Delhi High Court
Param Preet Singh vs Devender Kumar Relan & Ors on 28 February, 2019
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 08th February, 2019
% Judgment pronounced on : 28th February, 2019
+ RFA(OS) 78/2018, CM APPL 47107/2018
PARAM PREET SINGH ..... Appellant
Through Mr. J.C. Mahindro with Mr.
Shubham Aggarwal, Advocates.
versus
DEVENDER KUMAR RELAN & ORS ..... Respondent
Through Mr. Mukul Gupta & Mr. Atul Y.
Chitale, Sr. Advocates with Ms. Tanvi
Kakar & Mr. Himanshu Bajaj,
Advocates for R-1 to R-10.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J.
1. The present appeal is directed against the judgment dated 05.09.2018
by which an application filed by the appellant under Section 14 of the
Limitation Act has been dismissed and consequently, the suit filed by
the appellant has been dismissed being barred by limitation.
2. The facts which have given rise to filing of the present appeal are that
the appellant (hereinafter referred to as the 'plaintiff') had filed a suit
for specific performance of an agreement dated 04.10.2010 with
respect to purchase two properties bearing no.D-54, Kalkaji, New
Delhi and plot no.75, Sainik Farms, Delhi, for a total sale
consideration of Rs.6.34 crores against the defendants/respondents
herein (hereinafter referred to as the 'defendants'). Alongwith the
RFA(OS) 78/2018
plaint, an application was filed under Section 14 of the Limitation Act
for exclusion of the time spent in pursuing the application filed under
Order I Rule 10 of the Code of Civil Procedure (in short 'C.P.C.') in
suit being CS(OS) 343/2018. The plaintiff agreed to purchase two
properties bearing no.D-54, Kalkaji, New Delhi and plot no.75, Sainik
Farms, Delhi for a total sale consideration of Rs.6.34 crores. The
plaintiff admittedly paid a sum of Rs.31 lacs in cash and agreed to pay
the balance sale consideration after the properties were mutated in
favour of the defendants, within 8 months from 04.10.2010.
3. On account of disputes between the parties, an FIR was registered
against the defendants on 19.01.2013 under Sections 420, 406, 120-
B/34 of IPC, on the basis of complaint filed by the plaintiff dated
12.08.2011.
4. In the year 2013, a suit being CS (OS) 252/2013 was instituted for
specific performance by one Yogesh Kumar in respect of plot no.75,
Sainik Farms, Delhi being one of the properties subject matter of the
agreement entered into between the parties herein dated 04.10.2010.
On 13.05.2013, the appellant herein filed an application under Order I
Rule 10 CPC in the suit filed by Yogesh Kumar for being impleaded
as a defendant. The application filed by plaintiff was dismissed by the
Joint Registrar by an order dated 01.02.2016. The order of the Joint
Registrar was assailed by filing O.A. no.97/2016, which was
dismissed by order dated 05.09.2017 passed by the learned Single
Judge of this Court. Thereafter, the plaintiff filed a suit being CS (OS)
343/2018 for specific performance alongwith an application under
Section 14 of the Limitation Act. By the impugned order dated
RFA(OS) 78/2018
05.09.2018, the application was rejected which has led to the filing of
the present appeal.
5. Mr. J.C. Mahindro, counsel for the appellant submits that the
impugned order is contrary to law and facts. He further submits that
the learned Single Judge has failed to appreciate that the appellant was
prosecuting his application under Order I Rule 10 CPC diligently and
when the said application was dismissed by the Joint Registrar, he
filed an appeal before the learned Single Judge. Mr. Mahindro further
contends that although the learned Single Judge dismissed the appeal
but liberty was granted to seek an appropriate remedy in accordance
with law with an application under Section 14 of the Limitation Act,
which was to be considered on its own merit. It has also been
contended that in case, the application under Order I Rule 10 CPC was
allowed, the appellant would have filed a counter claim and thus, it
was not necessary for him to seek independent remedy. It is contended
that the learned Single Judge has not appreciated the fact that there
was no lapse, negligence or willful default of the appellant, who had
acted under the legal advice and approached the Court in 2013 by
filing an application under Order I Rule 10 CPC when his claim was
well within the period of Limitation.
6. Per contra, Mr. Gupta and Mr. Chitale, learned Senior Counsels
appearing for the respondents submit that there is no infirmity in the
order passed by the learned Single Judge. The appellant failed to fulfill
the five conditions before applying Section 14 of the Limitation Act as
laid down in the case of M/s. Consolidated Engineering Enterprises
Vs. The Principal Secretary (Irrigation Department) & Ors., 2008
RFA(OS) 78/2018
(7) SCC 169, as the earlier proceedings were not rejected due to defect
of jurisdiction or any similar cause nor the earlier proceedings and the
subsequent proceedings related to the same matter and issue. There
was also no due diligence in prosecuting the application under Order I
Rule 10 CPC by the appellant herein. In the absence of appellant
having failed to safeguard his own rights, the application was rightly
rejected by the learned Single Judge.
7. We have heard learned counsels for the parties and given our
thoughtful consideration to the matter. Desirous of purchasing two
properties at Kalkaji and Sainik Farms, a receipt/agreement was
entered into between the parties on 04.10.2010, which reads as under :
"RECEIPT/AGREEMENT 04/10/2010 We, Pushpa
hurriya, Saroj Bala, Chander Kanta, Savita Girdhar, D/o
Late Sh. Bhagwan das Kalra, R/o D-54, Kalkaji, Delhi all
four sisters legal heirs of Late Sh. Bhagwan das Kalra
have received a sum of Rs.3100000/- (thirty one lacs) in
cash from (sic) Sh. P.P. Singh R/o A-6 Shivalik, N. Delhi
through our husbands as advance against the Sale of our
both Properties, entire house D54, Kalkaji and entire
Property 4 Bighas 8 Biswas in Khasra no.288, Khanpur
(Sainik Farms), N. Delhi out of settled Sale
Consideration for both above said Properties is
Rs.63400000/- (Six Crores thirty four Lacs) balance
Payment we will receive at the time of transfer both
Properties in the name of P.P.Singh (buyer) after
mutation formalities are completed which is Pending,
within 8 months from today 04/10/10 Photostat Papers
self attested has been given to the buyer."
8. The plaintiff filed a police complaint on 12.08.2011 which resulted in
registration of an FIR on 19.01.2013, the defendants were even denied
anticipatory bail. Learning that one Yogesh Kumar has instituted a suit
RFA(OS) 78/2018
for specific performance with respect to one of the properties, subject
matter of the agreement dated 04.10.2010, the appellant herein made
an application under Order I Rule 10 CPC. The application for
impleadment was objected to by Yogesh Kumar, which is evident
upon reading of para-2 of the reply dated 12.02.2014, which we
reproduce below :
"2. That the present application filed by and on behalf of
the Applicant is not maintainable in as much as the
grievance of the Applicant cannot be adjudicated by way
of the present proceedings. As per the allegations of the
Applicant, he had also entered into an Agreement to Sell
with the defendants herein and had paid some amount to
them, ad advance payment. It is submitted that by getting
himself impleaded in the present proceedings, it seems
that the Applicant wants adjudication of his alleged rights
over the property in dispute. It is submitted that the
Applicant's alleged rights qua the property in dispute can
not be adjudicated in the present proceedings in as much
as the only remedy for the same would be filing of a suit
for specific performance independently against the
defendants herein. In view of the same, the present
application is liable to be dismissed with heavy costs."
(Emphasis supplied)
9. The appellant at that stage also did not consider it appropriate to seek
appropriate remedy. The application under Order I Rule 10 was
dismissed by the Joint Registrar and appeal filed before the learned
Single Judge was also dismissed. Counsel for the appellant has
contended that although the appeal was dismissed but the learned
Single Judge has granted liberty to seek appropriate remedy alongwith
an application under Section 14 of the Limitation Act. The operative
part of the order dated 05.09.2017 passed by learned Single Judge
reads as under :
RFA(OS) 78/2018
"However, the appellant is given liberty to file
appropriate proceedings in accordance with the law. If
the appellant desires, he may file an application under
Section 14 of the Limitation Act along with the
substantive proceeding that he wishes to file. Needless to
say, the said application would be considered on its own
merit by the concerned Court. The rights and contentions
of all the parties are left open."
10. Reading of the aforesaid observation makes it clear that there was no
consent on behalf of the defendants, who had appeared in the matter
nor a blanket liberty was granted but it was observed that in case the
appellant desired to file an application under Section 14 of the
Limitation Act alongwith the substantive proceedings, he may do so.
With the rider that the said application would be considered on its own
merit by the concerned Court, the rights and contentions of all the
parties were left open. In our view, the application under Section 14 of
Limitation Act was to be decided on merits and not on account of any
liberty granted by the learned Single Judge.
11. For the sake of convenience, we reproduce Section 14 of the
Limitation Act :
"Section 14: Exclusion of time of proceeding bona fide
in Court without jurisdiction. --
(1) In computing the period of limitation for any
suit the time during which the plaintiff has been
prosecuting with due diligence another civil
proceeding, whether in a court of first instance or
of appeal or revision, against the defendant shall be
excluded, where the proceeding relates to the same
matter in issue and is prosecuted in good faith in a
court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.
RFA(OS) 78/2018
(2) In computing the period of limitation for any
application, the time during which the applicant
has been prosecuting with due diligence another
civil proceeding, whether in a court of first
instance or of appeal or revision, against the same
party for the same relief shall be excluded, where
such proceeding is prosecuted in good faith in a
court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of
Order XXIII of the Code of Civil Procedure, 1908
(5 of 1908), the provisions of sub-section (1) shall
apply in relation to a fresh suit instituted on
permission granted by the court under rule 1 of that
Order, where such permission is granted on the
ground that the first suit must fail by reason of a
defect in the jurisdiction of the court or other cause
of a like nature.
Explanation.-- For the purposes of this section,--
(a) in excluding the time during which a former
civil proceeding was pending, the day on which
that proceeding was instituted and the day on
which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal
shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall
be deemed to be a cause of a like nature with
defect of jurisdiction."
12. It may be noted that the application filed by the appellant under Order
I Rule 10 in the suit filed by Yogesh Kumar was not dismissed on
account of defect of jurisdiction or any other similar reason. The suit
filed by Yogesh Kumar and the present suit filed do not relate to the
same matter and issue for the reason that the suit filed by Yogesh
Kumar pertains to the Sainik Farms property while the agreement of
which specific performance is sought in the subsequent suit filed by
RFA(OS) 78/2018
the appellant pertains to two properties in Kalkaji and Sainik Farms.
Assuming for the sake of arguments even if the appellant was
impleaded in the suit filed by Kumar, no relief could have been
granted to him in the said suit, moreso, when the property at Kalkaji
was not the subject matter in the suit filed by Yogesh Kumar.
Accordingly, at least two of the conditions laid down by the Supreme
Court in the case of Consolidated Engineering Enterprises (supra)
would not stand satisfied.
13. Reading of the reply filed by Kumar to the application under Order I
Rule 10 would show that as far back as on 12.02.2014, the appellant
was cautioned that he was knocking at the wrong door, but he did not
take recourse to such remedy as were available to him. At best, it can
be said that till the time reply to the application under Order I Rule 10
was filed, the appellant was under a bonafide belief that he was
pursuing the right remedy but after 12.02.2014, this ground of
prosecuting his application with due diligence and good faith would
not be available. The parties entered into an agreement on 04.10.2010.
First cause of action accrued in favour of the plaintiff upon the expiry
of eight months and finally on 12.08.2011 when specific performance
was refused by the defendants. Article 54 of the Limitation Act reads
as under :
"
54. For specific Three years The date fixed for the
performance of a performance, or if no such
contract date is fixed, when the
plaintiff has notice that
performance is refused.
"
RFA(OS) 78/2018
14. Since the performance was refused by the defendants on 12.08.2011,
the period of limitation would be three years from the said date and
would expire on 11.08.2014. The date of 11.08.2014 gains relevance
as the reply to the application under Order I Rule 10 was filed on
12.02.2014. In case, the appellant had acted in a bonafide manner and
with a due diligence, he would have sought his remedy at that stage.
The application under Order I Rule 10 was dismissed on 01.02.2014
on the ground that the plaintiff had a remedy of specific performance.
The dismissal was not on account of any defect of jurisdiction or any
cause of similar nature as prescribed in Section 14 of the Limitation
Act. The appeal against the aforesaid order was also dismissed on
05.09.2017.
15. There is yet another aspect in the matter and that is the unexplained
delay of 8 months in filing the present suit after the appeal in chamber
was dismissed on 05.09.2017. The explanation rendered was that the
time was spent for obtaining the original documents which had been
filed in suit being CS (OS) 252/2013 (suit filed by Yogesh Kumar) is
not a satisfactorily explanation as the appellant could have filed the
plaint and sought time in filing the original documents by giving
reference to the fact that the same were filed in the suit filed by
Yogesh Kumar but the appellant seemed to be in no hurry in filing the
present suit.
16. In the case of Consolidate Engineering Enterprises (supra), the
Supreme Court held that the following five conditions have to be
fulfilled before applying Section 14:
"21. Section 14 of the Limitation Act deals with
exclusion of time of proceeding bona fide in a court
RFA(OS) 78/2018
without jurisdiction. On analysis of the said section, it
becomes evident that the following conditions must be
satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil
proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due
diligence and in good faith;
(3) The failure of the prior proceedings was due to defect
of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must
relate to the same matter in issue and;
(5) Both the proceedings are in a court."
(Emphasis supplied)
17. For all the reasons stated above, we find no infirmity in the order
passed by learned Single Judge. The sequence of events clearly shows
that the appellant was not prosecuting his application diligently neither
the same was bonafide, it seems that the appellant was satisfied with
the criminal proceedings initiated by him. His application was not
rejected on account of any defect in jurisdiction or any other cause of
similar nature. The subject matter of both the suits was not the same as
property of Kalkaji was not the subject matter of the suit filed by
Yogesh Kumar.
18. Resultantly, the appeal is dismissed leaving parties to bear their own
cost.
G.S.SISTANI, J.
JYOTI SINGH, J.
FEBRUARY 28th, 2019
ck
RFA(OS) 78/2018
