Gauhati High Court
Narayan Deka vs Sangeeta Gogoi And Anr on 21 May, 2025
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GAHC010090022025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/53/2025
NARAYAN DEKA
S/O. LT. NABIN CH. DEKA, R/O. SOURAV NAGER, GOLAP PATH, BELTOLA,
HOUSE NO. 148, GUWAHATI-28, P/S. BASISTHA, DIST. KAMRUP (M0,
ASSAM.
VERSUS
SANGEETA GOGOI AND ANR
D/O. LT. KAMAL CH. GOGOI, R/O. FLAT NO. 102 C, NABARUN APARTMENT,
S.K. BARUA PATH, DISPUR, GUWAHATI-06, DIST. KAMRUP (M), ASSAM.
2:MINU GOGOI
W/O. LT. KAMAL CH. GOGOI
R/O. FLAT NO. 102 C
NABARUN PATH
DISPUR
GUWAHATI-06
DIST. KAMRUP (M)
ASSAM
Advocate for the Petitioner : MR J H SAIKIA, MR. S DUTTA
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
21.05.2025
Heard Mr. S. Dutta, learned senior counsel assisted by Mr. J.H. Saikia,
learned counsel for the appellant.
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2. This appeal, under Section 100 of the C.P.C., is directed against the
Judgment and Order dated 05.02.2025, passed by the learned Additional District
Judge (FTC) No. 3, Kamrup (M) at Guwahati (first appellate court hereinafter),
in Title Appeal No. 32/2023.
3. Notably, vide Judgment and Order dated 05.02.2025, the learned first
appellate court has upheld the Judgment dated 23.06.2023, passed by the
learned Civil Judge (Senior Division) No. 2, Kamrup (M) at Guwahati (trial court
hereinafter), in Title Suit No. 110/2020.
4. It is to be noted here that vide Judgment dated 23.06.2023, the learned
trial court has rejected the plaint under Order 7 Rule 11 (d) of the C.P.C.
5. Mr. Dutta, learned senior counsel appearing for the appellant submits that
the appellant herein and the respondents entered into an agreement on
14.10.2007, for selling a plot of land measuring 1 Bigha, covered by Dag No.
476/150 (new) of Patta No. 20 of village Sarusojai, under Beltola Mouza, fixing
the sell price at Rs. 15,00,000/- and on the date of execution of the agreement,
the appellant paid a sum of Rs. 5,00,000/- to the respondents and the
remaining amount, as per Clause No. 4 of the agreement, has to be paid after
obtaining necessary sell permission from the concerned authority or within three
months from that day, whichever is earlier. But, the respondents herein failed to
obtain sell permission and also failed to show her willingness to perform her
part of contract and ultimately on 25.03.2019, the appellant herein through his
counsel issued one notice and in reply to the said notice, the counsel for the
respondents has stated that there was no readiness and willingness on the part
of the appellant to perform his part of contract and then, the appellant herein,
as plaintiff, instituted a suit for specific performance of the contract, being Title
Suit No. 110/2020, in the month of March, 2020, before the learned trial court
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for:-
(a) a decree for a direction to the defendants to execute and register a
Sale Deed in favour of the plaintiff in respect of scheduled plot of
land and accepting the contracted purchase money less the amount
already been paid as advance/earnest;
(b) a decree for a direction to the defendants to execute and register
the Sale Deed in question within a specified time, failing which the
Sale Deed be executed and registered according to the provisions of
Order 21 Rule 34 (4) of the C.P.C.;
(c) in alternative, a decree for refund of the earnest/advance amount in
the event of the plaintiff's failure to obtain the decree as aforesaid
with interest @ 12% per annum from 07.12.2007, till realization;
(d) a decree for permanent injunction restraining the defendants from
selling/alienating or otherwise disposal of the suit land to others;
(e) a temporary ad-interim injunction in terms of prayer (d) above;
(f) a decree for all costs against the defendants; and
(g) any other reliefs.
5.1. Mr. Dutta further submits that on receipt of the said title suit, the learned
trial court had issued summon to the respondents herein and thereafter, the
respondents herein entered appearance and file their written statements.
Thereafter, the respondents had preferred an application, on 22.08.2022, under
Order 7 Rule 11 of the C.P.C. for rejection of the plaint and the appellant herein
filed objection in the said petition. Thereafter, hearing learned counsel for both
the parties, the learned trial court, vide impugned order, dated 23.06.2023, held
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that agreement for sell was executed between the parties on 14.10.2007, and
perusal of the said agreement, it reveals that the second party had paid an
amount of Rs. 5,00,000/- on the date of agreement, out of total sale
consideration of Rs. 15,00,000/-, on stipulated condition that second party, i.e.
the plaintiff/appellant, would pay the remaining amount within 3 months from
the date of execution of the agreement or after obtaining necessary sale
permission, whichever is earlier and from the agreement, it appears that there is
no specific obligation vested upon any of the parties for obtaining sale
permission and even if it is considered that the obligation was on the defendant,
i.e. the seller, then on his failure to obtain the sale permission within the time
stipulated in the agreement, plaintiff should have turned up within three years
from 14.01.2008, to claim specific performance of contract and the record
reveals that he has remained silent for almost 8 years and thereafter, has turned
up only on 25.03.2019, by way of issuing a notice of demand to make the sale
complete, which is apparently beyond the period of limitation and as such, the
issuance of notice on 25.3.2019, would not bring fresh cause of action to place
time barred claim. Therefore, the suit of the plaintiff is found palpably barred by
limitation and as such, the plaint is liable to be rejected under the provision of
Order 7 Rule 11(d) of the C.P.C., being the plaint barred by law.
5.2. Mr. Dutta further submits that being aggrieved, the appellant herein had
preferred a regular first appeal, being Title Appeal No. 32/2023, before the
learned first appellate court and vide Judgment and Order dated 05.02.2025,
the learned first appellate court had dismissed the appeal and affirmed the
order passed by the learned trial court on 23.06.2023. And being aggrieved, the
appellant approached this court by filing the present appeal suggesting three
substantial questions of law, being as under:-
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"1. Whether, the Clause No. 4 of the contract being
relatable to the payment of consideration money, the
appreciation of the agreement for sale by the learned
courts below is perverse?
2. Whether, in absence of any time stipulated in the
contract for completion/registration of sale, the
findings of the learned courts below that the suit
brought by the plaintiff is barred by limitation is
perverse? and
3. Whether, in view of the law laid down by the Hon'ble
Supreme Court to the effect that time is presumed not to
be essence of the contract relating to immovable
property, the findings of the learned courts below to
the contrary are legal and justified?"
5.3. Mr. Dutta further submits that before the learned first appellate court, the
appellant herein had referred several decisions, including the decision in
Balasaheb Dayandeo Naik (dead, through LRS) and Others vs.
Appasaheb Dattatraya Pawar, reported in (2008) 4 SCC 464 and Swarnam
Ramachandran (SMT) and Another vs. Aravacode Chakungal Jayapalan,
reported in (2004) 8 SCC 689. But, the learned first appellate court had not
directed any discussions about the same in the impugned judgment and order.
5.4. Mr. Dutta further submits that if time is not essence of the contract, then
whether the appellant is willing and ready to perform his part of contract, is a
question of fact which is to be decided only after taking evidence during the trial
and since such an endeavor has not been made by both the learned courts
below, the impugned judgment and order of the both the courts below are
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perverse and as such, substantial questions of law are involved in this appeal
and the same have to be adjudicated on merit and therefore, it is contended to
admit the appeal.
6. Having heard the submission of learned counsel for the appellant, I have
carefully gone through the judgments and orders of both the learned courts
below as well as the agreement of the parties, which is enclosed with the
petition at page No. 21 of this petition and also gone through the suggested
substantial questions of law.
7. It appears from the documents placed on record that the Deed of
Agreement between the appellant and the respondents was executed on
14.10.2007. As discussed herein above, in Clause No. 2 of the aforementioned
Deed, it is stated that the sale price for 1 Bigha of land was Rs. 15,00,000/- and
Clause No. 3 indicates that on that day the appellant had paid a sum of Rs.
5,00,000/- in cash as advance and Clause No. 4 indicates that the remaining
amount shall be paid by the appellant, after obtaining necessary sale permission
from the concerned authority or within 3 months from that day, whichever is
earlier and Clause No. 5 indicates that in case of unnecessary delay, regarding
the payment by the appellant, the advance amount can be forfeited.
8. A careful perusal of the Clause No. 4 of the agreement, reveals that the
remaining amount shall be paid by the appellant herein after obtaining
necessary sale permission from the concerned authority or within 3 months
from that day, whichever is earlier. So, the wording of this Clause is not clear to
show, as to who has to obtain the sale permission. But, it was stipulated that
within 3 months from the date of execution of the agreement, the amount has
to be paid. But, none of the parties come forward to complete the sale process
after obtaining sale permission from the concerned authority.
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8.1. Thereafter, only on 25.03.2019, the appellant herein had sent one legal
notice to the respondents, expressing his readiness and willingness to complete
the process, by paying the rest of the amount, i.e. Rs. 10,00,000/- and
thereafter, on 11.04.2019, the respondents sent her reply through her counsel.
Thereafter, in the month of March, 2020, the appellant herein had instituted the
suit. The respondents, thereafter, entered appearance and contested the suit on
different grounds.
8.2. During the pendency of the said suit, the respondents herein had filed a
petition, under Order 7 Rule 11 of the C.P.C. for rejection of the plaint and the
said petition was filed on the ground that the limitation period for filing the suit
is 3 years and the same is barred by time and notice and therefore, it was
contended to reject the plaint. The appellant herein had filed written objection
in the said petition, stating that as per stipulation made in the agreement, the
respondent No. 1 was supposed to apply and obtain the necessary sale
permission by signing all the relevant papers before the competent authority.
But, the respondents never applied for sale permission and also refused to sign
the necessary papers and affidavit for the said purpose and as such, the delay
has been caused due to deliberate negligence on the part of the respondents.
Further, it is stated that in spite of specific stipulation, the respondents never
made any attempt to obtain the sale permission and from the terms of the
contract it is very much clear that time was never intended by the parties to
make as an essence of contract.
8.3 Thereafter, hearing learned counsel for both the parties, the learned trial
court has allowed the petition and rejected the plaint on the ground that the
agreement was executed between the parties on 14.10.2007 and thereafter,
within the stipulated period of 3 months, the appellant had failed to make
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necessary payment and there is no specific obligation vested upon any of the
parties for obtaining sale permission. Even if it is considered that the obligation
was on the respondents, i.e. the seller, then, on their failure to obtain the sale
permission within the time stipulated in the agreement, the appellant should
have turned up within three years from 14.01.2008, to claim specific
performance of contract. But, the appellant remained silent for almost 8 years
and thereafter, he had issued legal notice on 25.03.2019, demanding to make
the sale process complete, which is apparently beyond the period of limitation
and issuance of notice on 25.03.2019, would not bring fresh cause of action to
place time barred claim and therefore, the learned trial court has rejected the
plaint.
9. It also appears that the learned first appellate court in the impugned
judgment has discussed the Article 54 of the Limitation Act, which provides for
limitation of specific performance of contract and as per said Article, limitation
to bring the suit is 3 years and the limitation begins to run from the date fixed
for the performance or if no such date is fixed, when the plaintiff has noticed
that performance is refused. Thereafter, the learned first appellate court
recorded that the limitation period begins from 15.01.2008, as 14.01.2008 was
the deadline for performance of the contract, as per the agreement itself.
Thereafter, it has discussed the effect of filing the suit beyond the period of
limitation as provided in Section 3 of the Limitation Act and thereafter, it has
held that the plaint itself clarifies that the claim of the plaintiff is time barred.
The alleged agreement for sale was executed on 14.10.2007 and the sale of the
same was to be completed within 3 months and as such, the limitation would
definitely begin to run from 15.01.2008, as the date of performance would have
been completed on 14.01.2008, and there is no requirement of proof of any
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facts to apply law of limitation in the present case, as the plaint is very much
clear to decide the same and as such, there is no question of involvement of
facts and law and therefore, the Order 7 Rule 11(d) of the C.P.C. squarely
applicable in this case, without the proof of any other facts. Thereafter, the
learned first appellate court had arrived at a finding that the suit of the
appellant herein is barred, from the averments made in the plaint and therefore,
affirmed the order dated 23.06.2023, passed by the learned trial court, whereby
the learned trial court had rejected the plaint by invoking Order 7 Rule 11(d) of
the C.P.C.
10. It is to be noted here that Order 7 Rule 11 of the C.P.C. mandates
rejection of a plaint in the following cases :-
"(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to so correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c) Where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped,
and the plaintiff, on being required by the court to
supply the requisite stamp paper within a time to be
fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint
to be barred by any law;
(e) Where it is not filed in duplicate; and
(f) Where the plaintiff fails to comply with the provisions
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of Rule 9?"
11. It is to be noted here that Hon'ble Supreme Court has dealt with the Order
7 Rule 11 of the C.P.C. in the following decision:-
(i) Raghabendra Sharan Singh vs. Ram Prassana Singh (Dead
by Legal Representative), reported in (2020) 16 SCC 601,
wherein it has been held that considering the averments in the
plaint if it is found that the suit is clearly barred by the law of
limitation, the same can be rejected in exercise of power under
Order 7 Rule 11 (d) of the C.P.C.
(ii) Saleem Bhai and Others vs. State of Maharashtra and
Others, reported in (2003) 1 SCC 557, wherein it has been held
that with reference to Order 7 Rule 11 of the C.P.C. that the
relevant facts which need to be looked into for deciding an
application there under are the averments in the plaint.
(iii) Liverpool and London S.P. and I Association Limited
vs. M.V. Sea Success, reported in (2004) 9 SCC 512,
wherein it has been held that the courts, while dealing with such
an application seeking rejection of a plaint, the courts have to
determine whether the plaint discloses a cause of action by
scrutinizing the averments made in the plaint, read in conjunction
with the documents relied upon.
(iv) Sopan Sukhdeo Sable vs. Assistant Charity
Commissioner, reported in (2004) 2 SCC 137, wherein it has
been clarified that while making such a determination, courts
would have to disregard the pleas taken by the defendant in the
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written statement and decide the application for rejection of the
plaint on merit. Therefore, it was clarified that while determining
any application filed under Order 7 Rule 11 of the C.P.C., the
courts should restrict itself to the plaint and should not go into the
detail facts as provided under the written statement or even the
application filed under Order 7 Rule 11 of the C.P.C.
12. In the case in hand, admittedly, the agreement was executed between the
parties on 14.10.2007, and legal notice was issued to the respondents on
25.03.2019, expressing his willingness to perform his part of the contract. But,
in between, from 14.10.2007 - 25.03.2019, the appellant herein had not taken
any steps, rather he has thrown the burden of failure to perform their part of
the contract upon the respondents.
13. That, a careful perusal of the stipulation in Clause No. 4, reveals that it is
not clear as to who has to obtain the sale permission. It is stated that the
remaining amount shall be paid by the second party after obtaining permission
from the concerned authority. Even if it is accepted that the respondent being
the seller, has to obtain the permission from the concerned authority, yet, the
appellant ought to have been paid the remaining amount, within 3 months from
14.10.2007, or after obtaining sale permission, whichever is earlier.
14. The learned first appellate court, considering the statement and averment
made in the plaint had held that the limitation begins to run from 15.01.2008,
as the period of 3 months elapsed on 14.01.2008, from the date of execution of
the agreement dated 14.10.2007. The learned first appellate court had also
discussed Article 54 of the Limitation Act, which provides that the period of
limitation for specific performance of a contract, to bring the suit is 3 years and
the same begins to run from the date fixed for the performance, or if no such
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date is fixed, when the plaintiff/appellant has noticed that performance is
refused. And later on, the appellant herein issued legal notice to the
respondents on 25.03.2019. But, the limitation is ended on 14.01.2011, which
begin to run from 15.01.2008. So, the appellant herein ought to have preferred
the suit on or before 14.01.2011. But, he remained silent till 23.03.2019, for
long 8 years and on that day he had issued legal notice and filed the suit in the
month of March, 2020.
15. Though Mr. Dutta, learned senior counsel for the appellant submits that
the case of the appellant is covered by the second part of the Article 54 of the
Limitation Act, yet, the said submission of Mr. Dutta left this court unimpressed,
inasmuch as the said Article provides that the period of limitation for specific
performance of a contract to bring the suit is 3 years and the same begins to
run from the date fixed for the performance, or if no such date is fixed, when
the plaintiff has noticed that performance is refused. If the argument of Mr.
Dutta is accepted that as per Clause No. 4, the burden to obtain the necessary
sale permission lies upon the respondents, being the seller and within the period
of 3 months the respondents had failed to obtain the same, yet, the appellant
herein had noticed the absence of readiness and willingness on the part of the
respondent on 14.01.2011, itself, as the respondents had not obtained any sell
permission and as such, he could have approached the learned trial court for
specific performance of the contract, within the period of 3 years from
15.01.2008. But, the appellant herein failed to do the same within the
aforementioned period.
16. It is to be noted here that in the case of Dahiben vs. Arvindbhai
Kalyanji Bhanusali, reported in 2020 SCC Online SC 562, it has clarified
that the power of the courts under Order 7 Rule 11 of the C.P.C is mandatory in
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nature and may be exercised at any stage of the suit, either before registering
the plaint, or after issuing summons to the defendant, or before conclusion of
the trial. However, it has also clarified that the power conferred under Order 7
Rule 11 is a drastic one and that the requirements enumerated therein should
be strictly adhered to.
17. Thus, having examined the facts and circumstances on the record and also
taking note of the submission of Mr. Dutta, learned senior counsel appearing for
the appellant, this court is unable to agree with his submission that any of the
suggested substantial questions of law, as mentioned in the memo of appeal, is
involved herein.
18. It is, however, a fact that both the courts below had taken into account
three months, from the date of agreement, for specific performance of the
contract. But, after perusal of the Article 54 of the Limitation Act, it cannot be
said that the limitation will continue for indefinite period and it will begin to run
at the sweet will of the appellant herein. And as such, it cannot be accepted
that the limitation will start from the date of issuance of legal notice. Therefore,
to the considered opinion of this court, the limitation starts from when the
appellant herein had noticed absence of readiness and willingness to perform
their part of the contract by the respondent as the respondents had failed to
obtain sale permission on or within three months.
19. I have carefully gone through the decisions referred by Mr. Dutta and I
find that the decision so referred by him would not advance his argument,
inasmuch as the suit itself is barred by law of limitation. Had it not been the
case of limitation, then the ratio laid down in the aforementioned cases would
perhaps come into aid of Mr. Dutta.
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20. In the result and for the reason mentioned herein above, I find that no
substantial question of law is involved herein and accordingly, the same stands
dismissed at this motion stage itself.
JUDGE
Comparing Assistant
