Delhi High Court
Asha Wazir vs Apex Apartments Pvt. Ltd. & Ors. on 26 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2296/2013
ASHA WAZIR ..... Plaintiff
Through: Mr. Rajan Tyagi, Advocate with
Mr. Desh Deepak Tyagi,
Advocate.
versus
APEX APARTMENTS PVT. LTD. & ORS. ..... Defendants
Through: Mr.Arun Vohra with Ms.Aakriti Vohra,
Advocates.
% Date of Decision: 26th September, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present suit has been filed for specific performance of contract,
mandatory and permanent injunction and damages in respect of allotment
letter and agreement to sell both dated 28th September, 1989, in respect of Flat
No. T-2, 3rd Floor, at No.E-480, Greater Kailash-II, New Delhi for a sum of
Rs. 8,55,000.
2. This Court vide order dated 17th November, 2014 framed a preliminary
issue and ordered as under:
"1. Whether the suit is barred by limitation? OPD
xxxx xxxx xxxx xxxx
It is agreed by the learned counsel for the parties that issue
No.1 be treated as a preliminary issue. They do not want to lead
evidence on this issue. ...."
3. With consent of the parties, the issue of limitation has been taken up for
hearing.
4. The relevant facts of the present case are that in pursuance to
advertisements issued by defendant No.1 for sale of sixteen flats to be
constructed on plot No.E-480, Greater Kailash-II, New Delhi, the father of the
plaintiff late Mr. S.L. Shakdhar booked a residential flat on third floor
admeasuring 1200 sq.ft. on 28th September, 1987 for a total consideration of
Rs.8,55,000/- out of which, an amount of Rs.85,500/- was paid as earnest
money.
5. On 28th September, 1987, the defendants issued an Allotment Letter-
cum-Agreement to Sell (hereinafter referred to as 'Allotment Agreement')
wherein it was agreed between the parties that the construction shall be
completed by 30th September, 1989.
6. In accordance with the schedule of payment stipulated in the said
Agreement to Sell, the plaintiff's father paid installments to the defendant
No.1 totalling to Rs.7,26,750/- till 05th November, 1988. The details of the
payments made by the plaintiff's father are reproduced hereinbelow:-
Cheque No. Date Amount Drawn On
495954 28.09.1987 85,500/- State Bank of India
495958 28.10.1987 85,500/- State Bank of India
758487 27.12.1987 85,500/- State Bank of India
495959 23.01.1988 35,500/- State Bank of India
758491 23.01.1988 50,000/- State Bank of India
758492 22.01.1988 85,500/- State Bank of India
495965 15.03.1988 1,28,250/- State Bank of India
Receipt No. Date Amount
AAPL/SALES/87/165 05.11.1988 85,500/-
AAPL/SALES/87/152 28.05.1988 85,500/-
7. It is averred in the plaint that the plaintiff's father shifted to Bombay to
reside with the plaintiff due to which he could not keep a track of the
construction and the completion of the flat purportedly allotted to him.
8. On 18th May, 2002, the plaintiff's father died at Delhi and since he left
behind a Will, the same was probated by the High Court of Bombay on 26 th
September, 2003 whereby the suit property devolved upon the plaintiff.
9. The defendants in their written statement have contended that initially a
provisional allotment of Unit No. T-2 at third floor was made in favour of the
plaintiff. Later, the allotment of the said unit was changed to G-2 on the
ground floor.
10. Mr.Arun Vohra, learned counsel for the defendants states that that the
construction of building was completed on 30 th September, 1989 as per
contract. He states that since the plaintiff failed to pay the last two instalments
i.e. the 9th and 10th instalments in accordance with the schedule of payment,
the allotment in favour of the plaintiff was cancelled on 3 rd May, 1990. The
letter dated 03rd May, 1990 is reproduced hereinbelow:-
"Ref.AAPL/G2/E-480/39/90 May 3 1990
Shri S.L. SHAKDHAR,
2, Palam Marg,
Vasant Vihar,
New Delhi.
Dear Sir Re: Termination of Allotment Letter dated 28 Sept.
1987.
Please refer to the installment call notices sent to you and
numerous communications calling upon you to make the payments
as per the agreed Schedule of the Allotment Letter dated 28
September 1987 between us, wherein it was specifically agreed that
" Time for payment is to be treated as the essence of the Agreement"
.
You have not paid the installment no.9 for Rs.85,500/- and
have committed default of the agreed terms of the Allotment Letter
dated 28 September 1987. You have further not given any response
to the communications made with you.
In spite of all our best efforts and utmost cooperation, you
have failed to make the agreed payments as per the Allotment
Letter, and have breached the terms and conditions of the above
said Allotment Letter agreed to by you. In pursuance to Clause 2 of
the Allotment Letter dated 28 September, 1987, we therefore
cancel/terminate the allotment of the flat no.G2 made to you under
the said Allotment Letter. As provided in clause 2 of the said
Allotment Letter we have forfeited your 20% of the agreed cost of
the flat.
Please call upon us after making a prior appointment to
collect the amount lying in your account after necessary deductions
of 20% as provided in the above said Allotment Letter.
Very truely yours,
Sd/-
ADITYA VIKRAM VAID
Director"
11. Mr. Vohra emphasises that there is an admission on behalf of the
plaintiff that her father i.e. the original applicant had moved to Bombay and
occasionally came to Delhi due to which he could not keep a track of the
construction and completion of the flat.
12. Learned counsel for defendant states that the cause of action for filing
the present suit arose on 30th September, 1989, as the said date was stipulated
in the Agreement as the date for performance. In support of his contention, he
relies on Clause 4 of the Allotment Agreement, which is reproduced
hereinbelow:-
"4. The Building is proposed to be completed barring unforeseen
circumstances by 30th September, 1989 (Subject to usual force
majeure clause)."
13. In the alternative, learned counsel for defendant contends that as on 24 th
August, 2007, the plaintiff had sent a legal notice to the defendants alleging
that they had been delaying the transfer of the flat on false grounds and had
no intention of transferring the flat in favour of the plaintiff, the cause of
action for filing the suit arose at least on said date. He states that as the
present suit has not been filed within three years of the said date, it is barred
by limitation.
14. Per contra, Mr.Rajan Tyagi, learned counsel for plaintiff states that
though the required payments in accordance with the schedule of payment
were made by the plaintiff, yet the defendants did not complete the
construction by 30th September, 1989.
15. Learned counsel for plaintiff points out that on coming to know that the
construction of the third floor had not yet been completed, the plaintiff vide
communication dated 20th April, 2004 enquired as regards the status of the
construction from the defendants and was informed that the same was held up
due to a Court case pending at Delhi. Mr. Tyagi states that the defendants in
response to the said communication vide their lawyer's letter dated 27th April,
2004 requested the plaintiff to provide a certified copy of the Death
Certificate as well as the Probate Certificate to proceed in the matter.
Subsequently, the plaintiff enquired through her attorney and came to know
that there was no sanction for construction of the third floor.
16. Learned counsel for plaintiff states that the averment made by the
defendants in their written statement to the effect that the construction of the
building was complete by 30th September, 1989 is incorrect as the building
remained sealed from 1991 till 2001. He states that delay in construction of
flat has deprived the plaintiff of the benefits of her property. He relies upon
the statement of defendant No.2-Mr. Aditya Vikram Vaid recorded by the
Joint Assessor and Collector, MCD in 2005 to show that the building was not
complete even on 3rd February, 2005 much-less in 1989. Learned counsel for
plaintiff emphasises out that the said statement was made by defendant so that
no tax was levied on the incomplete building. The statement of Sh. Aditya
Vikram Vaid is reproduced hereinbelow:
"Property No.E-480, G.K.II
Shri Aditya Vikram Vaid appeared in connection with the
rectification and finalization of the pending proposal and informed
that the property consisting of basement on Front side (West), GF,
FF, having CA of 3405 sft. (each floor) and 2520 sft. On the SF
and rear basement floor (East Side) having CA of 3618 sft., total
16353 sft. And out of this, they sold out 2991 sft. at rear basement
(East Side). CA of 627 sft. rear basement (east side), 3405 sft.
(GF), 3405 sft. FF and 2520 sft. SF-total 9957 sft. was incomplete
and is still incomplete and has never been in habitable condition
since there is no flooring, no doors, windows etc. Since the
construction is un-finished hence is not fit for living purpose. Only
3405 sft. basement (LGF) on Front Side (West) is under self
residential use and tax should be levied only on this portion
only...."
17. Consequently, according to Mr.Rajan Taygi, the stage for making the
last two instalments has not arrived till date and the present suit is within
limitation.
18. In support of his contention, learned counsel for plaintiff relies on the
judgment of this Court in L.M. Nagpal & Ors. Vs Fatehji & Co. & Ors.,
2013 (138) DRJ 464 wherein it has been held as under:-
"18. In this regard, it may also be noticed that though the written
Agreement to Sell between the parties did fix a date for
performance but the parties subsequently by their writings gave a
go-by to the date so fixed for performance and extended it from
time to time. The appellants/plaintiffs plead that it was still further
extended orally. The senior counsel for respondents/defendants
has been unable to contend that there was any bar to such oral
extension of the time fixed for performance. Once it is held that it
was permissible for the parties to after some written extensions of
the time fixed for performance, orally/verbally extend the time for
performance, it becomes a matter of evidence whether they did
orally/verbally extend the time for performance till after the
receipt of the permissions from the L&DO and Income Tax
Department. If the appellants/plaintiffs prove such a oral/verbal
agreement or representations, then the first part of Article 54 of
the Schedule to the Limitation Act would cease to apply and the
time from which the limitation of three years prescribed for filing
a suit for specific performance would commence would be from
the date when the appellants/plaintiffs had notice that
performance is refused and which date as per the averments in the
plaint is within three years prior to the institution of the suit.
19. The Supreme Court in Panchanan Dhara v. Monmatha Nath
Maity, (2006) 5 SCC 340 has held that the question as to whether
a suit for specific performance of contract will be barred by
limitation or not would not only depend upon the nature of the
agreement but also the conduct of the parties and also as to how
they understood the terms and conditions of the agreement. It was
further held that even where the time is fixed for performance of
the Agreement of Sale, if any case of extension of time for
performance is pleaded and established, the suit would not be
barred by limitation. It was yet further held that extension of time
for performance of a contract is not necessarily to be inferred
from written document and it could be implied also; the conduct of
the parties in this behalf is relevant and once a finding of fact has
been arrived at that the time for performance of the contract had
been extended by the parties, the time to file a suit shall be deemed
to start running only when the plaintiff had notice that
performance had been refused. It was yet further held that if
certain statutory formalities are required to be complied with or
permissions required to be obtained, a Deed of Sale cannot be
registered till the said requirements are complied with and in a
given situation the vendor may not be permitted to take advantage
of his own wrong in not taking steps for complying with the
statutory provisions and then to raise a plea of limitation.
Reference was made to Section 63 of the Indian Contract Act,
1872 providing that every promisee may extend time for
performance of the contract and it was held that such an
agreement to extend time need not necessarily be reduced to
writing and may be proved by oral evidence or by conduct
including forbearance on the part of the other party. A question of
limitation, it was held, can be decided only after taking evidence
and recording finding as to the date on which the plaintiff had
such notice.
19. Having heard the learned counsel for parties, this Court is of the view
that the plaintiff has erroneously presumed that the limitation for filing a suit
for specific performance commences when the defendant offers to hand over
possession of the suit property to the plaintiff. The plaintiff's presumption
would be apparent from the para in the plaint pertaining to the cause of action.
The said para is reproduced hereinbelow:-
" 33. That the cause of action for the suit originates on
28.09.1987 when the father of the plaintiff obtained the allotment
letter agreement in respect of the suit property by paying
Rs.85,000/- having believed and acted upon the
representation/offer/scheme of the defendants. The cause of
action had further accrued on the dates the instalments were paid
to the defendants under receipts. The cause of action thereafter
arose because of death of Shri S.L. Shakdhar and on obtaining the
Probate certificate granted by Bombay High Court whereby the
suit property devolved on the plaintiff. The cause of action further
arose on different dates and times when the communications were
addressed to the defendants about the plaintiff becoming the
claimant of the suit property. Since the suit property has not been
handed over to the plaintiff, the cause of action subsists and
continuing day by day hence the suit."
(emphasis supplied)
20. In fact, the limitation in a suit for specific performance of contract is
three years and it commences from the date fixed for the performance and in
case no such date is fixed then, in that cases, when the plaintiff has noticed
that performance is refused. Article 54 of the Schedule of the Limitation Act
reads as under:-
"54 For specific Three years The date fixed for
performance of a the performance,
contract. or, if no such date
is fixed, when the
plaintiff has notice
that performance is
refused."
21. This Court is of the view that though the date for completion of the
Allotment Agreement was stipulated in Clause 4 of the said Agreement as 30th
September, 1989, yet the said date cannot be taken as the date of cause of
action for filing the present suit as subsequent thereto, the plaintiff at the
instance of the defendants had supplied certain documents like Death
Certificate, Probate Certificate etc. As held in L.M. Nagpal (supra), the date
for performance can be waived by the parties. Consequently, in the present
case, the first Part of Article 54 of the Schedule II of the Limitation Act would
not apply and the time from which the limitation of three years prescribed for
filing a suit for specific performance would commence would be the date
when the plaintiff had notice that performance is refused.
22. In the present case the plaintiff vide legal notice dated 24th August,
2007 had alleged that the performance of the Allotment Agreement had been
refused by the defendants. The relevant portion of the plaintiff's legal notice
dated 24th August, 2007 is reproduced hereinbelow:-
"4. That you have been delaying the transfer of the said flat on
false, frivolous and flimsy grounds and it seems that you have no
intention of transferring the flat in favour of my client and neither
are you replying to the correspondence of our client."
23. Keeping in view the aforesaid legal notice dated 24th August, 2007, this
Court is of the opinion that it constitutes an admission on behalf of the
plaintiff that the defendants had refused performance on 24 th August, 2007.
In any event, there is no averment in the plaint that the time for the said
performance had been extended by the parties either orally or in writing
beyond 24th August, 2007.
24. Since the present suit has been filed on 12th November, 2013, the same
is barred by limitation. Consequently, the present plaint is rejected on the
ground of limitation.
MANMOHAN, J
SEPTEMBER 26, 2017
dk
