CPC" for short) challenging judgment and order
passed by the Trial Court rejecting application of the applicants
filed under under Order 7 Rule 11(d) of the CPC raising issue of
limitation as regards suit for recovery of amount.
3. Respondent No.1 is original plaintiff who has filed suit for
recovery of amount of Rs.8,93,04,163/- with interest at the rate of
24% per annum. Till the recovery of said amount, injunction is
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sought against defendants from creating third party rights in
relation to the suit property.
4. The suit is based on development agreement executed in
favour of the plaintiff by the defendants. The date of development
agreement is 9 December 2011. The cause of action seeking
recovery of amount as evidenced from the development agreement
is cancellation of development agreement on 20 August 2018.
Such statement is borne out of paragraph 26 of the plaint.
Therefore, the cause of action for filing suit for recovery of amount
and consequential injunction accrued on 20 August 2018.
5. The applicants, therefore, filed application under Order 7
Rule 11(d) of the CPC contending the suit barred by limitation.
The Trial Court by the impugned order rejected the application
based on order passed by the Apex Court in Cognizance for
extension of Limitation, In Re. Reported in (2022) 3 SCC
117.
6. I have heard learned advocates for the parties.
7. On perusal of the plaint, following factual scenario emerges:
(i) 20 August 2018 is the date of termination of development
agreement; (ii) 19 August 2021 as per Article 113 of the Limitation
Act ordinary limitation would have expired.
8. At this stage, it is necessary to consider paragraph 5 of the
judgment in the case of Cognizance for extension of Limitation, In
Re (supra). Paragraphs 5, 5.1. 5.2. 5.3 and 5.4 reads thus:
"5. Taking into consideration the arguments advanced by
learned counsel and the impact of the surge of the virus on
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public health and adversities faced by litigants in the
prevailing conditions, we deem it appropriate to dispose of
the M.A. No. 21 of 2022 with the following directions:
5.1. The order dated 23.03.2020 is restored and in
continuation of the subsequent orders dated 08.03.2021,
27.04.2021 and 23.09.2021, it is directed that the period
from 15.03.2020 till 28.02.2022 shall stand excluded for the
purposes of limitation as may be prescribed under any
general or special laws in respect of all judicial or quasi-
judicial proceedings.
5.2. Consequently, the balance period of limitation
remaining as on 03.10.2021, if any, shall become available
with effect from 01.03.2022.
5.3. In cases where the limitation would have expired
during the period between 15.03.2020 till 28.02.2022,
notwithstanding the actual balance period of limitation
remaining, all persons shall have a limitation period of 90
days from 01.03.2022. In the event the actual balance period
of limitation remaining, with effect from 01.03.2022 is
greater than 90 days, that longer period shall apply.
5.4 It is further clarified that the period from 15.03.2020
till 28.02.2022 shall also stand excluded in computing the
periods prescribed under Sections 23 (4) and 29A of the
Arbitration and Conciliation Act, 1996, Section 12A of the
Commercial Courts Act, 2015 and provisos (b) and (c) of
Section 138 of the Negotiable Instruments Act, 1881 and any
other laws, which prescribe period(s) of limitation for
instituting proceedings, outer limits (within which the court
or tribunal can condone delay) and termination of
proceedings."
9. Clause 5.3 of the said judgment is relevant for adjudication
of the issue involved. As noted above, in ordinary course,
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limitation to file suit for reliefs claimed would have expired on 19
August 2021. Therefore, first part of clause 5.3 will apply.
Therefore, all persons whose limitation expired between 15 March
2020 till 28 February 2022 are entitled to benefit of extension of
limitation for a period of 90 days. It is only in those cases where
balance period of limitation as on 1 March 2022 exceeds 90 days,
such persons shall be entitled to the benefit of longer period of
limitation.
10. According to the learned advocate for the plaintiff, the
balance period of limitation needs to be construed by keeping 15
March 2020 as the focal date. According to him, whatever was the
balance period of limitation as of 15 March 2020, he will be
entitled to the benefit of the same period after 1 March 2022. In
my opinion, said interpretation would run counter to the first part
of clause 5.3 of the judgment of the Apex Court. First part of
clause 5.3 would apply to all cases where period of limitation
would ordinarily expire between 15 March 2020 till 28 February
2022. Therefore, it was necessary for the plaintiff to have filed suit
within 90 days from 1 March 2022. The plaintiff has filed present
suit on 16 May 2023. Therefore, it is beyond period of 90 days
from 1 March 2022. Therefore, on prima facie reading of the
plaint, the suit is barred by limitation and the Trial Court ought to
have rejected the plaint.
11. On overall consideration of the aforesaid reasons, following
order is passed:
12. Rule is made absolute in terms of prayer clauses (b) and (c).
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13. Considering the issue involved, the effect of the present
order shall remain stayed for a period of six weeks from today.
14. The Trial Court shall not proceed with the suit for a period of
six weeks from today.
(AMIT BORKAR, J.)
