Shiv Kumar Gupta vs Kumkum Gupta And Ors.
2007 Latest Caselaw 432 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The application seeking condensation of delay in filing the written statement is not opposed by learned Counsel for the plaintiff and is accordingly allowed.

I.A. No. 8407 of 2006 (Order VII, Rule 11. CPC) in C.S. (OS) No. 1137 of 2005:

2. The plaintiff has filed a suit for specific performance of the Agreement to Sell dated 13.4.1992 in respect of the immovable property of land measuring 1960 sq.yds. out of the total area of 2390 sq.yds. forming part of Khasra No. 577 situated in the revenue estate of Village Sultanpur Majra, New Delhi. The rate agreed upon as per the Agreement to Sell was Rs. 2,700/- per sq. yd. and the total consideration was, thus, Rs. 52,92,000/- and the earnest money of Rs. 6,00,0G0/- was paid in cash on 6.4.1992 prior to execution of the Agreement to Sell. It is stated that on 20.11.1992, defendant No. 1 sold and transferred a portion of the land agreed to be sold measuring 737.7 sq. yds. It is further alleged that defendant No. 1 received a sum of Rs. 24,00,000/- in cash from the plaintiff on 15.1.1993 vide receipt of the said date towards part performance of the Agreement to Sell dated 13.4.1992. This receipt is disputed by the defendants.

3. The plaintiff has pleaded that he has been ready and willing to perform his obligations in respect of the remaining portion of the land measuring 1225.3 sq. yds. under the said Agreement to Sell and pay the balance consideration at the time of execution of the sale deed. Despite request made by the plaintiff in April, 1993 personally, the defendants evaded the same. The plaintiff claims to have visited the house of the defendants when more time was sought by the defendants and a similar situation continued between 1995 and 1999. The plaint states that defendant No. 1 demanded a sum of Rs. 10,00,000/-later on, which was also paid at her residence on 8.1.2000, but no receipt was executed for the same. This amount is stated to have been paid in cash. Since the sale deed was not executed and defendant No. 1 threatened to sell the property, a notice was sent on 25.6.2005 though Counsel and public notices were also published. The suit was finally filed on 6.8.2005.

4. The present application has been filed by defendant Nos. 5 to 8 seeking rejection of the plaint on the ground of bar of limitation. 5. In order to appreciate the controversy, it is necessary to reproduce the relevant provision, which reads as under:

11. Rejection of plaint.- The plaint shall be rejected in the following cases:

(d) where the suit appears from the statement in the plaint to be barred by any law;

6. It is trite to say that for consideration of such an application, only the plaint and the documents filed with the plaint have to be perused. It is in this context that the averments made in the plaint have been set out hereinabove. The cause of action arisen in para 18, which reads as under:

18. That the cause of action for filing the suit has arisen to the plaintiff as above stated. It specifically arose on 13.4.1992 when the agreement to sell was executed between the plaintiff and the defendant No. 1 and a sum of Rs. 6,00,000/- (Rupees six lacs only) as part consideration in cash vide written receipt was acknowledged to have been received by defendant No. 1. It also arose on 15.1.1995 (wrongly noted, the date should actually be 15.1.1993) when defendant No. 1 further received a sum of Rs. 24,00,000/- (Rupees twenty four lacs only) in cash vide written receipt as part sale consideration. It further arose on 8.1.2000 when defendant No. 1 further received a sum of Rs. 10,00,000/- (Rupees ten lacs only) in cash part sale consideration. It further arose in the second week of June, 2005 when plaintiff asked the defendant No. 1 to execute the necessary documents before the Sub-registrar, she expressed her intention to resile from the said agreement to sell entered in to by her with the plaintiff and defendants 2 to 4 and refused to perform her part of the obligations. It further arose when the defendant No. 1 was served the plaintiff's Advocate's notice of demand dated 25.6.2005 and public notices published on 2.7.2005 in Punjab Kesari and on 5.7.2005 in Statesman, but defendant No. 1 failed and neglected to discharge the obligations under the agreement to sell. It further arose on 31.7.2005 when the plaintiff came to know that the defendant No. 1 is making hectic efforts to sell and transfer and/or otherwise dispose of the remaining portion of land to third party (ies) for higher price and deliver the possession thereof. The cause of action is continuing and subsisting.

7. A perusal of the averments made in the plaint and the cause of action arisen shows that undisputedly the possession is not with the plaintiff. The Agreement to Sell was executed on 13.4.1992. The last payment as per the plaint was made on 8.1.2000, though there is no receipt for the same. Even if this date is taken as the last date for cause of action, the plaint filed in August, 2005 would be barred by time. The plaintiff seeks to bring the suit within limitation on the basis of a legal notice sent in the year 2005. This certainly, in my considered view, cannot extend the time-period for filing of the suit which is undisputedly three years from the date of the cause of action. Even if the last date when payment was made is taken into account, the suit is barred by time.

8. In view of the aforesaid, the application filed by the defendants is to be accepted and the suit is liable to be dismissed as being barred by time.

The application is accordingly allowed.

C.S. (OS) No. 1137/2005.

The suit is dismissed as barred by time and the plaint accordingly rejected leaving the parties to bear their own costs.