[Cites 12, Cited by 0]
Bombay High Court
Victoria Enterprises Ltd vs Mohan S Lalwani on 9 March, 2026
2026:BHC-OS:6554
21-ial-7964-2025.doc
varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 7964 OF 2025
IN
COMMERCIAL SUIT NO. 39 OF 2015
Victoria Enterprises Limited .... Applicant
IN THE MATTER BETWEEN
Dnm Trustee Service Private Ltd ... Plaintiff
Vs
Victoria Enterprises Limited and ... Respondent
Ors
Mr. Chirag Mody a/w. Mr. Parag Kabadi, Ms. Drishti Gudhaka
i/b. DSK Legal for the Plaintiff.
Mr. Manish N. Jain a/w. Ms. Ritu G. Gehlot i/b. S.M. Jain
Associates for Applicant in IA/7964/25 and for Defendant
No.1 in COMS/39/15.
CORAM : GAURI GODSE, J.
DATED : 9th MARCH 2026
JUDGMENT:
1. This application is filed by defendant no.1 under Order
VII Rule 11(a) and (d) of the Civil Procedure Code, 1908
('CPC') for the rejection of the plaint. Learned counsel for
defendant no.1 submits that the suit is time-barred as the
plaintiff seeks specific performance of the contract dated
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
2026.03.13 Page no. 1 of 12
17:50:41 +0530
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2nd February 2008 by filing the suit on 29 th September 2015.
He submits that, under the agreement, possession was to be
handed over on or before 31 st March 2008. Hence, the suit
filed in 2015 is barred by limitation. He further points out that
the plaintiff has also prayed for damages. The prayer for
damages would be covered under Article 55 of the Limitation
Act. However, to join a cause of action, the plaintiff is required
to seek leave under Order II Rule 4 of the CPC, which has
not been sought. Hence, even the prayer for damages would
be barred by the limitation period.
2. Learned counsel for defendant no.1, further submits
that the agreement dated 2nd February 2008, was executed
by defendant no.1 in favour of defendant nos. 3 and 4. The
plaintiff claims to be the trustee of the property; hence, the
suit filed only by the sole trustee would not be maintainable.
The plaintiff has not pleaded the vesting of any right in favour
of the plaintiff to maintain the suit. Hence, there is no cause
of action available to the plaintiff to file the present suit.
Learned counsel for defendant no.1, therefore, submits that
neither the deed of trust annexed to the plaint nor the
partition deed relied upon by the plaintiff would be relevant for
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any cause of action being available for the plaintiff to maintain
the suit. Hence, the plaint is liable to be rejected at the
threshold on the ground that no cause of action is available to
the plaintiff and the suit is barred by limitation.
3. Learned counsel for the plaintiff submits that by a
registered agreement dated 2nd February 2008, the suit
property was conveyed to defendant nos. 3 and 4. By a
registered partition deed dated 15 th February 2013, defendant
nos. 3 and 5 included the suit property in the common
hotchpotch of the joint family property. Accordingly, the suit
property vested in the mother of defendant nos. 3 and 4, i.e.
Smt. Jamna S. Lawani. By the registered deed of rectification
dated 25th May 2014, the deed of execution of the partition
deed was rectified. Thereafter, the mother executed the deed
of discretionary trust on 24th March 2014, and all her
properties were settled in the name of Lalwani family trust for
the benefit of defendant nos. 2, 3 and 4. Defendant No. 2 is
the brother of defendant nos. 3 and 4.
4. Learned counsel for the plaintiff submits that defendant
no.1 had failed to comply with the terms and conditions of the
contract. Despite calling upon defendant no. 1 to hand over
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possession, no compliance was made. Hence, the notice
dated 5th March 2015 was issued by the defendant nos. 3 and
4. Thereafter, again by letter dated 10 April 2015, a reminder
was issued to defendant no.1 on behalf of defendant nos. 2
to 4, and the Lalwani family trust through its trustee, i.e. the
plaintiff. Since defendant no.1 failed to comply with the
obligation, the present suit was filed. Learned counsel for the
plaintiff relies upon the relevant averments in the plaint
paragraph nos. 5 to 9 regarding the plaintiff's right to file the
suit in view of the deed of trust executed by the mother of
defendant nos. 2, 3 and 4. He also relies upon the relevant
averments regarding calling upon defendant no. 1 to comply
with the terms and conditions of the registered agreement in
favour of defendant nos. 3 and 4.
5. Learned counsel for the plaintiff submits that at the
stage of hearing of the interim application, a statement was
made on behalf of defendant no.1, which is recorded in an
order dated 10th February 2020, passed in the Notice of
Motion No. 7 of 2015. Defendant No. 1 had made a
statement that he is ready and willing to hand over the
possession, i.e. Unit Nos. 503 and 504. The Notice of Motion
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was accordingly listed for compliance. Thereafter, by order
dated 9th June 2022, the plaintiff's application for amendment
was allowed on the ground that the possession of the units
was handed over. Accordingly, the plaintiff amended the suit
and deleted the prayers seeking possession of the two units
as prayed in the original prayer clause (b). By way of
amendment, the plaintiff added a prayer for a declaration that
defendant no.1 was bound to specifically perform all the
terms and conditions of the agreement dated 2 nd February
2008, by identifying and demarking the parking space. By
way of amendment, the plaintiff also prayed for a declaration
that defendant no.1 was bound and liable to pay
compensation. This amendment is carried out pursuant to the
order dated 9th June 2022. Learned counsel for the plaintiff
submits that even thereafter, another application was filed
regarding the parking space and completion of amenities as
per the original agreement. He relies upon the order dated 6 th
March 2024, regarding the statement on behalf of defendant
no. 1 that possession of 5 car spaces would be handed over
to the plaintiff within one week. Thereafter, time was
extended to comply with the statement. Learned counsel for
the plaintiff submits that in view of the various orders passed
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by this court, the grievance regarding the parking space has
also been worked out, and grievances regarding the
obligations on the amenities still are unresolved.
6. Learned counsel for the plaintiff, therefore, submits that
the application for rejection of the plaint is filed only with an
intention to protract further proceedings in the suit. He
submits that in view of the deed of partition and the deed of
trust, the plaintiff is entitled to maintain the suit as
contemplated under Order XXXI Rule 1 of the CPC. In view
of the specific pleadings in the plaint, the plaintiff would be
entitled to lead evidence to support the cause of action as
pleaded in the plaint and also support the contentions
regarding the suit being within limitation in view of Section 22
of the Limitation Act, as the prayers in the suit are based on
the continuing breach of the obligations. He therefore submits
that the suit raises triable issues and the plaint cannot be
rejected at the threshold.
7. Learned counsel for the plaintiff relies upon the well-
settled legal principles by the Hon'ble Apex Court in
Samruddhi Co-operative Housing Society Vs Mumbai
Mahalaxmi Construction Private Limited 1. He submits that the
1 (2022) 4 SCC 103
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Hon'ble Apex Court held that in view of continuing wrong, the
plaintiff would be entitled to maintain the suit for seeking relief
on the ground that there is continuing breach of the terms of
contract and thus, all the plaintiffs would be entitled to rely
upon Section 22 of the Limitation Act to support the cause of
action for maintaining the suit within limitation.
8. I have carefully perused the pleadings and the
supporting documents relied upon by the plaintiff. The facts
regarding execution of the agreement as pleaded in the plaint
and referred to the aforesaid paragraphs are not disputed.
Learned counsel for defendant no.1 has relied upon Order II
Rule 4 of the CPC to support his submissions that the suit
would be barred by limitation in view of Articles 54 and 58 of
the Limitation Act, as the prayers in the suit are based on
different causes of action. Learned counsel for defendant
no.1 has further pointed out that handing over possession
was without prejudice to the rights and contentions of
defendant no.1. Hence, defendant no.1 is entitled to pray for
rejection of the plaint at the threshold. He submitted that the
handing over of the possession would not change the cause
of action.
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9. However, in my opinion, so far as the plaintiff's right to
maintain the suit is concerned, it is supported by the
documents of deed of partition and the deed of creation of a
discretionary trust by the mother of defendant nos. 2 to 4. All
these facts are substantially pleaded in the plaint and also
supported by the documents. I have perused the documents.
In view of the execution of the documents and the creation of
trust, the plaintiff would be entitled to maintain the suit as
contemplated under Order XXXI Rule 1 of the CPC. Hence,
there is no substance in the objection raised that there is no
cause of action available for the plaintiff to maintain the suit.
The allegation of a different cause of action by referring to
Order II Rule 4 of the CPC cannot be a ground to reject the
plaint at the threshold. An objection to the joinder of the
cause of action would raise a triable issue, and such
objection is no ground to hold that the plaint does not
disclose any cause of action warranting rejection of the plaint
under Order VII Rule 11(a) of the CPC. The plaintiff would be
entitled to lead evidence in support of the cause of action and
entitlement to seek the relief as prayed in the plaint.
10. So far as the ground of limitation is concerned, the
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plaintiff has pleaded that defendant no. 1 has not complied
with the terms and conditions of the agreement dated 2 nd
February 2008, despite various reminders. According to the
plaintiff, there are various obligations to be complied with by
defendant no. 1 under the terms and conditions of the said
agreement, which is executed under the Maharashtra
Ownership of Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act 1963. The
plaintiff has accordingly pleaded that the entire consideration
amount of Rs. 5,51,00,000/- is already paid; however, though
agreed to handover possession on or before 31 st March 2008,
the obligations under the agreement are not complied with by
defendant no. 1. Hence, since March 2008, defendant no. 1
was called upon to comply with the obligations; however,
defendant no. 1 had requested time for resolving technical
problems regarding permissions from corporation. Particulars
regarding the meetings held and the notices dated 5 th March
2015 and 10th April 2015 are pleaded. It is further pleaded
that it was only in August 2015 that defendant no. 1 refused
to comply with the obligations. Hence, the suit was filed in
September 2015. The failure on the part of defendant no. 1 is
pleaded as the cause of action for filing the suit.
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11. Thus, the legal principles settled by the Hon'ble Apex
Court in Samruddhi Co-operative Housing Society squarely
apply to the present case. It is held that non-compliance with
the obligations under Sections 3 and 6 of MOFA would
amount to continuing breach, and thus, for computing the
period of limitation, a fresh period of limitation begins to run at
every moment of time during which the breach continues.
Hence, the plaintiff is entitled to lead evidence to prove that
the suit is within the limitation.
12. I have perused the orders passed by this court in the
interim applications. The statement on behalf of defendant
no.1, recorded in order dated 10th February 2020, is for
handing over possession of Unit Nos. 503 and 504. The said
statement is unconditional. The subsequent statements
regarding the dispute on the parking space were recorded
without prejudice to the rights and contentions of defendant
no.1. Based on the subsequent events of handing over
possession of two units, the plaintiff has amended the suit
and prayed for reliefs regarding the parking space and for
further reliefs for common amenities, occupancy certificate
and damages. Thus, the unamended plaint as well as the
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amended plaint provide for a cause of action for seeking the
reliefs prayed in the suit. The plaintiff would therefore be
entitled to lead evidence to support the contentions in the
plaint. The suit raises triable issues and thus cannot be
rejected at the threshold.
13. The legal principles regarding the rejection of a plaint
under Order VII Rule 11 of the CPC are no longer res integra.
The Hon'ble Apex Court in the decision of Dahiben v.
Arvindbhai Kalyanji Bhanusali2, held that the power conferred
on the court to terminate a civil action is a drastic one, and
the conditions enumerated in Order VII Rule 11 are required
to be strictly adhered to.
14. Learned counsel for the plaintiff is right in pointing out
that filing an application under Order VII Rule 11 of the CPC
at this stage is only with an intention to protract the hearing of
the suit. The object of the Commercial Courts Act is the
speedy disposal of the suit. In view of Order XV-A of the
CPC, which provides for a case management hearing for the
conclusion of the trial within six months after the dates are
fixed for concluding the trial. The suit is at the stage of the
decision on the plaintiff's application for summary judgment
2 (2020) 7 SCC 366
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under Order XIII-A of the CPC. Defendant No. 1's attempt to
file such an application is obvious for the purpose of delaying
the hearing of the suit. Hence, defendant no.1 would be liable
to pay costs to the plaintiff for delaying further stages of the
trial.
15. The Interim Application is rejected.
16. Defendant No. 1 shall pay the cost of Rs. 50,000/- to
the plaintiff. Cost shall be paid within six weeks from today.
(GAURI GODSE, J.)
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