Anil Kumar & Anr. vs Jawahar Singh
2010 Latest Caselaw 3611 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CS(OS) NO. 807/2010 & IA Nos. 5477-6578/2010


                                             Date of Decision : 05.08.2010

Anil Kumar & Anr.                                    ......       Plaintiffs
                                 Through:     Mr. Ravi Chowdari, Adv. for
                                              the plaintiffs.

                                     Versus

Jawahar Singh                                         ...... Defendant
                                 Through:     None


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                           YES
2.     To be referred to the Reporter or not ?                NO
3.     Whether the judgment should be reported
       in the Digest ?                                        NO

V.K. SHALI, J.

1. This is a suit which has been filed by the plaintiffs for specific

performance and permanent injunction. The matter had come up

for hearing for the first time on 28.04.2010 and as the agreement in

respect of which the specific performance was sought pertained to

the year 1989 accordingly arguments were heard with regard to the

maintainability of the suit itself.

2. Before proceeding further in the matter it will be pertinent here to

mention that the facts which has been averred in the plaint are that

the plaintiffs had entered into an agreement to purchase on

30.11.1989 from the defendant Jawahar Singh a plot of land in

respect of which a recommendation was purportedly made by the

Land & Building Department, Government of NCT of Delhi to Delhi

Development Authority on account of acquisition of land of the father

of the defendant. The details of Award number, village and the

details of letter by virtue of which recommendation was made to DDA

including the date, file number etc. have been mentioned in the

agreement to sell. It is mentioned in the agreement to sell that the

land is yet to be allotted. In para 4 of the agreement, it was

mentioned that the defendant has assured the plaintiffs that the land

is free from all encumbrances, sale, mortgage, gift, transfer litigation,

injunction etc. The defendant is purported to have received the total

sale consideration of Rs.32,00,000/- for the alleged sale agreement

being signed by him. The receipt in this regard is also placed on

record. In addition to this, the defendant is also purported to have

executed a power of attorney. It is alleged that on the basis of the

said recommendation of the Land & Building Department, Govt. NCT

of Delhi to the DDA, the latter held a draw of lots and issued a

allotment letter in respect of 400 sq. yards plot of land to the

defendant. It is alleged that the draw of allotment was held on

08.02.2008 and after the allotment the plaintiffs requested the

defendant to transfer the said plot of land to them. The defendant

did not respond. This necessitated sending of a legal notice dated

30.04.2008 by the counsel for the plaintiffs to the defendant for

perfecting his title. Since no reply was received, the plaintiffs have

filed the present suit for specific performance against the defendant

or in alternatively to recover the said amount of Rs.32,00,000/- along

with the interest from the defendant.

3. Prima facie as the agreement was entered into in the year 1989 the

Court was of the view that this may be barred by limitation and

accordingly heard the arguments.

4. The learned counsel for the plaintiffs has contended that the suit is

within limitation on account of the fact that according to Article 54,

Schedule-I of the Limitation Act, the specific performance of a

contract to sell of the movable property is to be executed within the

period specified in the agreement or in the alternative the period is to

be reckoned from the date when there is a refusal on the part of the

defendant to perform his part of the obligation.

5. In the instant case, the learned counsel for the plaintiffs has

contended that the legal notice which was sent to the defendant was

dated 30.04.2008 and since the defendant did not come forward to

perfect the title, the plaintiffs in pursuance to the said legal notice

filed the suit. The period of limitation of three years is to be

reckoned from the date of notice at best and not from 1989, and

accordingly, the suit is within limitation.

6. There seems to be prima facie some merit in the submissions of the

learned counsel for the plaintiffs that this may be one of the views

which can be taken that the period of limitation is to be reckoned

from the date of legal notice at best though the agreement might have

been entered into in 1989. There is no specific time limit laid down

in the agreement to perform the contract within a specified time,

therefore, this could be one of the interpretation adopted. The

question whether the period of limitation is to be reckoned from 1989

or not cannot be decided against the plaintiff at this stage when there

is no time limit prescribed in the agreement. This can be considered

only after the summons are issued to the defendant and parties have

adduced the evidence in this regard.

7. Secondly, the question which would arise for consideration is that

the recommendation which is made by the Land & Building

Department, Government of NCT of Delhi is only at best a

recommendation as a measure of rehabilitation. The DDA also

apparently allots these plots of land to the oustees of the agricultural

land as a rehabilitative measure and there is a condition that these

lands cannot be transacted. If that be so that the land could not be

transacted the question would arise whether the defendant could

have transacted, the said recommendation much less the plot of

land. Obviously in order to consider the prayer of the plaintiffs for

specific performance would entail the Land & Building Department,

Government of NCT of Delhi as well as the DDA to be made as a

necessary and a proper party in order to have their response to the

suit also.

8. The third point which would arise for consideration is that even

though the defendant may not have the allotment of land or a definite

piece of land registered in his favour, can such a recommendation be

treated as resulting in the contingent contract which is permissible

under Section 32 of the Contract Act. In order to answer all these

queries and to consider the prayer of the plaintiffs, I feel that the

Land & Building Department, Government of NCT of Delhi through

its Secretary and the DDA through its Vice Chairman should be

impleaded as defendant nos. 2 and 3 in the suit.

9. Keeping in view the aforesaid facts, I am prima facie of the view that

at this stage that limitation cannot be a ground for rejection of the

plaint as being barred under Order VII Rule 11(d) CPC or not

maintainable at this stage. The matter would require further

examination.

10. Let the plaintiffs file the amended memo of parties and after filing of

amended memo of parties, issue summons in the suit and notice in

the application to all the three defendants by ordinary post/speed

post/registered AD/courier and Dasti as well, returnable for

20.09.2010 before the learned Joint Registrar.

V.K. SHALI, J.

August 05, 2010 KP