Delhi High Court
Raj Kishan Khanna vs Parvati Devi (Since Deceased) ... on 8 March, 2016
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on February 23, 2016
Judgment delivered on March 8 , 2016
+ CS(OS) 2709/2014
RAJ KISHAN KHANNA
..... Plaintiff
Through: Mr. Rajiv Nayyar, Sr. Adv.
with Mr. Arvind Kr. Sharma
& Mr. Anurag Jain, Advs.
versus
PARVATI DEVI (SINCE DECEASED) THRU. LRs
..... Defendant
Through: Mr. Premashish Choudhary,
Advocate
CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. By this order, I would decide the preliminary issue framed by this
Court on July 9, 2015 on the following terms:
"Whether suit instituted by the plaintiff is liable to be rejected
under Order 7 Rule 11 CPC being barred by limitation?"
2. The relevant facts for considering the aforesaid issue are, that, the
suit has been filed for specific performance of the agreement/receipt
dated March 16, 2007, or in the alternative, for a decree of recovery of
Rs. 4,60,00,000/- (Rupees 4 Crores 60 lakhs) in favour of the plaintiff
and against the defendant. The case of the plaintiff in the suit is that on
March 16, 2007, the plaintiff entered into an agreement to sell/receipt
dated March 16, 2007 with Parvati Devi, predecessor-in-interest of the
defendants (hereinafter referred to as the „Seller‟), whereby the plaintiff
had agreed to purchase land admeasuring 21 Bighas and1 Biswa out of
KhasraNo.65//21/2(3-4),78//1 (4-16), 9/3(1-4), 10 (4-16), 11(4-16),
12//l/l(0-7),7/20(1-8) situated in the revenue estate of Village Ujwa,
Delhi recorded in the revenue records of Najafgarh,Tehsil,New Delhi-
110043 from her on various terms and conditions as contained therein.
The total price of the said land was fixed in between the parties at Rs.
4,60,46,875/-. It is the case of the plaintiff that he had paid Rs. 1 Crore
at the time of the agreement, i.e. Rs.5,00,000/- in cash and Rs.
95,00,000/- by way of pay order No. 142540 dated March 16, 2007.
The receipt thereof was acknowledged by the seller. The plaintiff had
averred that the seller was to obtain NOC from the concerned authority
for sale of the land in favour of the plaintiff and shall give written
intimation for the same along with the copy of the NOC to the plaintiff.
The sale transaction was to be completed after obtaining valid NOC by
the seller, and also against registration of valid sale document and
handing over the vacant physical possession of the land to the plaintiff.
It is the case of the plaintiff that after entering into the aforesaid
agreement, the plaintiff did not receive any information from the seller
regarding obtaining the NOC from the concerned department. He
contacted the seller many a times and asked her to obtain NOC and
perform her part of the obligations under the said agreement on receipt of
the balance sale consideration, but, she kept the matter pending on one
pretext or the other till August 2007. The plaintiff had also averred that
he was shocked to receive a legal notice dated August 13, 2007 issued on
behalf of the seller through her lawyer, wherein, it was stated that the
entire agreed sale consideration was Rs. 10,00,00,000/- (Rupees 10
Crores). The agreement of sell was amended on March 16, 2007 and the
plaintiff was supposed to pay balance consideration of Rs. 9,00,00,000/-
(Rupees 9 Crores) by June 2, 2007. The previous agreement of sale
dated March 8, 2007 stood cancelled. Though in the legal notice, it was
stated that necessary no objection has been obtained, but the plaintiff
was neither given any detail or copy of any such NOC at any point of
time. According to the plaintiff, the averments made in the notice dated
August 13, 2007 were totally false and concocted in order to wriggle out
of the valid agreement of sale. The plaintiff‟s response to the legal
notice was given on August 23, 2007, wherein, the plaintiff had stated
that the total sale consideration was Rs. 4,60,46,875/- at Rs.
1,05,00,000/- per acre and not Rs. 10,00,00,000/- (Rupees 10 Crores).
The plaintiff denied that the time of execution of the agreement was upto
June 2, 2007. The plaintiff‟s case in response to the legal notice was that
no intimation/information was ever given to him regarding obtaining of
NOC despite plaintiff‟s regular follow up. It was further stated by the
plaintiff, the seller had, by issuing the legal notice, sought to wriggle out
of the agreement. The plaintiff had expressed his readiness to perform
his part of obligations under the agreement and had also demanded a
copy of the NOC, if obtained and to receive the balance consideration of
Rs. 3,60,46,875/- and execute necessary sale documents in favour of the
plaintiff. The plaintiff has averred that no response to the reply to the
legal notice was given by the seller nor any copy of the NOC was
supplied to him. He got issued another notice dated February 14, 2008
through registered post to the seller and her lawyer. In the said notice, it
was clearly stated that no information had been supplied to the plaintiff
and his lawyer regarding obtaining of the NOC from the concerned
Tehsildar in favour of the plaintiff for the sale of land. It was further
stated in the notice that the agreement between the parties is still valid,
binding and subsisting and the plaintiff is always ready and willing to
pay the balance sale consideration and perform his part of the contract.
The said notice was duly served on the seller and her lawyer, but no
response was received. The plaintiff‟s case was, even thereafter, he kept
on telling seller to give him the copy of the NOC, receipt of balance
consideration and execute the relevant documents in his favour, but, she
kept the matter pending on one pretext or the other. However, due to
intervention of the members of the society, the parties again sat together
and after much deliberations and negotiations, the seller assured the
plaintiff to remain bound by the agreement entered into between the
parties and also orally agreed with the plaintiff to obtain the NOC in his
favour and complete the sale consideration in terms of the original
agreement dated March 16, 2007. He would also state that the oral
agreement and understanding so reached in between the parties as
aforesaid, was also acted upon, the seller informed the plaintiff that she
had taken necessary steps for obtaining the NOC from the revenue
authorities. He states, however, the seller kept the matter pending till
October 2011, when, the plaintiff personally visited the house of the
defendant and enquired about the status of the NOC and completion of
sale, the seller had sought some more time. She again expressed her
readiness and willingness to sell the property to the plaintiff as per the
agreed terms and conditions. It is the plaintiff‟s case that later on, the
plaintiff has come to know that Parvati Devi, the Seller left for heavenly
abode in the month of February, leaving defendant Nos. 1 and 2 as her
legal heirs, as such, the plaintiff contacted both of them to hand over the
valid NOC and execute the sale document under the aforesaid agreement
of sale as legal heirs of the seller. The defendant Nos. 1 and 2 assured
the plaintiff to remain bound by the aforesaid agreement of sale with all
the terms and obtain a valid NOC and complete the transaction. It is the
plaintiff‟s case that despite demands and request and passing of
considerable time both the defendants failed to inform the status of the
NOC in favour of the plaintiff. The plaintiff also contacted them
telephonically on August 1, 2014, and in terms thereof, the plaintiff was
told, to sit on August 5, 2014 to do the needful but again they failed to
keep their words and execute the relevant documents. Finally, one legal
notice was sent on August 14, 2014 to the defendants to obtain a valid
NOC from the concerned authorities, take the balance consideration, and
execute the sale deed in favour of the plaintiff in terms of the agreement
dated March 16, 2007. The said notice was duly served on the
defendants.
3. The case of the defendants is that the agreement for sale of the suit
property was for an amount of Rs. 10,00,00,000/- (Rupees 10 Crores).
The plaintiff was never ready and willing to perform his part of the
contract. It is averred that the suit is barred by limitation as the first
agreement to sell was executed between the parties on March 8, 2007
and after the earnest money issued by cheque for an amount of Rs.
95,00,000/-, was dishonoured, the plaintiff again approached the
defendants on March 16, 2007 and issued a pay order for the above
amount. Agreement to sell was executed by the seller and it was
specifically mentioned in the agreement that the balance amount of Rs.
9,00,00,000/- (Rupees 9 Crores) shall be paid on or before 75 days i.e.
by June 2, 2007. The plaintiff failed to pay the balance amount by June
2, 2007, as such, the legal notice was issued to the plaintiff by the seller
on August 13, 2007, calling upon the plaintiff to make the balance
payment within 7 days of the receipt of the legal notice with the
stipulation that if the plaintiff fails to do so, then the seller would cancel
the agreement and forfeit the earnest money. The plaintiff failed to pay
the balance amount of the sale transaction, as such, the agreement to sell
stood cancelled. According to the defendants, the facts of the matter
are:-
"5. .....
(i) That the parties to the suit had entered into an
agreement to sell dated 08.03.2007 whereby it was agreed
by the plaintiff to purchase the land owned by Smt. Parvati
Devi (deceased) measuring 21 Bighas and 1 Biswa, out of
Khasra No- 65/21/2 (3-4 ), 78/1 (4-16 ), 9/3 ( 1-4 ), 10(4-
16), 11 (4-16) 12/1/1 (0-7 ) & 20 ( 1-18 ), situated in the
revenue estate of village Ujwa, Delhi State, Delhi recorded
in the revenue records of Najafgarh Tehsil, New Delhi.
(ii) That the sale consideration was agreed to be Rs.
10,00,00,000/- (Rupees Ten Crore Only ).
(iii) That it was also agreed between the parties that an
earnest money/ bayana of Rs 10000000/- (Rupees one
crore) shall be paid by the plaintiff on the signing of the
above mentioned agreement to sell and the balance amount
of Rs 9,00,00,000/- (Rupees nine crore) shall be paid
within three months from the date of the agreement.
(iv) That the plaintiff paid Rs 5,00,000/- (Rupees five lakh
only) in cash and issued a cheque of Rs 95,00,000/-
(Rupees ninety five lakhs only), vide cheque as earnest
money on the day of signing of the above mentioned
agreement to sell.
(v) That the cheque issued by the plaintiff for
Rs.95,00,000/- (Rupees ninety five lakhs only), in favour of
Smt. Parvati Devi (deceased) was dishonoured and
thereafter Smt. Parvati Devi immediately approached the
plaintiff and apprised him that the cheque issued by him
was dishonored, the plaintiff requested the defendant
(deceased) to give him some time and he shall make the
payment within a week, defendant considered his request
and consented to give him a week's time to make the
payment of the above mentioned cheque.
(vi) That the plaintiff on 16.3.2007 issued a Pay Order of
Rs.95,00,000/- (Rupees ninety five lakhs only), bearing no-
142540 drawn on The Karur Vysya Bank Ltd Karol Bagh,
New Delhi, in favor of Smt.Parvati Devi, this amount was
paid by the plaintiff as earnest money towards the sale of
the above mentioned land of the defendant.
(vii) That on 16.3.2007 the plaintiff also requested Smt.
Parvati Devi (deceased) to draw a fresh agreement to sell
on the same terms and conditions as enumerated in the
previous agreement to sell dated 8.3.2007, with only one
amendment that vide the agreement to sell dated
16.3.2007, it was agreed by plaintiff that he shall make the
balance payment of Rs 9,00,00,000/- (Rupees nine crore) to
Smt. Parvati Devi (deceased) on or before 75 days i.e on or
before 2nd June 2007.
(viii) That with the execution of the fresh agreement to sell
dated 16.3.2007 the previous agreement to sell dated
8,3.2007 stood cancelled.
(ix) That the plaintiff did not perform his part of the
contract and had failed to make the balance payment as
agreed by the plaintiff by 2.6.2007, despite the fact that
Smt. Parvati Devi (deceased) reminding the plaintiff time
and again, but his attitude showed that plaintiff were not
interested in purchasing the land.
(x) That there was no stipulation that NOC shall be
obtained by the seller, still Smt. Parvati Devi (deceased)
signed on requisite documents for obtaining NOC and
handed over to the same to the purchaser i.e. the plaintiff.
It was informed that NOC had been obtained but the
plaintiff still did not approach the defendant for completion
of the same.
(xi) That after the summons in the above suit was served,
the defendant enquired from the revenue department
regarding the NOC and found out that a huge fraud and
forgery had been committed by the plaintiff by forging the
signatures of Smt. Parvati Devi (deceased), the plaintiff
had obtained an NOC on 21.05.2007 for a lesser amount.
The defendant seeks leave to file the requisite documents
regarding the above forgery committed by the plaintiff. It is
also stated that the NOC obtained by fraud and forgery. A
copy of which has been obtained is filed along with.
(xii) That it was made known to the plaintiff that, it was
agreed and undertaken by the plaintiff in the agreement to
sell in para 5 that if he violates the terms and conditions of
the agreement then Smt. Parvati Devi (deceased) is entitled
to get the said amount of advance paid by the plaintiff
being Rs. 1,00,00,000/- (Rupees one crore), forfeited and
the transaction shall stand cancelled.
(xiii) That Smt. Parvati Devi (deceased) was always ready
and willing to perform her part of the agreement, but the
plaintiff have failed to perform his part of the agreement.
(xiv) Thus the defendant on 13.08.2007 issued a legal
notice for payment of balance amount within 7 days of
receipt of the notice failing which the defendant shall
cancel the agreement and forfeit the earnest money paid by
the plaintiff. The plaintiff after receiving the above legal
notice, never approached the defendant for completion of
the sale transaction as such the agreement for sale of the
suit land stood cancelled in August, 2007".
4. Mr. Rajiv Nayar, learned Senior Counsel appearing for the
plaintiff would state that on the receipt of the legal notice dated August
13, 2007, on behalf of the the seller, the plaintiff had sent a reply
wherein, the plaintiff had denied the total sale consideration being Rs. 10
Crores. He had also denied that the deal was finalized on March 8, 2007.
The plaintiff had also denied that the balance payment was to be paid by
June 2, 2007. He has highlighted the fact that, no copy of the NOC was
ever been supplied to the plaintiff. It is his case that in the absence of a
NOC, having been supplied to the plaintiff, it is as good, NOC was not
obtained by the seller, which is a condition precedent for execution of
the sale document. He draws my attention to clause 11 of the agreement
dated March 16, 2007, which reads as under:
"11) That the first party shall obtain the NOC
from the concerned authorities (Revenue
Department) at its own cost and expenses and
inform the second party within 15 days from the date
of clearance of NOC."
5. He states, in response dated August 23, 2007 to the legal notice of
the seller dated August 13, 2007, when the plaintiff had asked to supply
him the copy of the NOC, the seller failed to supply the same. The time
would not run against the plaintiff so as to attract limitation, to non-suit
the plaintiff. Mr. Nayar, learned Senior Counsel would rely upon the
Article 54 of the Limitation Act, to submit that, it specifies, the period of
limitation for the suit for specific performance, which is, the date fixed
for performance or if no such date is fixed when the plaintiff has notice
that the performance is refused. According to him, that after the plaintiff
had asked the seller to supply the copy of the NOC, no response was
ever received by the plaintiff and in the absence of NOC, the limitation,
seeking specific performance of the contract had not commenced. In this
regard, he would rely upon the judgment of this Court in the case of
Arun Nirula (Deceased) through LRs Vs. K.N.Jain and Ors., 2013
(138) DRJ 520, wherein, according to him, this Court on identical facts
has held that for an agreement to sell, to fall in the first category of
Article 54 of the Limitation Act, either the agreement should fix a
calendar date for performance or the date fixed should be ascertainable
with an event certain to happen, which, in this case, was supply of NOC
by the seller.
6. On the other hand, learned counsel appearing for the defendants
would rely upon the agreement dated March 16, 2007 to contend, the
obligations of the parties are very clear therein. He states that the
agreement pre-supposes the receipt of balance amount of Rs.
9,00,00,000/- (Rs. 9 Crores) on or before 75 days from the date of
agreement i.e. June 2, 2007, which the plaintiff had failed to perform. He
would also state that vide legal notice dated August 13, 2007, the seller
despite informing the plaintiff, the obtaining of NOC, no sale
consideration was paid before the agreed date i.e. June 2, 2007.
According to him, by the said notice, the seller had called upon the
plaintiff to make the balance payment of Rs.9,00,00,000/- and complete
the sale transaction for execution of the sale deed within a period of 7
days from the receipt of the notice, failing which, the earnest money paid
by the plaintiff to the seller shall stand forfeited and the agreement shall
stand terminated. He states, that by this communication, the seller has
expressed herself that the NOC had been obtained by her and the balance
amount need to be paid by the plaintiff within 7 days, failing which, the
agreement would stand terminated. According to the learned counsel for
the defendants, no doubt that the plaintiff had responded to the notice
dated August 13, 2007 on August 23, 2007, but had not paid the balance
consideration amount within the time granted by the seller, which had
resulted in the forfeiture of the earnest money and the termination of the
agreement. Thereafter, no judicial recourse was taken by the plaintiff till
2014 and a response to the legal notice denying the averments and
calling upon the seller to supply a copy of the NOC, would not help the
case of the plaintiff. In fact, there is no such requirement of supplying a
copy of the NOC.
7. Learned counsel for the defendants would rely upon the judgments
of this Court in the cases of Ravinder Nath Sahni Vs. Poddar
Construction Co. P. Ltd. and Anr. and connected matter i.e. Sabina
Jajodia Vs. Ravinder Nath Sahni, 211 (2014) Delhi Law Times 561 in
support of his contention. He would also rely upon AIR 1993 SC 1120
Smt. Thakamma Mathew Vs. M.Azamathulla Khan and Ors. to
contend that when the seller had indicated that the failure to pay the
amount of Rs. 9,00,00,000/- within a period of 7 days, shall entail the
forfeiture of the earnest money and the cancellation of the agreement, the
plaintiff was required to file the suit within three years from the expiry of
the seven days, which he has not done, the suit is barred by time and
need to be dismissed.
8. Having heard the learned counsel for the parties, it may be
clarified here that, according to the plaintiff, the agreement to sell/receipt
dated March 16, 2007 (at pages 3 to 5 of the documents of the plaintiff)
is the agreement to sell executed between the parties. I note, the
agreement to sell filed by the defendants also dated March 16, 2007 (at
pages 11 to 13 of the defendant‟s documents) has been denied by the
plaintiff as being false and fabricated which even does not bear the
signatures of the plaintiff. If that be so, the agreement to sell/receipt on
which the plaintiff is relying reads as under:
"Received with thanks a sum of Rs. 1,00,00,000/-
(Rs. One Crore only) Details as under:-
Rs. 95,00,00,000/- (Rs. Ninety Five Lacs only) by
Draft No. 142540 Dt. 16.3.2007 draw on The Karur
Vysya Bank Ltd. Bank Street Karol Bagh, New Delhi.
Rs. 5,00,00,000/- by Cash (Rs. Five Lacs only) as an
earnest money/biana from Mr. Raj Kishan Khanna S/o
Sh. Wazir Chand Khanna R/o W-21 Greater Kailash,
Part II, New Delhi on a/c of sale proceeds of a piece of
land area measuring 21 Bighas and1 Biswa out of
KhasraNo.65//21/2(3-4),78//1 (4-16), 9/3(1-4), 10 (4-
16), 11(4-16), 12//l/l(0-7),7/20(1-8) situated in the
revenue estate of Village Ujwa, Delhi recorded in the
revenue records of Najafgarh,Tehsil,New Delhi-
110043 as per terms and conditions of the agreement
to sell executed by me in his/her/its favour.
Executed, signed and delivered by the said executed at
Delhi on this 16.03.2007 in the presence of the
following witnesses:
Witnesses: EXECUTANT
1. Sd/-
Sudish Kumar Rana
V& PO Bijwasan
N.D. 110061
2. Amit Kumar
Village Bijwasan
N.D. 61 Sd/-
Smt. Parvati Devi D/o
Sh. Naubat Ram W/o
Sh. Krishan Dutt Rana,
Vill. Bijwasan, New
Delhi"
The aforesaid except, referring to the amount received from the plaintiff;
the particulars of the land, does not specify any further details as stated
by the plaintiff in para 2 of the plaint. I also note, the defendants, had
also referred to agreement dated March 8, 2007, annexed along with the
documents (at pages 2 to 4 of the defendant‟s documents). This
document has been denied by the plaintiff in the replication.
9. So, the issue of limitation needs to be decided on the basis of the
following:
(i) Legal notice of the defendant dated August 13, 2007.
(ii) Reply of the plaintiff dated August 23, 2007.
(iii) Further notice dated February 14, 2008
(iv) Legal notice dated August 14, 2014.
(v) Agreement to sell/receipt dated March 16, 2007, on which
reliance is placed by the plaintiff.
10. First, the legal notice of the defendants dated August 13, 2007,
wherein the following has been stated:
"6. That you on 16.3.2007 issued a pay order of
Rs. 95,00,000 bearing No. 142540 drawn on The Karur
Vysya Bank Ltd. Karol Bagh, New Delhi, in favour of my
client, this amount was payed by you as earnest money to
my client towards the sale of the above mentioned land of
my client.
7. That on 16.3.2007 you also requested my client
to draw a fresh agreement to sell on the same terms and
conditions as enumerated in the previous agreement to sell
dated 8.3.2007, with only one amendment that vide the
agreement to sell dated 16.3.2007 it was agreed by you
that you shall make the balance payment of Rs.
90,00,00,000/- to my client on or before 75 days i.e. on or
before 2nd June 2007.
8. That with the execution of the fresh agreement
to sell dated 16.3.2007 the previous agreement to sell
dated 8.3.2007 stood cancelled.
9. That you have not performed your part of the
contract and have failed to make the balance payment on
the agreed dated i.e. 2.6.2007, despite the fact that my
client has approached you time and again, but your
attitude showed that you were not interested in purchasing
the land.
10. That my client also informed you that
necessary no objection has been obtained, but you have
failed to pay the balance agreed sale consideration.
11. That it is made known to you that, it was
agreed and undertaken by you in the agreement to sell in
para 5 that if you violate the terms and conditions of the
agreement then my client is entitled to get the said amount
of advance paid by you being Rs. 1,00,00,000/- (Rupees
One Crore) forfeited and the transaction shall stand
cancelled".
XXX XXX XXX
I therefore, call upon you vide this notice to make
the balance payment of Rs. Nine Crore and complete the
sale transaction for execution of the sale deed, within
seven days from the receipt of this notice failing which the
earnest money/bayana paid by you to my client shall stand
forfeited, and the agreement shall also stand terminated,
and you shall have no right to the land of my client
whatsoever under the said agreement, and my client shall
be free and lawfully entitled to sell their land to some other
prospective buyer without any objection from you, for
which, you shall be solely liable and responsible to bear
the cost and consequences suffered thereof".
11. In response, the plaintiff in his reply dated August 23, 2007 states
as under, more specifically, with regard to NOC:
"3. That your client was required to obtain No
objection certificate from Tehsildar (N), for the sale of
the said land in favour of my client and thereafter my
client was to make the payment of balance sale
consideration against registration of the sale deed and
handing over of the vacant physical possession of the
said land to my client.
XXX XXX XXX
7. That it is specifically denied that the time of
balance payment was uptill 02.06.2007, however, even if
it is presumed to be true, then also no
intimation/information was ever given to my client
regarding obtaining of NOC by your client despite
regular follow up by my client.
8. That content of para 9, 10 and 11 are false
and hence denied. It is specifically denied that my client
failed to perform his part of the contract. No copy of
NOC has even been even till today been supplied to my
client".
12. In further notice dated February 14, 2008, the plaintiff, states as
under:
"1. This has reference to your notice dated
13.08.2007 on behalf of your abovenamed client and
reply-cum-notice dated 23.08.2007 in response thereto.
In this regard, I would like to again point out that no
response has been received either from your side or from
your client regarding any commitment for performance of
her obligation by your client in terms of the
receipt/agreement dated 16.3.2007 (hereinafter referred
to as „THE AGREEMENT‟) entered into between your
client and my client, which is still valid and subsisting,
regarding sale of land measuring 21 Bighas and1 Biswa
out of KhasraNo.65//21/2(3-4),78//1 (4-16), 9/3(1-4), 10
(4-16), 11(4-16), 12//l/l(0-7),7/20(1-8) situated in Village
Ujwa, Delhi State, Delhi (hereinafter referred to as the
„THE SAID LAND‟/ THE SUBJECT PROPERTY‟) by
your client.
2. That no information has been supplied to
either me or my client regarding obtaining of No
objection certificate from Tehsildar (N), for the sale of
the said land in favour of my client, even till today.
3. The Agreement with my client is still valid,
binding and subsisting. My client is always ready to pay
the balance sale consideration and perform his party of
contract.
In view of the above, I hereby once again remind
you to advise your client to (i) immediately and
unconditionally withdraw legal notice dated 13.08.2007
(ii) immediately provide copy of NOC if obtained and (iii)
complete her part of the contract by accepting the
balance sale consideration of Rs. 3,60,46,875 and
simultaneously register sale deed of the subject property
in favour of my client against handing over vacant
possession, failing which, my client shall be constrained
to take appropriate legal action against (both civil and
criminal) against your client at your client‟s cost and
risk".
13. It is noted from above, the plaintiff does not dispute the receipt of
the notice dated August 13, 2007 wherein the seller had expressed
herself that the NOC had been obtained and called upon the plaintiff to
pay the amount of Rs. 9,00,00,000/- within a period of 7 days, otherwise,
the earnest money shall stand forfeited and the agreement would stand
terminated. A reading of the reply to the notice dated August 23, 2007
does refer to the aspect of NOC in para 3 and 8. In para 3, the plaintiff
refers to the seller obtaining NOC, whereas in para 8, he goes further
with regard to supplying the same to him.
14. Be that as it may, what is important is the, the Seller in her notice
dated August 13, 2007, had expressed that the contract would come to an
end on failure to pay the balance amount within 7 days, which was a
sufficient notice that the performance would stand refused on the expiry
of 7 days. On the expiry of 7th day, cause of action had accrued to the
plaintiff to seek a judicial recourse within three years in terms of Article
54 of the Limitation Act. The averments made in the plaint about
plaintiff‟s notice dated February 14, 2008 and reference to certain
meetings between him and the seller would not help the case of the
plaintiff. Further, there is no material to substantiate the said averments
by way of any documentary evidence. In any case, once cause of action
has accrued, it would continue to run. Further, it is the case of the
plaintiff that the seller was trying to wriggle out of the agreement to sell.
It is a clear indication that the plaintiff was aware and conscious of the
fact that he was likely to be in a disadvantageous position, if he did not
take immediate legal recourse. It is also not the case of the plaintiff that
the legal notice dated August 13, 2007, stands withdrawn. Further, there
is nothing to suggest in the Agreement to Sell/receipt dated March 16,
2007, on which plaintiff has placed reliance, the seller was to obtain
NOC from the authorities and supply a copy of the same to him.
Further, the representation of the seller that she has obtained NOC
cannot be overlooked. That apart, I note from the plaint after legal
notice dated February 14, 2008, the next date of meeting was in October
2011, which is also beyond 3 years. Having not filed the suit within
three years from August 20, 2007 (expiry of 7 days) the filing of this suit
in 2014 is barred by limitation.
15. Insofar as the judgment relied upon by the learned Senior Counsel
for the plaintiff in the case of Arun Nirula (Deceased) through LRs
(supra) is concerned, there, the Court was concerned with the following
facts, which I reproduce as under:
"5. The appellant filed the suit from which this
appeal arises, pleading: (i) that the respondents No.1 & 2
at different times were owners of plot bearing Khasra
No.47/9, Village Mehrauli, New Delhi; (ii) that the
respondents No.3 & 4 were property dealers of the area;
(iii) that in April, 1992, the respondents No.3 & 4
projecting themselves as agents of the respondent No.1
approached the appellant and proposed a sale of the said
land in Khasra No.47/9, Village Mehrauli, New Delhi and
showed the Farad of the said land in the name of the
respondent No.2 and a registered power of attorney
executed by the respondent No.2 in favour of the
respondent No.1 and represented that the respondent No.1
was thus entitled to sell the property; (iv) that the
appellant decided to buy the part of the land admeasuring
410 sq. yds. out of total area of about 3,400 sq. yds. and
the price after deliberations with the respondents No.1, 3
& 4 was fixed at Rs.50,000/- (v) that the appellant paid the
entire consideration of Rs.50,000/- and the respondent
No.1 executed an Agreement to Sell, a General Power of
Attorney both dated 24th April, 1992 and some other
relevant documents in favour of the appellant; (vi) that the
appellant also paid the brokerage of the respondents No.3
& 4; (vii) that vacant possession of the land agreed to be
sold was also handed over to the appellant and the
appellant constructed a boundary wall and a small room
thereon; (viii) that the respondent No.3 also had a plot in
the same area and in February, 1995 requested the
appellant to allow use of the room aforesaid for keeping
certain perishable items, stating that he was constructing a
house on his plot which was adjacent to the subject plot;
(ix) that the appellant so allowed permissive use of the
property to the respondent No.3; (x) that the appellant in
September, 1998 found that the respondent No.3 had
constructed another room on the subject property and
upon the appellant objecting, also disputed the title of the
appellant to the property;
(xi) that the appellant then contacted the respondent No.4
who also avoided the appellant; (xii) that the appellant
thereafter contacted the respondent No.1 and requested
him to execute Sale Deed but the conduct of the respondent
No.1 was evasive. Accordingly, the suit for the reliefs
aforesaid was filed on or about 26th May, 1999."
16. The suit in Arun Nirula (supra) was filed on May 26, 1999 for
specific performance of an agreement to sell dated April 24, 1992. The
question arose before this Court was, whether agreement to sell of which
specific performance was claimed, and which is in writing, fixed a date
for performance inasmuch if the same is fixed, the period of limitation
would be three years from such date. The clause under interpretation
was clause 6, which is reproduced as under:
"6. That the first party shall apply for sale
permission from the office of the lessor as well as the
competent authority under provision of the Urban Land
(Ceiling & Regulation) of 1976 and fulfil all the
formalities for the completion of the sale deed in favour of
the Second Party or his nominee(s) and shall execute a
proper sale deed of the above mentioned property along
with the lease hold rights of the land underneath in favour
of the second party or their nominee(s) and shall get the
same regd. in the office of the Sub-registrar, Delhi after
getting such sale permission etc. within 90 days from the
date of receipt of such permission and fulfilling all the
formalities."
17. In para 14 of Arun Nirula's case (supra), this Court has held as
under:
"14. Neither is there any provision in the Agreement
to Sell in this regard nor is any answer forth coming from
the counsel for the respondent No.4. I am of the view that
merely because the Agreement provides for a time within
which, after receipt of permissions, the Sale Deed will be
executed, does not make the Agreement to Sell fall in the
first category provided in Article 54 i.e. Agreements which
fix a date of performance. Once the Agreement does not fix
a date for obtaining the permission, mere fixing of time for
execution of Sale Deed after the permissions are obtained
would not amount to fixing a time for completing the sale
inasmuch as in such cases there is no identifiable date by
which the agreement is to be performed. For an Agreement
to Sell to fall in the first category in Article 54, either the
agreement should fix a calendar date for performance or
the date fixed should be ascertainable with an event certain
to happen. However, in the subject Agreement, the
commencement of the period of 90 days fixed for
performance i.e. for execution of Sale Deed, was dependent
on receipt of permissions required and formalities to be
completed and for receipt/fulfilment of which, no time was
fixed. Thus, merely because the agreement fixes a period of
90 days, from receipt of permissions/completion of
formalities, for execution of Sale Deed, would not make the
agreement fall in the category where date for performance
is fixed. Reliance in this regard can be placed on Tosh
Apartments Pvt. Ltd. Vs. Pradeep Kumar Khanna 54 (1994)
DLT 318. Thus, the Agreement in hand has to be held to be
falling in the second category i.e. where no date for
performance is fixed and in which case the limitation of
three years commences from the date when the plaintiff has
notice that performance is refused".
18. Surely, the facts which fell for consideration before the Court were
different from the facts in this case. The case of Arun Nirula (supra) is
not applicable in the facts of the present case in as much as the
agreement to sell/receipt dated March 16, 2007, on which reliance is
placed by the plaintiff does not have any stipulation with regard to
obtaining NOC from the authorities, as a condition precedent for
executing sale deed and hence, supplying the same is of no relevance.
Rather, I find the judgment relied upon by the learned counsel for the
defendant in Smt. Thakamma Mathew (supra) would cover the case of
the defendants, wherein, in para 8, the Supreme Court has held as under:
"8.......In the present case, the appellant by his notice
dated February 10, 1975 had clearly indicated that he
had cancelled the agreement and had forfeited the
advance amount of Rs. 18,000 deposited by the
defendant. By the said notice, it was clearly indicated
that the appellant was no longer willing to perform the
agreement to sell dated November 12, 1974. In the
circumstances, it was incumbent upon the defendant to
have filed a suit for specific performance of the contract
within a period of three years from the date of the said
notice dated February 10, 1975 and if such a suit had
been filed by the defendant, it would have been open to
the appellant to show that it was barred by the provision
contained in Section 16 of the Specific Relief Act. The
defendant did not choose to adopt that course and
remained content with defending the suit filed by the
appellant for cancellation of the agreement to sell dated
November 12, 1974 and for recovery of the possession of
the property. Even if it is found that the appellant was not
entitled to succeed in the said suit and the said suit is
liable to be dismissed, it would not entitle the defendant
to obtain a decree for specific performance of the
contract in those proceedings. The High Court, with due
respect, was not right in invoking its discretionary power
under Order 7 Rule 7 C.P.C. to grant such a relief to the
defendant. The said power conferred on the court does
not enable it to override the statutory limitations
contained in Section 16 of the Specific Relief Act, 1963
and Section 54 of the Limitation Act, 1963 which
preclude the grant of the relief of specific performance of
a contract except within the period prescribed by the
section".
19. Suffice to state, in the aforesaid judgment of Smt. Thakamma
Mathew (supra), the Supreme Court also held that the suit for specific
performance of the contract should be filed within three years from the
date of notice of cancelling the agreement. In the present case, it would
be 7th day of receipt of notice dated August 13, 2007. The plea of Mr.
Nayar, learned Senior Counsel for the plaintiff that till such time, the
seller had given the copy of the NOC, no cause of action would have
accrued to the plaintiff for approaching this Court, is unsustainable,
when the seller had expressed herself terminating the agreement on
failure to give the balance consideration within seven days.
20. In view of the aforesaid, the preliminary issue framed is decided in
favour of the defendants. The suit is dismissed being barred by
limitation.
21. No costs.
(V.KAMESWAR RAO)
JUDGE
MARCH 8, 2016
akb
