Delhi High Court
Ab Towers Private Limited, ... vs M/S Delhi Apartments Pvt. Ltd. ... on 16 March, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 07th March, 2022
Judgment Delivered on : 16th March, 2022
+ CS(COMM) 62/2021, I.A. 1735/2021 (O-XXXVIII R-5 of the CPC)
& I.A. 1736/2021 (O-XXXIX R-1 & 2 of the CPC)
AB TOWERS PRIVATE LIMITED ..... Plaintiff
Through: Mr. Ankur Kashyap with Mr. Rohit
Rajershi, Mr. Aman Bajaj & Mr.
Abhay Singh, Advocates.
versus
DELHI APARTMENTS PVT. LTD. & ORS. ..... Defendants
Through: Mr. Sanjeev Sindhwani, Senior
Advocate with Mr. Kunal Mittal and
Mr. V.P. Rana, Advocates for
defendants No.1 and 3.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
I.A. 5248/2021 (of the defendant no.3 u/O-VII R-11 of the CPC)
1. By this order, I shall decide the application filed on behalf of the
defendant No.3 under Order VII Rule 11 of the Code of Civil Procedure,
1908 (CPC) seeking dismissal of the present suit. The main ground taken in
the present application is that the suit is barred by limitation.
2. Notice was issued in this application on 12th April, 2021.
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3. Pursuant thereto, a reply has been filed on behalf of the plaintiff and
rejoinder thereto has been filed on behalf of the defendant No.3.
4. The suit was filed in December, 2020 by the plaintiff seeking, inter
alia, recovery of purchase consideration to the tune of Rs.19,06,38,188/-,
from the defendants on account of the defendant No.1 transferring 12 Bighas
1 Biswa of land to the plaintiff vide registered Sale Deed dated 4th
September, 2006, out of which land, 5 Bigha 6 Biswas was with defective
title.
5. The facts as pleaded in the plaint are reproduced as follows:
(i) The defendant No.1 is a Company, of which the defendant No.3 is a
director. The defendant No.2 ceased to be a director of the defendant
No.1 w.e.f. 28th January, 2020 and Mrs. Ramesh Kumari Bhardwaj,
the mother of the defendants No.2 and 3, ceased to be a director of the
defendant No.1 on account of her death w.e.f. 8th March, 2020.
(ii) Mrs. Ramesh Kumari Bhardwaj conspired to exchange agricultural
land measuring 5 Bigha 6 Biswa of high value Deputy Commissioner
(DC) land bearing Khasra No. 30/19/2 (1-5) and 20 (4-01) of village
Kapashera (hereinafter referred to as the 'DC Land') with her other
low value land.
(iii) The Consolidation Officer initially allowed the illegal exchange of the
DC Land with the low value land of Mrs. Ramesh Kumari Bhardwaj
on 1st December, 1995.
(iv) On the basis of material facts and irregularities pertaining to the low
value land of Mrs. Ramesh Kumari Bhardwaj, the exchange dated 1st
December, 1995 was cancelled on 11th January, 1996 [18th July, 1996
as noted by this Court in its judgment dated 5th December, 2008 in
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Writ Petition No. 7687/2004 titled Dy. Commissioner (South West)
Kapashera Vs. Ramesh Kumari & Ors.].
(v) This Court in its judgment in Dy. Commissioner (South West)
Kapashera (supra) held that the order dated 1st December, 1995 of the
CO, resulting in the exchange of the DC Land by Mrs. Ramesh
Kumari Bhardwaj, was fraudulent, illegal and void ab initio.
(vi) The appeal preferred against the aforesaid decision was dismissed by
the Division Bench of this Hon'ble Court vide the judgment dated 15th
January, 2009 and the Special Leave Petition preferred thereagainst
was dismissed on 24th September, 2009, making the cancellation of
the illegal exchange final and binding.
(vii) Notwithstanding the aforesaid, the defendants produced a Sale Deed
dated 25th August, 2005, executed by Mrs. Ramesh Kumari Bhardwaj
in favour of the defendant No.1 and the Sanction Letter dated 11th
August, 2006 issued by the Municipal Corporation of Delhi for
construction of a motel on the land sold, to defraud the plaintiff into
buying the land with defective title.
(viii) The defendant No.1 transferred 12 Bighas 1 Biswa of land to the
plaintiff vide registered Sale Deed dated 4th September, 2006 for
purchase consideration of Rs.18,00,00,000/-, out of which land, 5
Bighas 6 Biswas was with defective title.
(ix) On 7th September, 2006, when the plaintiff filed for mutation of the
land, it was intimated to the plaintiff by the concerned authority that
mutation of the said land could not be done in plaintiff's name due to
pendency of Dy. Commissioner (South West) Kapashera (supra).
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(x) The plaintiff made repeated requests to Mrs. Ramesh Kumari
Bhardwaj and the defendants for refund of the purchase consideration,
however, the defendants fraudulently and maliciously kept
misrepresenting that they will refund the payment made by the
plaintiff towards to portion of land, which was the subject matter of
the illegal transfer.
(xi) After the passing of the judgment in Dy. Commissioner (South West)
Kapashera (supra), the defendants informed the plaintiff that the
defendants would sell the original land as exchanged by them
(hereinafter referred to as the 'Original Land') and refund the
purchase consideration.
(xii) Till date not a single penny has been refunded by the defendants to the
plaintiff, hence, the present suit.
6. In support of the application filed under Order VII Rule 11 of the
CPC, the senior counsel appearing on behalf of the defendant No.3 has
submitted that:
(i) From a reading of the plaint itself it is evident that the suit is time
barred.
(ii) The entire case of the plaintiff, as set out in the plaint, is based on a
right of recovery in respect of the consideration paid by the plaintiff
for 5 Bighas 6 Biswas of the DC Land. However, in the reply to the
application under Order VII Rule 11 of the CPC, the plaintiff has
sought to make a new case based on a statutory charge being created
in respect of the Original Land in favour of the plaintiff.
(iii) While examining an application under Order VII Rule 11 of the CPC,
the Court only to see the plaint as filed and not any other pleading.
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The only substantive prayer made in the plaint is prayer g), which
seeks decree of recovery of Rs.19,06,38,188/-, being the purchase
consideration towards the sale of 5 Bighas 6 Biswas of DC Land and
interest accrued thereon, and other amounts paid towards registration
fee, stamp duty etc.
(iv) The present case would be governed by Article 47 of the Schedule to
the Limitation Act, 1963, which prescribes a limitation period of three
years from the date of failure of consideration, which would be 5th
December, 2008, being the date when this Court in its judgment in
Dy. Commissioner (South West) Kapashera (supra) held that the
order dated 1st December, 1995 of the CO, resulting in the exchange
of the DC Land by Mrs. Ramesh Kumari Bhardwaj, was fraudulent,
illegal and void ab initio. The fact that the matter was carried up in
appeal before the Division Bench of this Court and to the Supreme
Court would not extend the period of limitation.
(v) The plaintiff cannot take benefit of Section 18 of the Limitation Act
as for the benefit of fresh limitation to be available, the
acknowledgement of liability has to be in writing and has to be given
before expiry of the original limitation period, which is not the case in
the present case.
(vi) Reliance is placed on the judgment of the Division Bench of this
Court in Minu Chibber Vs. S.S. Chibber, MANU/DE/2437/2014
(DB) [Special Leave Petition (Civil) No.2068/2015 preferred
whereagainst was dismissed on 30th January, 2015], to contend that
limitation is not always a mixed question of law and fact and if it is
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evident from statement in the plaint that the suit is time barred, the
suit should be rejected under Order VII Rule 11 of the CPC.
7. The counsel appearing on behalf of the plaintiff submits that:
(i) The plaint is based on assurances given by the defendants that in the
event that they do not succeed in the Writ Petition No. 7687/2004,
they will get Original Land back, which was exchanged by the DC
and they will repay the plaintiff by selling the same. In this regard,
reliance is placed on paragraphs 4 xviii. and xx. of the plaint.
(ii) Thus, a charge was created in favour of the plaintiff in respect of the
Original Land and, therefore, Article 62 of the Schedule to the
Limitation Act would apply, which prescribes a limitation period of
12 years.
(iii) It has been noted in the judgment dated 5th December, 2008 in Dy.
Commissioner (South West) Kapashera (supra) that the private
respondent therein, Mrs. Ramesh Kumari Bhardwaj, acted in concert
with the Consolidation Officer and substituted valuable DC Land with
less valuable land. Even during the pendency of the Writ Petition No.
7687/2004, Mrs. Ramesh Kumari and her family members persisted
with sale transactions. Based on the aforesaid observations, the Writ
Petition No. 7687/2004 was allowed.
(iv) The aforesaid observations made by the Single Judge of this Court
were upheld by the Division Bench of this Court in its judgment dated
15th January, 2009. It was noted therein that the entire transaction was
done in a clandestine manner for unlawful gain. It was noted therein
that Mrs. Ramesh Kumari Bhardwaj made fraudulent and illegal
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transactions in respect of the DC Land between 1st December, 1995
and 15th December, 2005.
(v) Reliance is placed on the judgment of the Supreme Court in Delhi
Development Authority Vs. Skipper Construction Co. (P) Ltd. and
Ors., (2000) 10 SCC 130, to contend that as per Section 55(6)(b) of
the Transfer of Property Act, 1882, the plaintiff shall have a charge on
the defendants' interest in the property, which is the subject matter of
the sale agreement insofar as the purchase money and interest on such
amount are concerned. Furthermore, since the 5 Bighas 6 Biswas of
the DC Land, as transferred to the plaintiff, was with defective title,
the charge of the plaintiff would get converted into one over the
Original Land, being the substituted security. Thus, in such cases
Article 62 of Schedule to the Limitation Act would apply. Reliance is
also placed on the judgment of the Supreme Court in Videocon
Properties Ltd. Vs. Dr. Bhalchandra Laboratories and Ors., (2004) 3
SCC 711.
8. In rejoinder, the senior counsel for the defendant No.3 makes the
following submissions:
(i) No relief has been claimed in the plaint in respect of the Original
Property and therefore, Article 62 of the Schedule to the Limitation
Act is not applicable.
(ii) The judgment in Skipper Construction Co. (P) Ltd. (supra) is not
applicable, as in that case, there was no Sale Deed executed in favour
of the buyer, whereas in the present case a Sale Deed was executed in
favour of the buyer in respect of the subject land. Therefore,
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provisions of Section 55(6)(b) of the Transfer of Property Act are not
applicable.
(iii) Reliance is placed on the judgment of the Privy Council in Ram Din
Vs. Kalka Prasad, MANU/PR/0025/1884 to contend that to claim
benefit under Article 62 of the Schedule to the Limitation Act, the
prayer has to be made in respect of the property and not a personal
claim of recovery.
9. I have heard the counsels for the parties.
10. The main issue to be decided for the purposes of the present
application is whether Article 47 of the Schedule to the Limitation Act
would be applicable to the facts and circumstances of the present case or
Article 62.
11. The two aforesaid competing entries are set out below:
" PART II.--SUITS RELATING TO CONTRACTS
xxx xxx xxx
47. For money paid upon an Three The date of the
existing consideration which years. failure.
afterwards fails.
xxx xxx xxx
PART V.--SUITS RELATING TO IMMOVABLE PROPERTY
62 To enforce payment of money Twelve When the money
secured by a mortgage or years sued for becomes
otherwise charged upon due."
immovable property.
12. Section 55(6)(b) of the Transfer of Property Act relied upon by the
parties is also set out below:
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"Section 55. Rights and liabilities of buyer and seller.--In the
absence of a contract to the contrary, the buyer and the seller of
immoveable property respectively are subject to the liabilities, and
have the rights, mentioned in the rules next following, or such of
them as are applicable to the property sold:
(6) The buyer is entitled--
xxx xxx xxx
(b) unless he has improperly declined to accept delivery of
the property, to a charge on the property, as against the
seller and all persons claiming under him, 1[* * *] to the
extent of the seller's interest in the property, for the amount
of any purchase-money properly paid by the buyer in
anticipation of the delivery and for interest on such amount;
and, when he properly declines to accept the delivery, also
for the earnest (if any) and for the costs (if any) awarded to
him of a suit to compel specific performance of the contract
or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this
section, paragraph (1), clause (a), and paragraph (5), clause (a),
is fraudulent."
13. I have gone through the plaint as filed on behalf of the plaintiff.
14. The plaint, as filed, is a simpliciter suit for recovery of Rs.
Rs.19,06,38,188/- filed by the plaintiff against the defendants, based on a
fraud committed by the defendants against the plaintiff. In this regard,
reference may be made to paragraphs 9, 11 and 12 of the plaint, which are
set out below:
"9. Accordingly, the Plaintiff is claiming a total of
Rs.8,55,03,734/- along with interest @ 12% which at the date of
filing of the present suit amounts to Rs 19,06,38,188.30/- .
xxx xxx xxx
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11. That the Defendants has passed on a defective title of land
to Plaintiff and in law, is liable to restitute the Plaintiff to the
original position assuming that the transaction in question for
purchase of land had not been entered into. Accordingly, the
Defendants are liable to refund to Plaintiff the entire purchase
consideration, the payment towards the payment of stamp duty
and registration fees incurred by the Plaintiff for the aforesaid
purchase consideration paid to the Defendants.
12. That the cause of action to file the present suit for recovery
of the purchase consideration and associated cost incurred by the
Plaintiff accrued on 04.09.2006.However due to pendency of
earlier writ petition wherein the dispute over the title/ownership of
the land in question measuring 5 Bigha 6 Biswas high value
Divisional Commissioner Land bearing Khasra No. 30/19/2 (1-5)
and 20 (4-01) of village Kapashera, Delhi was pending before this
Hon'ble Court and thereafter before the Hon'ble Supreme Court
came to be decided finally on 24.09.2010 by the Hon'ble Supreme
Court and hence the cause of action again arose on 24.09.2010
after issue with respect title/ownership was finally rested by the
Hon'ble Supreme Court. The further the cause of action kept
arising when the Defendants kept fraudulently misrepresenting to
the Plaintiff that it will refund the consideration paid by the
Plaintiff for the illegal sale by selling the original land received
back after cancellation of illegal exchange, after getting the Status
Quo orders removed from the same as passed by the concerned
DC. The cause of action further arose when Defendant No. 2 filed
a complaint against Defendant No. 3 alleging siphoning of assets
of Defendant No. 1 Company by Defendant No. 3 and his wife."
15. Clauses a) to j) are made in the prayer of the plaint, but clauses a) to f)
thereof are only in the nature of prayers seeking interim relief. Clause h) of
the prayer seeks ad interim relief in terms of clauses a) to f), clause i) seeks
the award of cost of the suit in favour of the plaintiff and clause j) seeks
grant of any other relief, which this Court may deem fit. The only
substantive prayer made in the plaint is prayer g), which is set out below:
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"g) A decree of recovery of Rs 19,06,38,188/- (Rupees Nineteen
Crore Six Lakhs Thirty Eight Lakhs One Hundred Eighty Eight
Only) i.e. the purchase consideration paid towards the illegal sale
of 5 Bighas 6 Biswas government land, amount paid towards
registration fee and stamp duty, other miscellaneous expenditure
and cost of borrowing incurred by the Plaintiff for the purchase of
land interest @ 12% from 24.09.2010 being the date on which the
issue of title/ownership was finally rested by the Hon'ble Supreme
Court till the filing of the present Suit and further pendente lite
interest and future interest @ 12% till date of repayment;"
16. A reading of the aforesaid paragraphs of the plaint and the prayer
clause of the plaint leaves no doubt in my mind that the present case is a
simpliciter recovery case filed by the plaintiff. The plaintiff has pleaded that
the defendants committed a fraud upon the plaintiff as a portion of the land
sold by the defendants to the plaintiff vide registered Sale Deed dated 4th
September, 2006 had defective title. There was a dispute with regard to the
said portion of land, which eventually, the plaintiff lost on account of the
Writ Petition No. 7687/2004, preferred by the DC, being allowed by this
Court vide judgment dated 5th December, 2008, and which judgment was
subsequently upheld by the Division Bench as well as the Supreme Court.
There is no reference at all in the plaint to any charge being created in
respect of the Original Land in favour of the plaintiff, pursuant to the return
of the Original Land to Mrs. Ramesh Kumari Bhardwaj.
17. It is pertinent to note herein that the plaintiff invokes the indemnity
clause in the Sale Deed dated 4th September, 2006 in support of its recovery
claim as a part of the plaint as follows:
"4. That brief facts of the present suit are as follows:
ix. xxx xxx xxx
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Significantly the Sale Deed also recorded that "... if the whole or
any portion of the said property is taken away or goes from the
possession of the Vendee on account of any legal defect in the
ownership and title of the Vendor, then the Vendor will be liable
and responsible to make good the loss suffered by the vendee
and keep the Vendee indemnified, saved and harmless against all
such losses, costs, damages and expenses accruing thereby to the
Vendee.""
18. It is evident from the aforesaid that the recovery as claimed in the
present suit is based on the refund of the purchase consideration paid by the
plaintiff to the defendants in respect of 5 Bighas 6 Biswas of the DC Land
and the said consideration having failed on account of the defendants losing
their title in respect of the said land.
19. The plaintiff has relied upon paragraphs 4 xviii. and xx. of the plaint
to contend that a charge was created in their favour in respect of the Original
Land. The aforesaid paragraphs are set out below:
"xviii. That the matter went upto the Hon'ble Supreme
Court wherein the Hon'ble Court finally rested the issues
involved. The Hon'ble Supreme Court passed an order dated
27.04.2009 and issued notice restricted only to consider the
question whether a valuer should be appointed for regularizing
the allotment by payment of the difference in valuation. The matter
was later on dismissed on 24.09.2010 on which date the
cancellation of the illegal exchange became final and binding.
During all these legal proceedings Defendants and Mr Deepak
Bhardwaj (since deceased) and Mrs Ramesh Kumari Bhardwaj
(since deceased), were continuously assuring the Plaintiff that
they will win the Court cases and hand over the land in question
to the Plaintiffs. They further assured the Plaintiff that in case they
lose this case, then they will get their original land back which
was exchanged for DC Land, and they will repay us by selling the
same.
xxx xxx xxx
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xx. Further after first losing the case in this Court, Defendants
informed the Plaintiff that the concerned DC has ordered Status
Quo on their original land which they received back, and that the
same cannot be sold, and they were trying to clear the same and
soon they will sell the same and pay us our money. The Plaintiff
craves leave for producing the record of Khataunies of said land
with DC order in this regard, if required."
20. In my view, the aforesaid paragraphs do not suggest that the plaintiff
has made out a case that any charge was created in favour of the plaintiff,
either in respect of the land, which was the subject matter of the Sale Deed
or the Original Land, which was exchanged for the DC Land. Upon a
perusal of the Sale Deed dated 4th September, 2006, no clause is found
therein which indicates the creation of a charge in favour of the plaintiff.
Furthermore, neither is any relief in the plaint based on the creation of any
charge in favour of the plaintiff, nor has any relief been claimed against the
Original Land.
21. The senior counsel for the defendant no.1 and 3 has correctly relied
upon the judgment of the Privy Council in Ram Din (supra), wherein the
Privy Council has discussed the difference between invoking personal
remedies and the remedies against an immoveable property. It was held by
the Privy Council that the limitation period of 12 years would apply to suits
in respect of immovable properties. The limitation period of 12 years would
not apply in respect of personal remedy against the mortgagor. In the present
case also, a reading of the plaint reveals that the plaintiff has invoked a
personal remedy against the defendants. No remedy has been invoked in
respect of the Original Property. Therefore, the plaintiff would not be
entitled to invoke the period of limitation provided under Article 62 of the
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Schedule to the Limitation Act. As noted above, there is not even a mention
of any charge being created in favour of the plaintiff in the plaint.
22. There is also merit in the contention of the defendants that the plea of
the creation of charge was taken by the plaintiff for the first time in their
reply to the present application under Order VII Rule 11 of the CPC.
23. It is the settled position of law that for deciding an application under
Order VII Rule 11 of the CPC, only the averments made in the plaint, in
conjunction with the documents relied upon, have to be looked at. Reference
in this regard may be made to the decision of the Supreme Court in Dahiben
Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal
Representatives and Ors., (2020) 7 SCC 366. No reliance can be placed on
any other pleading. The Division Bench of this Court in Minu Chibber
(supra) has observed that the issue of limitation is not always a mixed
question of law and fact and where from the plaint itself it emerges that the
suit is barred by time, it should be rejected under Order VII Rule 11 of the
CPC. The aforesaid judgment was followed by a Single Judge of this Court
in J.M. Construction Pvt. Ltd. Vs. Krishna Sachdev & Ors.,
MANU/DE/0017/2016. The observations of this Court in the said case are
also apposite in the facts and circumstances of the present case and are set
out below:
"49. Even the alleged oral extensions alleged in the plaint cannot
be taken note of, as no particulars as to when and how long those
were, were not mentioned in the plaint, as held by the Supreme
Court in Fatehji & Company and Another v. L.M. Nagpal and
Others MANU/SC/0493/2015 : (2015) 8 SCC 390. Their Lordships
in the above mentioned case in paragraph 9 of their judgment held
as under:--
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"Though the plaintiffs claimed that oral extension of time
was given, no particulars as to when and how long were
mentioned in the plaint."
xxx xxx xxx
51. The Division Bench of this Court in Minu Chibber & Ors. v.
Lt. Col. (Retd.) S.S. Chibber MANU/DE/2437/2014 : 2014 (IV) AD
Delhi 289 held that "where a suit, from statement in the plaint can
be said to be barred by time certainly a case for rejection under
O.7 R.11 CPC is made out.""
24. In the present case also, the plaint only makes references to oral
representations of the defendants or of the deceased Mrs. Ramesh Kumari
Bhardwaj to refund the amount to the plaintiff. No particulars of the
aforesaid representations have been pleaded. In view of the clear language
of Section 18 of the Limitation Act as well as the aforesaid judgment of this
Court, the limitation shall not be extended on account of such oral
representations of the defendants.
25. In respect of the reliance placed by the counsel for the plaintiff on
Videocon Properties Ltd. (supra), it is apposite to note that paragraph 4 of
the judgment in Videocon Properties Ltd. (supra) states that the plaintiff
therein had asked for several reliefs, one among which was for declaration
by the Court that the amount, interest and cost of suit, as sought, were
validly secured by a statutory charge on the said land described in the plaint.
In the present case, as noted above, there is no averment in the plaint as to
the creation of a charge, statutory or contractual, in favour of the plaintiff by
the defendants.
26. Further, it is prudent to reproduce the observations of the Supreme
Court in Videocon Properties Ltd. (supra) as follows:
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"The buyer's charge engrafted in clause (b) of sub-section 6 of
Section 55 of the Transfer of Property Act would extend and
enure to the purchase-money or earnest money paid before the
title passes and property has been delivered by the purchaser to
the seller, on the seller's interest in the property unless the
purchaser has improperly declined to accept delivery of property
or when he properly declines to accept delivery -- including for
the interest on purchase money and costs awarded to the
purchaser of a suit to compel specific performance of the contract
or to obtain a decree for its rescission. The principle underlying
the above provision is a trite principle of justice, equity and good
conscience. The charge would last until the conveyance is
executed by the seller and possession is also given to the
purchaser and ceases only thereafter. The charge will not be lost
by merely accepting delivery of possession alone. This charge is a
statutory charge in favour of a buyer and is different from
contractual charge to which the buyer may become entitled to
under the terms of the contract, and in substance a converse to the
charge created in favour of the seller under Section 55(4)(b)...The
said statutory charge gets attracted and attaches to the property
for the benefit of the buyer the moment he pays any part of the
purchase money and is only lost in case of purchaser's own default
or his improper refusal to accept delivery."
27. On a reading of the aforesaid, the judgment in Videocon Properties
Ltd. (supra) would not be applicable in the facts and circumstances of the
present case. In the said judgment, it was specifically noted that under
Section 55(6)(b) of the Transfer of Property Act, the charge as against the
property would last only till conveyance is executed by the seller and
possession is given to the purchaser and it ceases thereafter. Admittedly in
the present case, the Sale Deed dated 4th September, 2006 had been executed
in favour of the plaintiff pursuant whereto, the title in the subject land stood
transferred to the plaintiff. Furthermore, even the possession of the subject
property was given to the plaintiff. The factum of possession being handed
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over to the plaintiff has been averred in paragraph 4 xiii. of the plaint. The
relevant provision of the Sale Deed dated 4th September, 2006, to denote the
transfer of possession to the plaintiff, may also be reproduced as follows:
"That the actual physical possession of the said property has been
delivered by the Vendor to the Vendee, on the spot, at the time of
the execution of this Sale Deed."
28. Similarly, the judgment in Skipper Construction Co. (P) Ltd (supra)
does not come to the aid of the plaintiff as upon execution of the Sale Deed
dated 4th September, 2006, there is no seller's interest that remains in the
property sold pursuant to execution thereof. Therefore, there cannot be any
creation of charger in favour of the buyer in terms of Section 55(6)(b) of the
Transfer of Property Act.
29. In this regard, reference may also be made to the judgment of the
Madras High Court in M.K. Sundararamier Vs. C.M.V. Krishnamachary &
Ors., MANU/TN/0190/1966, as relied on behalf of the defendants. It has
been observed therein by the High Court of Madras that Section 55(6)(b) of
the Transfer of Property Act cannot be availed by the buyer when the Sale
Deed has already been executed in favour of the buyer. The relevant
observations made in paragraph 3 of the aforesaid judgment are set out
below:
"3. Sri S. Kothandarama Nayanar, learned counsel for the
petitioner, urges that the above provision cannot be availed of by
the buyer before the sale deed is executed and can be availed of by
him only after the sale deed is executed. I am however unable to
accept the contention, because if the sale deed is executed, the title
would pass to the buyer and there is no point in giving a charge
over the purchase money on the property which has become that
of the buyer. The provision can have meaning only in a case
where the title has not yet passed to the buyer in respect of the
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purchase money or any portion thereof paid by him. That the
provisions of Section 55 will apply to the case of executory
contract, that, is, where the sale deed has not been executed, is
clear from the decisions quoted by the learned Subordinate Judge
and the observations of the learned judges therein, namely,
Adhikesavan Naidu v. Gurunatha Chettiar, ILR Mad 338: AIR
1918 Mad 1315 , Khathamuthu Pillai v. Subramania Chettiar
1926 Mad WN 271: MANU/TN/0663/1925 : AIR 1926 Mad 569
and Krishnaswami Rao v. Srinivasa Desikan, 71 MLJ 850 : AIR
1937 Mad 261 . Hence the learned Subordinate Judge had
jurisdiction to declare the charge."
30. I am in respectful agreement with the view of the High Court of
Madras in M.K. Sundararamier (supra). Therefore, no charge can be said to
be created under Section 55(6)(b) of the Transfer of Property Act, where a
sale deed has been executed and pursuant whereto, title in the property has
passed from the seller to the buyer. The provisions of Section 55(6)(b) of the
Transfer of Property Act would only apply in a case where the title has not
passed from the buyer to the seller.
31. The counsel for the plaintiff has taken me through the observations
made by the Single Judge Bench in its judgment dated 5th December, 2008
and the Division Bench in its judgment dated 15th January, 2009 against the
conduct of the defendants. However, it may be pertinent to note herein that
the counsel for the plaintiff was in attendance during the hearing of Writ
Petition No. 7687/2004 and in the judgment dated 5th December, 2008 of
this Court, observations have also been made in respect of subsequent
purchasers and their contention that the exchange of the DC Land be
regularized. In this regard, reference may be made to paragraph 46 of the
judgment dated 5th December, 2008 as follows:
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"46. xxx xxx xxx
Although some of the subsequent purchasers may have got their
plans for motels sanctioned or obtained NOCs and invested
monies, these transactions cannot be the ground for regularizing
their purchases. They will have to proceed independently against
their vendors to work out their remedies... Nevertheless this Court
is not persuaded to accede to the plea of the subsequent
purchasers that the transfers consequent upon and subsequent to
the order dated 1st December, 1995 of the CO should not be
disturbed. No case for equitable relief is made out by any of the
transferees, who took a risk in entering into illegal transactions
concerning the land in question despite the pendency of court
proceedings."
32. Even in light of the aforesaid finding of the Single Judge Bench of
this Court, the plaintiff has significantly delayed proceeding against the
defendants in respect of the remedies as were available to the plaintiff post
the decision of this Court dated 5th December, 2008.
33. In view of the above discussion, it is clear that the present plaint was
filed as a simpliciter recovery suit by the plaintiff against the defendants.
The plaintiff has neither claimed any right in respect of any property in the
plaint, nor has any relief been claimed in the plaint in respect of the Original
Property.
34. Therefore, in the opinion of this Court, Article 47 of the Schedule to
the Limitation Act would apply in the present case, which provides for a
limitation period of three years from the date of failure of the consideration.
At best, the case of the plaintiff can be that the limitation would begin from
the date of the judgment of the Supreme Court on 24th September, 2009,
when the issue with regard to validity of exchange of the defendants'
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Original Land attained finality. However even then, the present suit was
filed only in December, 2020 and is therefore, evidently, time barred.
35. In terms of the dicta of this Court in Minu Chibber (supra) and in
light of the observations above, I am of the opinion that the plaint is liable to
be rejected on the grounds of limitation under Order VII Rule 11(d) of the
CPC.
36. Accordingly, the present application is allowed and the plaint is
rejected.
AMIT BANSAL, J.
MARCH 16, 2022
dk
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