Gobind Ram vs Amar Singh & Ors.
2000 Latest Caselaw 420 Del

ORDER

K.S. Gupta, J.

1. Defendants have filed this application under Order VI, Rule 17 read with Section 151 CPC for incorporating the following prayer clause at the foot of para NO. 17 of the written statement:-

"A decree be passed against the Plaintiff whereby declaring that the alleged cancellation of power of attorney is wholly illegal and contrary to law. Be further ordered that the cancellation is of no effect and the original power of attorney executed by the Plaintiff in favour of the Defendant No. 3 is still valid and can be acted upon as per its construction."

Consequential amendments have also been sought in the title and para No. 16 of the written statement.

2. Plaintiff has contested the application by filing a reply. The two grounds on which the amendments sought are opposed are that the same is barred by limitation and that in suit No. 1505/84 which defendants 1 & 2 have filed against the plaintiff for specific performance of the agreement to sell dated 9th August, 1978, they have also prayed for a declaration that the cancellation of general power of attorney dated 9th August, 1978 in favour of defendant No. 3 is void. Said suit No. 1505/84 was consolidated with the present suit by the order dated 11th September, 1985.

3. Suit was filed by the plaintiff inter alia alleging that he is the sub essee of Plot No. 1030 (measuring 525 sq. yds.) in Block 'D' in the lay out plan of New Friends Co-operative House Building Society Ltd., and the owner of the superstructure constructed thereon. Under an agreement to sell dated 9th August, 1978, the plaintiff agreed to sell the said property to defendants 1 & 2 for a sum of Rs. 2,25,000/- and on receipt of Rs. 1,25,000/- out of that amount, the plaintiff delivered the possession of the property to said defendants on or about 9th August, 1978. In addition to execution of the said agreement to sell, the plaintiff also executed a general power of attorney on 9th August, 1978 in favour of defendant No. 3, nominee of defendants 1 & 2. It is alleged that defendants 1 & 2 committed defaults in performing their part of the obligation under the said agreement to sell and the same thus stood cancelled and said amount of Rs. 1,25,000/- paid by defendants 1 & 2 was forfeited by the plaintiff. Plaintiff also cancelled the said power of attorney dated 9th August, 1978 given in favour of defendant No. 3 at the instance of Defendants 1 & 2 by a deed of cancellation dated 2nd May, 1979. Defendants 1 & 2 have not delivered the possession of said property to the plaintiff despite requests made by the plaintiff. Reliefs claimed in the suit are for recovery of possession of the said property and a sum of Rs. 10,500/-. Direction has also been sought for conducting an enquiry as to the mesne profits in regard to the said property from 9th August, 1978 onwards.

4. In the joint written statement filed by defendants 1 to 3, it is not disputed that the plaintiff is a sub lessee of said plot No. 1030 and owner of the superstructure raised thereon; that under an agreement to sell dated 9th August, 1978, the plaintiff agreed to sell the said property to defendants 1 & 2 for a consideration of Rs. 2,25,000/-; that a power of attorney was executed by the plaintiff in favour of defendant No. 3 on 9th August, 1978 and that on receipt of Rs. 1,25,000/-, possession of the property was delivered by the plaintiff to Defendants 1 & 2 on or about 9th August, 1978, as alleged. It is further not denied by the defendants that the plaintiff cancelled the said power of attorney in favour of Defendant No. 3. It is, however, pleaded that Defendants 1 & 2 did not commit any default on the basis of which agreement to sell and the irrevocable power of attorney could be cancelled and amount of Rs. 1,25,000/- forfeited by the plaintiff. Cancellation of said irrevocable power of attorney is alleged to be in contravention of the terms and conditions of the said agreement to sell.

5. Faced with the objection of limitation taken in the reply to the amendment application, it was urged by Sh. Jagjit Singh appearing for the defendants that all the facts and the cause of action leading to the filing of the counter claim have already been stated in the written statement and the provisions of Section 3 of the Limitation Act, therefore, cannot come in the way of the defendants in seeking the proposed amendments. Reliance was placed on the decisions in East India Hotels Vs. Ob. Int. Hotel Employees, 1995 R.L.R. 149 and Nalini Dutta Vs. Naginder Sharma, 71 (1997) DLT 101. On the contrary relying on the decisions in M/s. International Building & Furnishing Company (Cal) Pvt. Ltd., Vs. Indian Oil Corporation Ltd., and Muni Lal Vs. The Oriental Fire & General Insurance Company Ltd. and Another, , it was contended by Sh. Ishwar Sahai, Sr. Advocate for the plaintiff that the proposed amendment in para No. 17 of the written statement which seeks to raise a counter claim cannot be legally allowed being barred by limitation under Section 3 of the Limitation Act. Admittedly, general power of attorney in question in favour of Defendant No. 3 was cancelled by the plaintiff on 2nd May, 1979 and the suit was thereafter filed on 18th April, 1980 and the present application seeking amendment was moved by the defendants on 28th October, 1996, Under Section 3(2)(b) of the Limitation Act, a counter claim is to be treated as a separate suit and is deemed to have been instituted on the date on which it is made in Court. Under Article 58, the eriod of limitation prescribed to obtain declaration other than those noted in Articles 56 & 57 is three years and the time from which the limitation begins to run is when the right to sue first accrues. Right to sue first accrued to defendants 1 & 2 when they learnt about the cancellation of general power of attorney by the plaintiff under the deed of cancellation dated 2nd May, 1979. At any rate, on receipt of the summons of the suit by Defendants 1 & 2 which was filed on 18th April, 1980, it was within their knowledge that general power of attorney had been cancelled under the said cancellation deed dated 2nd May, 1979 by the plaintiff. Evidently, the counter claim raised by the defendants is hopelessly barred by limitation. I am supported in this view of mine by the said decisions in M/s. International Building & Furnishing Company (Cal) Pvt. Ltd., and The Oriental Fire & General Insurance Company Ltd., & Anr., (supra). Decisions in East India Hotels and Nalini Dutta (supra) relied on behalf of the defendants have no applicability as the point of limitation was not considered in these cases. Application thus deserves to be dismissed.

Consequently, the application is dismissed.