Delhi High Court
T. Venkat Ram Reddy vs Blue Chip Capital Services Pvt. ... on 17 April, 2017
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION: 17TH APRIL, 2017
+ CS(OS) No.96/2017, IA No.2514/2017 (under Order XXXIX Rules
1&2 CPC) & IA No.2515/2017 (under Order I Rule 10 CPC)
T. VENKAT RAM REDDY ..... Plaintiff
Through: Mr. Anupam Srivastava, Mr. Shikhar
Sareen, Ms. Niharika & Mr. Vekat
Reddy, Advs.
Versus
BLUE CHIP CAPITAL SERVICES
PVT. LTD. & ANR. ..... Defendants
Through: Mr. Sanjeev Puri, Sr. Adv. with Mr.
Kamal Kumar, Adv. for D-2.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit for the reliefs of i) cancellation of
registered Deed of Assignment dated 9th August, 2012; ii) cancellation of
registered Supplementary Deed of Assignment dated 3rd September, 2012;
iii) mandatory injunction directing the defendants viz. Blue Chip Capital
Services Pvt. Ltd. (BCCSPL) and Religare Finvest Ltd. (RFL) to handover
the original Deeds of Assignment for the purposes of cancellation thereof;
and, iv) permanent injunction restraining the defendants from dispossessing
the plaintiff from flat No.105 on the first floor of building known as "Silver
Arch" at 22, Feroze Shah Road, New Delhi, pleading:
(a) that the plaintiff is the owner of the said flat vide registered
Agreement to Sell and Power of Attorney in his favour;
CS(OS) No.96/2017 Page 1 of 20
(b) that the plaintiff is one of the Directors / Promoters of M/s Deccan
Chronicle Holding Ltd. (DCHL);
(c) that the defendant no.2 RFL sanctioned Rs.200 crores in favour of
DCHL as loan and disbursed the same;
(d) that the defendant no.2 RFL being in a position to dominate the will of
the plaintiff, obtained an unfair advantage by forcing the plaintiff to
deposit the documents pertaining to the said flat with the defendant
no.2 RFL on 8th June, 2002;
(e) that the defendant no.2 RFL recalled the loan prematurely;
(f) that DCHL was not in a position to repay the loan and was compelled
to provide additional securities to defendant no.2 RFL and also asked
the plaintiff to execute transfer documents in respect of the said flat,
title documents whereof were already in possession of defendant no.2
RFL;
(g) that the plaintiff was not willing therefor;
(h) that the defendant no.2 RFL threatened to take coercive steps against
DCHL and also assured the plaintiff that it only intended to create a
document and not a sale deed with respect to the said flat, merely for
securitising the loan and execution of such a document by the plaintiff
with respect to the flat would be a mere formality for the sake of
auditing; the plaintiff was further assured by the defendant no.2 RFL
that the plaintiff would continue to enjoy the peaceful possession of
the said flat and no exchange of money would take place between the
concerned parties; believing the assurances of the defendant no.2
RFL, the plaintiff was induced in August, 2012 into executing the
CS(OS) No.96/2017 Page 2 of 20
Deed of Assignment and subsequently the Supplementary Deed of
Assignment on 3rd September, 2012 in favour of the defendant no.1
BCCSPL which was introduced to the plaintiff for the first time by the
defendant no.2 RFL;
(i) that the Deed of Assignment was executed for a mere consideration of
Rs.1.5 crores which was increased to Rs.7,13,70,000/- via
Supplementary Deed dated 3rd September, 2012, though the market
value of the flat is approximately Rs.10 crores;
(j) that the transaction of Deed of Assignment and Supplementary Deed
of Assignment was a sham which is evident from the fact that even the
negligible consideration amount was not transferred to the account of
the plaintiff and as promised, the plaintiff continued to enjoy the
possession of the said flat;
(k) that on 21st April, 2016, attempt was made to forcibly dispossess the
plaintiff and his family from the said flat;
(l) that on account of non-payment of the loan advanced by defendant
no.2 RFL to DCHL, the dispute was referred for adjudication by way
of arbitration; the defendant no.2 RFL in its rejoinder filed in March,
2014 in the said proceedings stated that nine out of the total
immovable properties mortgaged in favour of the defendant no.2 RFL
had been transferred/sold to undisclosed persons and that proceeds
from selling one property in Delhi was received by defendant no.2
RFL which amount was adjusted towards the account of DCHL;
(m) that again on 28th April, 2016 and 2nd May, 2016 attempts were made
to dispossess the plaintiff from the said flat;
CS(OS) No.96/2017 Page 3 of 20
(n) that the persons attempting to dispossess the plaintiff are claiming to
have copies of the Deeds of Assignment; that since the only persons
privy to the information relating to the Deeds of Assignment were the
parties to the same, hence it is clear that it is the defendants who are
attempting to dispossess the plaintiff; and
(o) that the defendant no.2 RFL, under the garb of helping the plaintiff
and DCHL, managed to influence the plaintiff into executing the
Deeds of Assignment which is clear proof of the fact that the entire
process was well thought out conspiracy of the defendants wherein
they inter alia appropriated massive amounts with an intention of
removing the plaintiff and his family from lawful possession of the
flat.
2. The suit instituted on 6th February, 2017 came up before this Court
first on 27th February, 2017 when it was found that though the suit had been
filed as a fresh suit but in fact the plaintiff had earlier filed the suit before the
Court of the District Judge and had thereafter sought amendment of the
plaint and upon the plaint after amendment being found to be beyond the
maximum pecuniary jurisdiction of the Court of the Additional District
Judge (ADJ), was returned to the plaintiff for filing in this Court. However
the plaint filed before this Court was not the plaint which was so returned to
the plaintiff and the plaint which was returned to the plaintiff in fact was
filed by the plaintiff as a document accompanying the suit.
3. The counsel for the defendant no.2 RFL also appeared on 27th
February, 2017 and complained that though a caveat had been filed but
advance copy had not been served. It was further contended that the cost
CS(OS) No.96/2017 Page 4 of 20
imposed on the plaintiff while allowing the amendment of the plaint before
the ADJ had not been paid.
4. In the circumstances, the counsel for the plaintiff was directed to
supply copy of the paper book to the counsel for the defendant no.2 RFL and
to deposit the cost and the suit posted to 3rd March, 2017 for consideration.
5. The senior counsel appearing for the defendant no.2 RFL on 3 rd
March, 2017 contended that the suit claim is barred by time and thus the
summons even of the suit ought not to be issued. It was further contended
that the plaintiff, in para no.19 of the plaint has admitted being aware of the
exact nature of the Deeds being executed and thus cannot seek setting aside
thereof and plaint does not disclose any right for rescission of the Deeds.
6. On 3rd March, 2017 it was enquired from the senior counsel for the
defendant, whether the amount claimed by the defendant no.2 RFL in the
arbitration proceedings was after adjustment of the amounts towards the
consideration of the Deeds of Assignment.
7. The senior counsel for the defendant no.2 RFL replied in the
affirmative.
8. It was further informed that the claim in the arbitration proceedings
was as far back as in the year 2012. Therefrom it appeared that the plaintiff,
if not on the date of execution of the Deeds of which cancellation is sought,
at least on receipt of claim of the defendant no.2 RFL in the arbitration
proceedings would have knowledge of the stand of the defendant no.2 RFL
of the flat having already stood assigned to defendant no.2 RFL. It was thus
enquired from the counsel for the plaintiff as to how the suit filed on 6th
February, 2017 was within limitation.
CS(OS) No.96/2017 Page 5 of 20
9. The counsel for the plaintiff sought time to address. He was directed
to also file copies of the pleadings in the arbitration proceedings including
the contract and personal guarantees furnished by the plaintiff.
10. The counsel for the plaintiff on 3rd March, 2017 was also put to notice
that as per my understanding, the date of institution of this suit, even if after
return of the plaint by the ADJ, is to be considered as the date of institution
in this Court and that if the counsel wanted to contend otherwise, he should
on the next date come prepared therefor.
11. It was yet further enquired from the counsel for the plaintiff on 3 rd
March, 2017 that once according to the plaintiff also the Deeds were
executed by way of security for the loan availed, how would this suit for
cancellation of the Deeds be maintainable till the loan is satisfied or is held
in the arbitration proceedings to have stood satisfied.
12. Attention of the counsel for the plaintiff on 3 rd March, 2017 was
invited to Sections 91 and 92 of the Evidence Act, 1872 and it was enquired
as to how could the plaintiff be permitted to plead and prove the purport of
the registered documents to be something other than what it appears on the
face of the documents.
13. The counsel for the plaintiff today, on the aspect of limitation, has
argued i) that the defendant no.2 RFL filed the claim petition in the
arbitration proceedings in January, 2013; ii) that in the said claim petition,
though the defendant no.2 RFL pleaded creation of equitable mortgage by
deposit of title deeds of the said flat but while pleading transfer of certain
other properties title deeds with respect whereto were also deposited by way
of equitable mortgage in favour of the defendant no.2 RFL, mention was not
CS(OS) No.96/2017 Page 6 of 20
made of transfer of title in the subject flat; iii) that the plaintiff thus, from the
said claim petition could not know of the stand of the defendant no.2 RFL of
the title in the flat having stood transferred under the Deeds of Assignment
dated 9th August, 2012 and Supplementary Deed of Assignment dated 3 rd
September, 2012; iv) that the plaintiff filed his reply dated 14 th March, 2013
to the claim petition in the arbitration proceedings and to which a rejoinder
was filed by defendant no.2; v) that the plaintiff filed an amended reply
dated 18th February, 2014 in the arbitration proceedings to which a rejoinder
dated 19th March, 2014 was filed by the defendant no.2 RFL; vi) that it was
in the said rejoinder to the amended reply that the defendant no.2 RFL
pleaded that the subject flat was sold to third party and proceeds from which
sale was received by the defendant no.2 and which amount was adjusted in
the account of DCHL; vii) that thus the plaintiff came to know of the stand
of the defendant no.2 RFL qua the said Assignment Deeds for the first time
on 19th March, 2014 from the rejoinder to the amended reply of the plaintiff;
viii) that the plaintiff instituted the suit in the Court of the District Judge on
8th June, 2016; ix) that the Court of the ADJ ordered return of the plaint to
the plaintiff on 9th January, 2017; x) that the suit filed in this Court on 6 th
February, 2017 is within three years of 19th March, 2014 being the date of
the rejoinder of defendant no.2 to the amended reply of the plaintiff in the
arbitration proceedings.
14. I have enquired from the counsel for the plaintiff that though the
defendant no.2 RFL in the claim petition filed in January, 2013 may not
have expressly pleaded transfer of the subject flat but whether in the
CS(OS) No.96/2017 Page 7 of 20
computation of the amount claimed, adjustment of the price of the flat was
given/shown.
15. The counsel for the plaintiff states that no particulars in this respect
were given in the computation of the amount claimed also.
16. The senior counsel for the defendant no.2 RFL, on the aspect of
limitation, has argued i) that the plaintiff, while filing copies of the
arbitration proceedings has suppressed material pleadings and has today also
during the hearing misrepresented facts; ii) that though the counsel for the
plaintiff in his arguments has referred to the amended reply filed by the
plaintiff to the claim petition of the defendant no.2 RFL in arbitration
proceedings, but has suppressed the application filed by the plaintiff for
amendment of its reply; iii) a copy of the said application filed on behalf of
the plaintiff for amendment of its reply in the arbitration proceedings is
handed over in the Court and is taken on record; iv) that the plaintiff in the
said application dated 13th January, 2014 for amendment of its reply to the
claim petition in the arbitration proceedings has pleaded as under:
"N. It is therefore, humbly submitted that out of Rs.540 Crores
which were borrowed the Claimant from time to time, the
Respondents have already repaid Rs.440 Crores along with an
excess interest. The balance of Rs.100 Crores also stands
satisfied as the Claimant through the fraudulent transfer / sale
of the following immovable and movable assets worth Rs.280
crores (approximately):
i. Land and buildings at a best and prime location in India
viz. on the beach Road Vizag;
ii. Land and Buildings at Karimnagar;
iii. Land and buildings at Nellore;
iv. Land and buildings at Ananthapur;
v. Flat in Silver Arch Apartments Feroz Shah Road in
New Delhi;
vi. Property at Alwal, R R District, Hyderabad;
vii. 3 Crores shares of the Respondent No.1 Company;
viii ......................................................................"
(emphasis supplied)
v) that it is abundantly clear from the aforesaid plea of the plaintiff himself
on 13th January, 2014 that the plaintiff also understood the Deed of
Assignment as transferring his rights in the flat and was in fact pleading that
the amounts claimed by the defendant no.2 RFL in the arbitration
proceedings in fact stood paid to the defendant no.2 RFL by adjustment of
the price of the subject flat.
17. The counsel for the plaintiff has not controverted filing of the
application dated 13th January, 2014 for amendment.
18. The counsel for plaintiff however contends that the plaintiff has not
intentionally suppressed the same and did not file the same as the plaintiff in
the order dated 3rd March, 2017 was directed only to file copies of the
pleadings in the arbitration.
19. The aforesaid contention of the counsel for the plaintiff cannot be
accepted. It is duty of the plaintiff to file and disclose all relevant
documents along with the plaint. The occasion for this Court to direct so on
3rd March, 2017 arose because the plaintiff failed in fulfilling the
requirement of law. The direction to file pleadings in the arbitration
proceedings was in the context of what was urged on that date. The counsel
for the plaintiff was fully aware as to in what context the documents were
required to be filed i.e. to determine whether the plaintiff from the said
arbitration proceedings had notice of the claim of the defendant no.2 RFL
qua the Deeds of Assignment and whether the suit claim has been made
beyond three years therefrom. The counsel for the plaintiff fully
understanding the same has made the arguments as recorded above and in
which arguments the aforesaid application for amendment is a necessary
ingredient and which was suppressed.
20. The senior counsel for the defendant no.2 relies on S.P.
Chengalvaraya Naida (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs.
(1994) 1 SCC 1 to contend that the plaintiff, on account of such suppression
alone, is liable to be non-suited.
21. The senior counsel for the defendant no.2 RFL has further argued i)
that the plaintiff in the plaint as originally filed before the Court of the ADJ
did not mention the supplementary Deed of Assignment dated 3 rd
September, 2012 and did not claim any relief with respect thereto; ii) that the
plaintiff, in the plaint filed in this Court, for the first time introduced the
Supplementary Deed of Assignment dated 3rd September, 2012; iii) that the
plaintiff, in para no.19 of the plaint as filed in this Court admits execution of
Deeds of Assignment; iv) that the plaintiff, in para 20 of the plaint as filed in
this Court, admits execution of Deeds of Assignment; v) that the plaintiff
thus, on the date of execution on 9th August, 2012 and 3rd September, 2012
of the Deed of Assignment and supplementary Deed of Assignment
respectively, was fully aware of the same assigning the title of the plaintiff
in the flat in favour of the defendant no.1 BCCSPL; vi) that the plaintiff, in
para no.30 of the plaint as filed in this Court has not pleaded cause of action
for the suit to have accrued to him when he was allegedly unlawfully
induced or on receipt of rejoinder dated 19th March, 2014 to the amended
reply of the plaintiff in the arbitration proceedings, but has claimed the cause
of action to have accrued to him on 21 st April, 2016 when he was sought to
be dispossessed from the subject flat; vii) that the plaintiff has falsely argued
before this Court that the cause of action accrued on receipt of rejoinder
dated 19th March, 2014 in the arbitration proceedings and which is not the
pleaded case in the plaint. Reliance is placed on Ramti Devi Vs. Union of
India (1995) 1 SCC 198.
22. The plaintiff, in the plaint, as aforesaid, has pleaded that the plaintiff
was induced into execution of the Assignment Deeds on the representation
of defendant No.2 RFL that the same were merely to secure the loan and a
mere formality and not intended to be acted upon as assigning title of the
plaintiff in the flat aforesaid in favour of defendant No.1 BCCSPL. The
plaintiff has further pleaded and the counsel for the plaintiff has argued that
the Deeds of Assignment divesting title of the plaintiff in the flat are a sham.
On the said pleas, reliefs aforesaid are claimed. It is further the plea that the
Deeds of Assignment were for a sum of Rs.7,13,70,000/- whereas the
market value of the subject flat is approximately Rs.10 crores.
23. However contrary thereto, in the application dated 13th January, 2014
supra, the plaintiff has pleaded that the loan due to defendant no.2 RFL
stood repaid by transfer / sale of the subject flat and adjustment of the price
thereof. The same shows that the plaintiff understood the Deeds of
Assignment as per their terms and there was no misunderstanding on the part
of the plaintiff. The plaintiff, in the application dated 13th January, 2014 did
not plead that though Deeds of Assignment were executed, but were not to
be acted upon or were a sham. If it was so, there would have been no
question of repayment of the loan by adjustment of the price of the subject
flat.
24. It is a settled principle of law that a party to a litigation cannot be
permitted to blow hot and cold and take inconsistent stands at different
points of time to serve its purpose at that time. The plaintiff, when loans
were sought to be recovered from him, to support his defence of the loan
having been repaid, pleaded adjustment of consideration for assignment of
title in the subject flat in repayment of loan. The plaintiff having taken such
plea, is now barred from challenging the assignment. There is no
explanation also whatsoever for such inconsistent stands. Rather, the
plaintiff concealed his earlier stand from this Court and indeed portrayed a
false case of the defendant No.2 RFL having pleaded assignment in
rejoinder aforesaid and pleaded that as the cause of action for the suit.
25. Now that it emerges that it was so the stand of the plaintiff himself,
the cause of action for the suit disappears and the plaint is liable to be
rejected on this ground alone.
26. As far as the plea of consideration of Rs.7,13,70,000/- for assignment
being insufficient as the market value is Rs.10 crores, per Section 25 of the
Contract Act, 1872 an agreement is not void merely because the
consideration is inadequate. In fact the senior counsel for the defendant
No.2 RFL disputed the market price of the subject flat to be Rs.10 crores and
without prejudice to his contentions suggested the plaintiff can still purchase
it for the suggested price of over Rs.10 crores.
27. On the aspect of limitation, the counsel for the plaintiff, while not
disputing the position in law that the date of institution of the suit would be
the date of institution in this Court and not the institution in the Court of the
District Judge from where the plaint was returned, contends that the suit
filed in the Court of District Judge on 8th June, 2016 was within three years
from 13th January, 2014, being the date of the application for amendment of
the reply supra filed by the plaintiff.
28. The aforesaid contention of the counsel for the plaintiff suffers from
inherent inconsistency. It has been held in Sri Amar Chand Inani Vs.
Union of India (1973) 1 SCC 115 that suit instituted in a Court, after return
of plaint by the Court in which the suit was earlier instituted, is not a
continuation of the suit plaint wherein was returned and the fact that the
plaintiff may take advantage of Section 14 of the Limitation Act, 1963
would not affect the question of the date of institution. To the same effect is
Harshad Chimanlal Modi (II) Vs. DLF Universal Ltd. (2006) 1 SCC 364
where it was further held that presentation of plaint in correct Court after its
return is not a „transfer‟ and the correct Court cannot take up proceedings
from the stage at which they stood in the wrong Court, since the proceedings
were void ab initio. Again, in Oil and Natural Gas Corporation Limited
Vs. Modern Construction and Company (2014) 1 SCC 648, it has been held
that after return of plaint, presentation thereof before Court of competent
jurisdiction amounts to institution of a fresh suit.
29. Moreover, the plaintiff is wrongly counting the limitation as from the
date of the application i.e. 13th January, 2014. 13th January, 2014 is the date
when the plaintiff applied for amendment of his reply, to take such a plea in
the arbitration proceedings. The plaintiff in the application dated 13 th
January, 2014 did not state that he had learnt of the true nature of the Deeds
of Assignment on that date only. Rather, the ground taken for seeking
amendment to take the said plea was of the said fact having remained to be
pleaded in the reply filed earlier. In law, amendments to pleadings relate
back to the date of original filing of the pleading amended. Reference can
be made to L.C. Hanumanthappa Vs. H.B. Shivakumar (2016) 1 SCC 332
and Sampath Kumar Vs. Ayyakannu (2002) 7 SCC 559.
30. It thus follows that the plaintiff, from the date of execution of the
Deeds on 9th August, 2012 and 3rd September, 2012 understood the true
nature thereof. Not only would the plaintiff thus have no cause of action for
the relief of cancellation and injunctions claimed in the suit, but the cause of
action in such case would arise on 9th August, 2012 and 3rd September, 2012
and the suit filed on 8th June, 2016 in the Court of the District Judge would
also be barred by time.
31. Article 58 of the Schedule to Limitation Act, for a suit to obtain any
other declaration (than for which provision is made in Articles 56 & 57
which are not applicable) provides a limitation of three years commencing
from the date when the right to sue "first accrues". Article 59, for a suit to
cancel or set aside an instrument or for rescission of a contract provides a
limitation of three years commencing from when the facts entitling the
plaintiff to have the instrument cancelled or to have a contract set aside "first
become known" to the plaintiff. The plaintiff here, not only has in earlier
proceeding aforesaid admitted knowledge of correct nature of Assignment
Deeds which are sought to be cancelled / set aside, from the date of
execution thereof but even otherwise, from the date on which cause of action
according to plaintiff has accrued, has filed suit in this Court beyond the
period of three years.
32. Though in view of the above, need is not felt but for the sake of
completeness, I may record that I have enquired from the counsel for the
plaintiff as to how the plaintiff can take the benefit of the institution of the
suit in the Court of the District Judge when the counsel for the plaintiff
agrees with the legal position that the suit would be deemed to have been
instituted on the date of institution in this Court.
33. The counsel for the plaintiff states that the plaintiff in such case would
have benefit of Section 14 of the Limitation Act.
34. Having not found any plea to the said effect in the plaint and the plaint
being also not accompanied with any application under Section 14 of
Limitation Act, it has been enquired from the counsel for the plaintiff.
35. The counsel for the plaintiff agrees that in the plaint as filed in this
Court, neither is there any reference to Section 14 of the Limitation Act nor
have ingredients thereof been pleaded. He however contends that the
plaintiff can invoke the same and the said aspect is to be considered after
issuance of summons of the suit.
36. I am unable to agree on the said aspect also.
37. For a plaintiff to invoke Section 14 of the Limitation Act, it is
necessary to plead that the plaintiff has been prosecuting with due diligence
another civil proceedings against the defendant relating to the same matter in
issue and in good faith and that the Court in which the said civil proceedings
were pending, from defect of jurisdiction or other cause of like nature, is
unable to entertain it. Without the plaintiff pleading so, the suit cannot be
entertained on an oral plea of the plaintiff being entitled to invoke Section
14 of the Limitation Act.
38. The ingredients required to be satisfied/established before invoking
Section 14 of the Limitation Act, of due diligence and good faith, are
ingredients of fact and proof whereof cannot be permitted without a pleading
to that effect. Without any pleading of the ingredients of Section 14 of the
Limitation Act, the opposite party has no opportunity to rebut the same.
Without a plea of such ingredients in the pleadings, the question of framing
any issue also would not arise and evidence cannot be led beyond the issues.
Supreme Court in State of Bombay Vs. Ram Krishna Govind Bhanu AIR
1958 SC 767 held that the burden lies on the plaintiff to satisfy the
conditions of Section 14 and further held the Courts below in that case to be
in error in expecting the contesting defendants to adduce evidence to the
contrary. It was reasoned that when the plaintiff has not satisfied the initial
burden which lay on him to prove his case within Section 14, the burden
would not shift to the defendant to show to the contrary.
39. A Full Bench of the Madras High Court in Sri Kasikananda
Gnanacharya Swamigal Vs. Saravana Perumal Pillai AIR 1941 Mad 319
held that when a person is claiming the benefit of Section 14 of the
Limitation Act, he must prove that he acted in good faith in instituting the
earlier proceedings; Order VII Rule 6 of CPC states that where the suit is
instituted after the expiration of the period prescribed by the law of
limitation, the plaint shall show the ground upon which exemption is
claimed; this must mean that when a suit has been filed beyond the period
allowed by law, the burden of proving that there is ground for exemption
from limitation is on the plaintiff. Supreme Court also in Ittyavira Mathai
Vs. Varkey Varkey AIR 1964 SC 907 proceeded on the premise that if the
suit is barred by time, when it is instituted in the Court, a plea of Section 14
of the Limitation Act should be taken in the plaint. The same is the flavour
of Ketan V. Parekh Vs. Special Director, Directorate of Enforcement
(2011) 15 SCC 30 where an application under Section 5 of the Limitation
Act was not permitted to be treated as under Section 14 of the Limitation
Act. The Privy Council also as far back as in Lala Kalyan Mal Vs. Ahmad-
Ud-Din Khan AIR 1934 Privy Council 208, though in the context of Section
18 of the Limitation Act, held that where a plaint is filed after the period of
limitation in respect of a particular relief and the plaintiff relies upon Section
18 of the Limitation Act and contends that by reason of the fraud of the
other party he was prevented from instituting the suit within time, the
provision of Order VII Rule 6 of CPC must have been complied.
40. I am thus of the view that in the absence of any ground of exemption
under Section 14 of the Limitation Act being pleaded, the plaintiff would not
be allowed to show the ground of exemption at the trial by putting in
evidence any document to that effect. The High Court of Andhra Pradesh
also in Dondapati Puttama Naidu Vs. Perugu Venkata Reddi (1996) 2
Andh WR 206 held that it is obligatory under Order VII Rule 6 of CPC for
the plaintiff to mention all the necessary circumstances which entitle him to
claim exclusion of the time spent in prosecuting his claim in a wrong Court
and in the absence thereof the plaint cannot be entertained.
41. The counsel for the plaintiff then states that the plaintiff can always
amend the plaint.
42. A suit which is not maintainable today and maintainability whereof is
being considered today after putting the plaintiff to notice on earlier date,
cannot be entertained to enable the plaintiff to invoke Section 14 of the
Limitation Act. Though on 3rd March, 2017 also, the counsel for the
plaintiff was put to notice on this aspect but has not taken any steps.
43. The senior counsel for the defendant no.2 RFL is also correct in his
submission that the plaint, on a meaningful reading thereof does not disclose
any cause of action. The plaintiff admits to execution of the Deeds of
Assignment and has been unable to disclose any cause of action for setting
aside thereof. Reliance placed on Ramti Devi supra is apposite. It was held
therein that since the sale deed was executed for valuable consideration to
discharge pre-existing debts and is a registered document, Section 92 of the
Evidence Act prohibited adducing oral evidence to contradict the terms of
the recital therein and that the suit necessarily had to be laid within three
years from the date on which the sale deed was executed and registered.
44. The counsel for the plaintiff lastly contended that even if the plaint is
not to be entertained qua the reliefs claimed of cancellation of the Deeds of
Assignment, the plaintiff being in possession of the property, the possession
of the plaintiff is to be protected.
45. Needless to state, the senior counsel for the defendant no.2 RFL
opposes.
46. The plaintiff, in the arbitration proceedings in response to the claim of
the defendant no.2 RFL having pleaded transfer of the subject flat and
adjustment of price thereof in repayment of the loan account, cannot now
seek to protect its possession. Even otherwise, the plaintiff from his conduct
as detailed hereinabove has disentitled himself to any discretionary relief.
47. The associate counsel for the plaintiff mentioned the matter
subsequently and stated that "the plaintiff could not have pleaded Section 14
of the Limitation Act as this was a case of return of plaint and not institution
of fresh suit".
48. I am unable to understand the purport of the said submission. The
plaintiff, as aforesaid, before this court has not filed the plaint which was
returned to him and has filed a fresh plaint. The plaintiff therein could have
pleaded Section 14 of the Limitation Act. Alternatively, even if the plaintiff
were to file the returned plaint, the plaintiff could have always filed an
application invoking Section 14 of the Limitation Act. Be that as it may, in
view of the other reasons given above, no reconsideration is called for.
49. I therefore hold the plaint to be not disclosing any cause of action for
the reliefs claimed of cancellation of the registered Deed of Assignment
dated 9th August, 2012 and registered supplementary Deed of Assignment
dated 3rd September, 2012 and the relief claimed to be also barred by time as
per averments in plaint and documents filed therewith and the plaintiff for
the reasons aforesaid is not entitled to the relief of permanent injunction.
Need to admit / entertain the suit is thus not felt.
50. The suit is dismissed. The plaintiff, towards costs of the suit and for
having indulged in abuse of the process of the Court and suppression of
material documents is also burdened with cost of Rs.1 lac payable to the
defendant no.2 RFL within four weeks hereof.
Decree sheet be prepared.
RAJIV SAHAI ENDLAW, J.
APRIL 17, 2017/„gsr‟
(corrected & released on 10th May, 2017)
