Praveen Kumar And Anr. vs Sunder Singh Makkar
2007 Latest Caselaw 1863 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The plaintiffs have filed the present suit for specific performance of the agreement dated 10.03.2002 in respect of shop Nos. 4 and 5, in the property No. 720-A (old) and IX/7018 (new), situated at Ashok Gali, Gandhi Nagar, Delhi consisting of two shops on the ground floor, one hall on the first floor, one room set on the second floor with all terrace rights. The aforesaid agreement deed records that the total sale consideration agreed upon was Rs. 70,51,000/-. Vacant possession was required to be handed over of the first floor to top floor as per the agreement deed but the ground ground floor being in the possession of the tenant was to be handed over to the plaintiffs with the tenancy rights. Rs. 2 lakh had been paid as earnest money under the agreement and the balance had to be paid at the time of completion of purchase. The agreement deed provides for the purchase to be completed on 30.07.2002 subject to the defendant making out a good martketable title.

2. It is the case of the plaintiffs that in furtherance to the aforesaid agreement, plaintiff No. 1 had paid to the defendant a further sum of Rs. 1,00,000/- on 12.07.2002, which was encashed. This is, however, disputed by the defendant who claims that the agreement deed was executed only between the defendant and plaintiff No. 2 and the amount of Rs. 1,00,000/- paid by plaintiff No. 1 was for purchase of certain goods. It may be noticed that the plaintiffs rely on a General Power of Attorney executed by plaintiff No. 2 in favor of plaintiff No. 1 on 30.07.2005.

3. One of the objections raised in the written statement is that the suit is barred by time. It is further stated that the property has been sold to Smt. Arvinder Kaur Ahuja, divorcee of Sardar A.S. Ahuja, who further let out the property to M/s Manpreet Industries and Lovely Furniture the ones presently in the possession of the property.

4. The matter has been placed before the Court at the stage when the admission/denial of documents had to be carried out in view of the submission of learned Counsel for the defendant that the plaint is ex facie barred by time and thus is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('the said Code' for short). On the other hand, learned Counsel for the plaintiffs has been disputing this position and has further sought details and particulars by which the defendant has sold the property so as to implead the subsequent purchasers/tenants.

5. Learned Counsel for the parties have been heard. In order to appreciate the submissions of learned Counsel for the parties, relevant provision of Order 7 Rule 11 of the said Code is re-produced hereunder:

Rejection of plaint? The plaint shall be rejected in the following cases:

a) ...

b) ...

c) ...

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 the purposes of rejection of a plaint, it is only the averments made in the plaint/documents filed with the plaint or undisputed documents which can be relied upon. The claim of learned Counsel for the defendant is based on a fact that the averment in the plaint states that undisputedly the agreement deed is 10.03.2002, date of performance is stipulated as 30.07.2002 and the suit is filed on 30.07.2005.

7. These facts are not even disputed by learned Counsel for the plaintiffs. It is thus the submission of the learned Counsel for the defendant that the last date for filing a suit was 29.05.2005 since the last date of performance was 30.07.2002.

8. Learned Counsel for the plaintiffs has, however, disputed the aforesaid proposition and submits that date of 30.07.2005 has to be excluded and the limitation would commence from the next date i.e. 31.07.2002. It is thus pleaded that the limitation would expire on 30.07.2005 and thus the suit filed on that date would be within time.

9. In support of his contention, learned Counsel for the plaintiffs has referred to the Schedule to the Limitation Act, 1963 (hereafter the said Act). Article 54 of the Schedule dealing with a suit for specific performance and falling in part II of the said Schedule reads as under:

  S.     Description of Suit     Period of Limitation   Time from which period
No.                                                   begins to run
54   For specific performance       Three years       The date fixed for the
     of a contract                                    performance, or, if no
                                                      such  date  is  fixed, 
                                                      when the plaintiff has
                                                      notice that performance
                                                      is refused
 

10.The aforesaid would show that a suit has be filed within 3 years from the date fixed for performance. learned Counsel next refers to the provision of Section 12(1) of the said Act, which reads as under:
  

12. Exclusion of time in legal proceedings:
  

1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
 

11. Learned Counsel thus submits that the aforesaid provision makes it clear that in computing the period of limitation for any suit, the date from which such period is to be reckoned is to be excluded. It is thus submitted that 30.07.2002 would have to be excluded and thus the suit is within time.

12. Learned Counsel for the plaintiffs submits that the aforesaid issue is not even res integra in view of the pronouncements of this Court. learned Counsel has referred to the Division Bench judgment of this Court in Canara Bank v. Satish Vaid and Co.(P) Ltd and Ors. 134 (2006) Delhi Law Times 29 (DB) where a similar situation arose. The matter pertained to a suit for recovery filed by the Bank where last acknowledgement had been executed by the borrower on 20.01.1996 which would have given the plaintiff-Company three years further as lease of life for filing a suit. It was held that the period of three years to be reckoned should be excluding the date on which the acknowledgement was executed in view of the provisions of Section 12(1) of the said Act and thus had to be reckoned from 21.01.1996 and would end on 21.01.1999.

13. Learned Counsel has also drawn the attention of this Court to Section 9 of. The General Clauses Act, 1897 which reads as under:

9. Commencement and termination of time?

1) In any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from', and, for the purpose of including the last in a series of days or any other period of time, to use the word 'to'.

2) This Section applies to all {Central Acts} made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.

14. Learned Counsel thus submits that as per the the aforesaid Clause also the same intent is apparent where the first in a series of days has to be excluded on the expression being used 'from'.

15. Lastly learned Counsel for the plaintiffs has referred to the judgment of the learned Single Judge of this Court in Frank Anthony Public School v. Smt. Amar Kaur 1984 (6) DRJ 47 where the dispute related to the filing of an application for leave to contest under the provisions of Section 25B and 14(1)(e) of the Delhi Rent Control Act, 1958. The period of fifteen days is prescribed for filing such an application. It is similar to provisions of Order 37 of the said Code. The meaning of the expression 'within fifteen days from the service hereof' in case of service of such a petition came up for interpretation. It would be useful to refer to relevant paragraphs in this behalf:

26. The expression 'day' has been understood in different ways by different nations in different times. Lord Coke said:

The Jewes, the Chaldeans, and Babylonians, begin the day at the rising of the sun : The Athenians at the fall; the Umbri in Italy begin at midday : The Egyptians and Romanes from midnight; and so doth the law of England in many cases?. The English day begins as soon as the clock begins to strike twelve p.m. of the preceding day. Williams v. Nash 28 L.J. Ch. 886.

In Halsbury's Laws of England, third edition, Vol. 37, P.84, it is said:

The term 'day' is, like the terms 'year' and 'month' used in more senses than one. A day is strictly the period of time which begins with one midnight and ends with the next. It may also denote any period of twenty four hours, and again it may denote the period of time between sunrise and sunset.

27. Counsel for the landlady argues that time ought to be counted from 12.05.1982 and the period of fifteen days expired on 26.05.1982. In any event, he says the leave application made on 27.05.1982 was barred by time. I have no hesitation in rejecting this argument. The question is what is meant by the phrase 'within fifteen days from the service hereof'. In my opinion, on a proper reading of the third schedule, the word 'day' should be read as meaning a 'calender day'. I propose to found my decision R.V. Turner (1910) 1 K.B. 346 (CCA) and Chambers v. Smith (1843) 152 E.R. 1085 and to decide that the phrase means fifteen clear days exclusive of the day of service. The words 'within fifteen days of the service hereof' in the form of summons prescribed in the third schedule must be construed as meaning fifteen consecutive periods of twenty four hours after the service of the summons.

28. It is well known maxim that the law disregards fractions. By the Calender the day commenced at midnight, and most nations reckon in the same manner. The English do it in this manner. We too have adopted the same. In the space of a day all the twenty four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes. If anything is to be done within a certain time of, from, or after the doing or occurrence of something else, the day on which the first act or occurrence takes place is to be excluded from computation. Williams v. Burgess (1840) 113 E.R. 955 unless the contrary appears from the context. Hare v. Gocher (1962) 2 Q.B. 641. The ordinary rule is that where a certain number of days are specified they are to be reckoned exclusive of one of the days and inclusive of the other. R.V. Turner, supra p. 359

29. Fraction of a day has not to be counted. So I would disregard 12.05.1982, the day on which the ordinary summons were delivered to the Principal. Fifteen days will commence from 13.05.1982. Counting in this way the application was made on the last day, i.e. 27.05.1982. The application for leave to appear and contest is within time. I, therefore, hold that the tenant was entitled to count fifteen days from the receipt of the second summons on 12.05.1982.

16. In view of the legal position reflected in the aforesaid two judgments and the provisions referred to by learned Counsel for the plaintiffs, there is little doubt that the present suit would fall within the period of limitation. Section 12(1) of the said Act itself specifies that for computation of period of limitation the day from which the said period is to be reckoned should be excluded. The date of performance was 30.07.2002 and thus that date would be the date of reckoning and has to be excluded. The limitation would thus commence on 31.07.2002 and would end on 30.07.2005. The rationale of the aforesaid has also been succinctly set out in Frank Anthony Public School v. Smt. Amar Kaur's case (supra). The expression 'day' is to imply a 'calender day'. It was thus held that clear 15 days notice was required which in the present case would be clear 3 years. The date for service which can take place in any part of the day would result in a fraction being included and since fraction of a day is not to be included, the limitation would begin from the next date. This is so because the Indian system has adopted the English Calender. The same intent is reflected in Section 9 of the General Clauses Act, 1897.

17. I am thus of the considered view that the plaint is not liable to be rejected under Order 7 Rule 11 of the said Code being barred by time.

18. The next question which arises for consideration is the claim of the plaintiff seeking disclosure from the defendant of the person to whom the property has been sold, the particulars of the transaction and the particulars of the person in possession.

19. learned Counsel for the defendant has fairly accepted in Court that the purchaser is the daughter of the defendant. It is further stated that the defendant is a partner in the firms who are in possession. I deem it appropriate to direct the defendant to file an affidavit disclosing the particulars of the partnership firm and the sale documents executed. Copies of the sale documents and the partnership deed should also be placed on record including the back of the stamp paper if used. Needful be done within one week from today.

20. The parties to file their original documents within four weeks.

21. List before the Joint Registrar for admission/denial of documents and for directions regarding further proceedings on 28.11.2007.