V.K. Nayar vs Mrs. Usha Puri & Ors.
2014 Latest Caselaw 201 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+               C.S. (OS) No.1884 of 2009 & I.A. No.12903/2009

                                      Decided on : 10th January, 2014

V.K. NAYAR                                            ...... Plaintiff
                         Through:   Mr. Vaibhav Sharma, Advocate.

                           Versus

MRS. USHA PURI & ORS.                                 ...... Defendants
                         Through:   Mr. Dhiraj Sachdeva, Advocate for D-4.

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

V.K. SHALI, J. (ORAL)

1. Vide order dated 5.4.2013, my learned predecessor had framed the

following preliminary issue :-

"Whether the suit is liable to be rejected being barred by limitation? (OPD)"

2. I have heard the learned counsel for the plaintiff as well as the

learned counsel for the defendants. Before dealing with the contentions

raised by the learned counsel for the plaintiff and the learned counsel for

the defendant, it would be pertinent to give briefly the facts of the case.

3. The plaintiff filed a suit for specific performance of the

memorandum of understanding dated 8.4.1989 and for consequential

relief of declaration and mandatory injunction. The case which was set

up in the plaint was that defendant Nos.1 to 3 are the married sisters of

the plaintiff while as defendant No.4 is the uncle of the plaintiff. The

plaintiff's mother late Smt. Padmawati Nayar had expired on 23.1.2005 at

New Delhi leaving behind the Will dated 26.5.1987 in favour of the

plaintiff and to the exclusion of the plaintiff's three sisters, namely,

defendant Nos.1 to 3 from the partnership firm, M/s. Haryana Rang

Udyog. It was alleged that in terms of the said Will, the plaintiff was

entitled to 60 per cent shares of M/s. Haryana Rang Udyog while as the

remaining 40 per cent were owned by his uncle, defendant No.4 but the

defendant No.4 had purportedly executed the aforesaid 60 per cent shares

in the name of defendant Nos.1 to 3. The plaintiff has accordingly sought

a declaration that Will dated 26.5.1987 made by his mother late

Smt. Padmawati Nayar was the genuine Will and the same has to be

given effect to. The plaintiff had also stated that memorandum of

understanding dated 8.4.1989 was executed in favour of the plaintiff and

against the defendants and that be specifically enforced. A mandatory

injunction with a consequential relief was also sought thereby directing

the defendants to transfer the entire share of the firm M/s.

Haryana Rang Udyog in favour of the plaintiff and against the

defendants.

4. The learned counsel for the defendant had raised an objection with

regard to the suit being barred by time as the plaintiff had sought specific

performance of the memorandum of understanding purported to have

been executed on 8.4.1989 and since the other relief of mandatory

injunction was consequential to the same, it was contended that the suit is

liable to be rejected as under Order VII Rule 11 (d) CPC. A similar plea

was taken with regard to declaration of the Will dated 26.5.1987.

5. As against this, the learned counsel for the plaintiff has contended

that the suit of the plaintiff seeking specific performance of the

memorandum of understanding dated 8.4.1989 is within time because the

right to sue in favour of the plaintiff for specific performance of the

agreement arose only in the year 2009 when on 18.6.2009, the plaintiff

had sent a notice to defendant Nos.1 to 3 for implementation of

memorandum of understanding and the deed of settlement dated 8.4.1989

and if the period of limitation is three years, in terms of Article 54 of

Schedule II of the Limitation Act, 1963, the suit of the plaintiff is within

time. It was also contended that the plaintiff has also sought a declaration

with regard to the Will which is also linked along with the specific

performance as the factum of Will having been executed by the late Smt.

Padmawati Nayar is not in dispute.

6. I have carefully considered the submission made by the learned

counsel for the plaintiff. I am of the view that the suit is barred by

limitation. In this regard, it is not in dispute that according to Article 54,

Schedule II of the Limitation Act, 1963 a suit for specific performance

has to be filed within a period of three years from the date fixed for

performance or if no such date is fixed, when the plaintiff has the

knowledge of refusal of performance. Similarly, Article 137 of the

Limitation Act also lays down that any application for which no period of

limitation is provided elsewhere in this act, there shall be a period of three

years for filing the suit.

7. For determination of the suit of the plaintiff being within

limitation, what is important to be seen is the averment made by the

plaintiff himself in the cause of action clause which reads as under :-

"4. The cause of action for filing the present suit firstly arose on 8.4.1989, when the Memorandum of Understanding was executed between the plaintiff and defendant Nos.1 to 3. The cause of action secondly arose when the plaintiff had verbally asked the defendant Nos.1, 2 and 3 to act upon and implement the MOU dated 8.4.1989 and had requested the defendant No.4 on several occasions to transfer the entire share of the firm, M/s. Haryana Rang Udyog in the name of plaintiff. The cause of action thirdly arose when the defendant Nos.1 and 2 filed the probate petition in the Hon'ble High Court in November, 2006. The cause of action fourthly rose when the genuineness and authenticity of the aforesaid MOU dated 8.4.1989 was admitted by the defendant Nos.1 and 2 in the probate case filed by the defendant Nos.1 and 2. The cause of action fifthly arose when the plaintiff had sent a notice dated 18.6.2009 to the defendant Nos.1 to 3 for the implementation of the MOU and Deed of Settlement dated 8.4.1989. The cause of action further arose when the defendant nos.1 to 3 denied to implement upon the MOU and Deed of settlement dated 8.4.1989. The cause of action for filing the present suit further arose when the defendant No.4 allegedly and on its own and with mala fide intentions acted upon the alleged Will dated 12.08.1999 and transferred the 60 % share of late Smt. Padmawati Nayar in M/s. Haryana Rang Udyog to the defendant Nos.1, 2 and 3. The cause of action for filing the present suit is still subsisting and continuing till date."

8. A perusal of the aforesaid paragraph would show that it is

plaintiff's own case that the cause of action to file the present suit arose to

the plaintiff on 8.4.1989 when the memorandum of understanding was

signed when the plaintiff had asked the defendants to act and implement

the same memorandum of settlement. The cause of action to file the suit

arises only once and not more than once unless and until it is a continuing

cause of action in a given situation. In the instant case, it can by no

stretch of imagination be said that the plaintiff has a continuing cause of

action as he is seeking specific enforcement of the memorandum of

settlement dated 8.4.1989 and he himself avers that not only the

settlement is recorded on 8.4.1989 but even the defendants were asked to

implement the same on the said date. Having said so, the period of

limitation starts ticking with effect from 9.4.1989 because the date when

the event has taken place has to be excluded. The suit for specific

performance has to be filed within a period of three years if time is

prescribed and if no time is prescribed then within three years from the

date when the plaintiff has learnt about the refusal on the part of the

defendant to specifically comply with the contract. In the instant case,

the cause of action having arisen on 9.4.1989 because not only the

memorandum of settlement is signed on 8.4.1989 but even a demand is

made by the plaintiff to have the settlement implemented on the same

date. Therefore, if the period of three years is to be reckoned from

9.4.1989 it comes to an end on 8.4.1992. Even if the benefit of refusal is

given to the plaintiff even then as the plaintiff himself has averred in the

plaint at para 4 that he requested for implementation of the memorandum

of settlement on 8.4.1989 itself, he at best could have waited for few days

and not endlessly till 2009 for the purpose of filing the suit.

9. Section 9 of the Limitation Act very categorically lays down that

once the period of limitation starts ticking no subsequent inability or

disability will stop that time. This being the legal position, it is not open

to the plaintiff to contend that his cause of action arose only in the year

2007 or 2008 when the mother of the plaintiff had died and the plaintiff

issued notice to the defendant to implement the agreement. It could also

not be said that the cause of action had accrued to the plaintiff only on

filing of the probate matter on the basis of the Will of late Smt.

Padmawati Nayar. If this kind of reasoning is permitted to be followed

then, it will make the law of limitation not only redundant but will also

open flood gate of litigation as if no period of limitation is prescribed, any

person could always tailor make his averments in such a manner so that it

falls within the stipulated period of limitation. The period of limitation

moreover arises only once, it cannot arise repeatedly. The contention of

the learned counsel for the plaintiff is that the question of limitation, in

the instant case, is a mixed question of facts and law, does not convince

the court reason being that the facts, in the instant case, are not in dispute

and the plaintiff himself has averred that cause of action has accrued to

him on 8.4.1989. I, therefore, feel the suit of the plaintiff is barred by

limitation so far as the specific performance is concerned.

10. There is another aspect to this question of specific performance of

handing over 60 per cent of the shares. Admittedly, the shares are

moveable properties. Section 14 sub-clause 1 (a) of the Specific Relief

Act, 1963 lays down that specific performance of moveable properties

cannot be granted where there is an adequate relief of compensation

available. In the instant case, the plaintiff could have calculated the relief

in terms of money and have sought the remedy of recovery of the said

amount rather than filing the suit for specific performance because of the

fundamental that a contract to buy or sell moveables can be compensated

in terms of money unless and until it is covered by any of the exceptions

prescribed under law. This disability is also suffered by the plaintiff so

far as his case is concerned.

11. So far as the question of mandatory injunction is concerned, that is

only a consequential relief to the first prayer of specific performance and

as that prayer itself falls to the ground, consideration of the second prayer

of the plaintiff is not worth consideration.

12. The last prayer of the plaintiff is for issuance of a declaration with

regard to Will dated 26.5.1987. Article 137 of the Schedule to the

Limitation Act lays down that in case there is no limitation prescribed in

any of the provisions of the Limitation Act then there shall be a period of

three years within which the probate petition or a suit for declaration

which is based on the Will has to be filed. The mother of the plaintiff

Smt. Padmawati Nayar had expired only in the year 2005 while as the

Will is purported to have been made by her on 26.5.1987, therefore, it is

beyond the period of limitation of three years from the date of death of

Smt. Padmawati Nayar which was admittedly to the knowledge of the

plaintiff. Reliance in this regard is placed on Kunvarjeet Singh

Khandpur vs. Kirandeep Kaur & Others; AIR 2008 SC 2058.

13. For the reasons mentioned above, I feel that the suit of the plaintiff

is totally barred by limitation and is accordingly liable to be rejected

under Order VII Rule 11 (d) of the Limitation Act. Ordered accordingly.

Interim application is dismissed as having become infructuous.

V.K. SHALI, J.

JANUARY 10, 2014 'AA'