Tarunbahi Santrambhai Varma vs Dahyabhai Muljibhai Patel
2025 Latest Caselaw 7262 Guj

Gujarat High Court

Tarunbahi Santrambhai Varma vs Dahyabhai Muljibhai Patel on 7 October, 2025

                                                                                                             NEUTRAL CITATION




                             C/CRA/307/2013                                 JUDGMENT DATED: 07/10/2025

                                                                                                              undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/CIVIL REVISION APPLICATION NO. 307 of 2013


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                        ================================================================
                                    Approved for Reporting                  Yes           No
                                                                                          No
                       ================================================================
                                              TARUNBAHI SANTRAMBHAI VARMA & ORS.
                                                            Versus
                                                DAHYABHAI MULJIBHAI PATEL & ORS.
                       ================================================================
                       Appearance:
                       MR KV SHELAT(834) for the Applicant(s) No. 1,2,3,4,5
                       MR AMRISH K PANDYA(3219) for the Opponent(s) No. 1
                       MR. ASHIT J VYAS(6323) for the Opponent(s) No. 1
                       RULE SERVED for the Opponent(s) No. 10,11,12,13,2,3,4,5,6,7,8,9
                       ================================================================
                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                        Date : 07/10/2025
                                                        ORAL JUDGMENT

1. The present Revision Application has been filed challenging the order dated 30.08.2013, passed below Exhibit- 27, in Special Civil Suit No.220 of 2011, whereby, the Principal Senior Civil Judge, Gandhinagar has rejected the application filed under the provision of Order VII Rule 11 of the Code of Civil Procedure.

2. For the sake of brevity the parties are referred to as per their original status as that in the suit.

3. The brief facts arising in the present Revision Application are that the plaintiff filed Special Civil Suit No.220 of 2011, on the ground that the plaintiff and defendant Nos.6 to 8 being the

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

owners of 5829 sq. meter property of Survey No.26 and 6582 sq. meter of Survey No.28, have sold the property by registered sale deed to defendant Nos. 1 to 5 and with respect to Survey No.26, a registered sale deed has been executed on 2.05.2006 for property admeasuring 5829 sq. meter and a registered sale deed has been executed on 13.06.2006, with respect to property admeasuring 6582 sq. meter of Survey No.28 and on the same date i.e. 13.06.2006, Memorandum of Understanding has been executed by defendant Nos.1 to 5, whereby they admit that the value of the suit property is Rs.32,56,250/- per bigha, and therefore, the amount for sale consideration will be Rs.3,65,32,161/- and in the said Memorandum of Understanding, it has been stated that over and above, the said amount of total sale consideration i.e. Rs.3,65,32,161/-, the defendant Nos.1 to 5 shall also adjust Rs.25 lakh/- with resepect to one shop and two flats at Swagat Rain Forest and after considering the sale consideration that was supposed to be paid by the defendant Nos.1 to 5 with respect to property situated at Survey No.26 and 28, further amount of Rs.3,65,32,161/- will have to be paid by defendant Nos.1 to 5 to the plaintiffs. The above referred amount also took into consideration, the sale consideration with respect to survey No.26 and 28 and one shop and two flats at Swagat Rain Forest.

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

4. Thereafter, on 19.01.2009 defendant No.1 issued public notice through his advocate in Sandesh Newspaper and thereafter defendant Nos.1 to 5 filed Civil Suit No.64 of 2009 to restrain the plaintiffs of Civil Suit No. 20 of 2011 from disturbing their possession in the suit property.

5. The present suit is filed on 22.06.2011, the defendants appeared in the said suit and filed application vide Exhibit-27, on the ground that the plaint is barred by law of limitation and after taking into consideration the plaint and the documents annexed with the plaint, the trial Court rejected the said application filed by defendant Nos.1 to 5, vide Exhibit-27. Hence, the present Civil Revision Application.

6. Learned advocate for the defendant has mainly argued that by way of registered Banakhat, dated 22.10.2005, it was agreed that land admeasuring 5829 sq. meter of survey No.26 and land admeasuring 6582 sq. meter of survey No.28 i.e. in total admeasuring 12411 sq. meter was to be sold, therefore, the sale deed has been executed on 02.05.2006 whereby the suit property sold.

7. It is the case of the defendant that Memorandum of Understanding, dated 13.06.2006, on which the plaintiffs are

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

relying is neither notarized nor registered and the same is between the defendant Nos.1 to 5 and plaintiff and the said Memorandum of Understanding has lot of blanks which have never been filled up, and the cause of action has first accrued on 13.06.2006 i.e. on the date of Memorandum of Understanding was entered into between the defendants and plaintiff and also on 02.09.2006, when by way of Memorandum of Understanding, the amount of Rs.90 lakh was to be recovered by the plaintiff, pursuant to the Memorandum of Understanding, dated 13.06.2006 in view of the fact that the cheques that were given to the plaintiff were dated 02.09.2006 as stated in the said Memorandum of Understanding, therefore, the plaintiff could not have filed the suit for cancellation of sale deed executed by the plaintiff after the period of limitation and that the case of the plaintiff was of unpaid seller, the suit was barred by law.

8. Moreover, learned advocate for the defendant has also argued that the plaintiff has not filed suit for recovery of alleged amount of Rs.90 lakh and it is the plaintiff's case that the plaintiff has sought for specific performance, with respect to one shop and two flats at Swagat Rain Forest and that there is neither any mention of shop number nor flat number in the Memorandum of Undersanding for which the plaintiff is seeking specific performance. Moreover, if the said Memorandum of

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

Understanding is taken into consideration, the said Memorandum of Understanding does not state about execution of sale deed with respect to one shop and two flats at Swagat Rain Forest, but only states that an amount of Rs.25 lakh is deposited towards one shop and two flats at Swagat Rain Forest.

9. Moreover, the question of refusal of execution of the Memorandum of Understanding and filing of Civil Suit in the year 2009 by defendant Nos.1 & 2 will be of no consequence in view of the fact that the Memorandum of Understanding, dated 13.06.2006, specifically talks about recovery of Rs.90 lakh and cheques pursuant to the same had also handed over to the plaintiff, dated 02.09.2006, and therefore, the suit that has been filed by the plaintiff is hopelessly time barred, and therefore, the plaint is required to be rejected.

10. Learned advocate for the defendant has relied on the judgment reported in 2025 (0) AIJEL - HC 250791 in the case of Dhulaji Somaji Thakor v. Gordhanbhai Hathibhai Patel and 2022 (0) AIJEL HC 244741 in the case of Whiteswan Buildcon Llp v. Thakor Praveenji Mangaji.

11. Learned advocate for the plaintiff has mainly argued that if the entire plaint is taken into consideration, it is not the case of

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

the plaintiff that the plaintiff has filed the suit for recovery of sale consideration but the said suit has been filed for specific performance of the Memorandum of Understanding executed between the plaintiff and defendant on 13.06.2006. If the terms and conditions of the said Memorandum of Understanding are taken into consideration, the fact remains that the defendant Nos.1 to 5, had agreed to pay substantial amount of sale consideration and the fact remains that the said Memorandum of Understanding has been executed on the same date of execution of sale deed i.e. 13.06.2006. Moreover, in the said Memorandum of Understanding, there is also an agreement, whereby defendant Nos.1 to 5, have agreed to transfer one shop and two flats at Swagat Rain Forest, and therefore, the Special Civil Suit is for specific performance of the said Memorandum of Understanding. The fact remains that by way of present suit i.e. suit for specific performance of Memorandum of Understanding that has been executed on 13.06.2006, the plaintiff is seeking implemention of said Memorandum of Understanding, the fact of the said Memorandum of Understanding having not been registered, will not be any consequences as the suit is for specific performance, therefore, in view of the provisions of section 49 of Registration Act, the said document i.e. Memorandum of Understanding dated 13.06.2006 can be taken into consideration.

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

12. Moreover, it has also been argued by learned advocate for the plaintiff that there is a relief with respect to execution of sale deed for one shop and two flats at Swagat Rain Forest, and therefore, it cannot be said that the plaint is barred by law.

13. With respect to the point of limitation, learned advocate for the plaintiff has argued that the Memorandum of Understanding does not give a fixed date for performance, and therefore, in view of the fact that defendant No.1, issued public notice, only on 19.01.2009, refusing the execution and implementation of Memorandum of Understanding dated 13.06.2006, the cause of action to file the suit arose only on 19.01.2009 and specifically after defendant Nos.1 to 5 filed Regular Civil Suit No.64 of 2009, and therefore, the suit that has been filed by the plaintiff is within the period of limitation in view of the fact that the suit has been filed on 22.06.2011 and in view of the said fact, the present Revision Application required to be rejected.

14. Learned advocate for the plaintiff has relied on the judgment reported in 2023 LiveLaw (SC) 1033 in the case of Eldeco Housing and Industries Limited v Ashok Vidyarthi and Others and 2022 (0) AIJEL SC 70471 in the case of Gurdev Singh v.Harvinder Singh.

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

15. Having heard learned advocate for the plaintiff and defendants and having considered the plaint and documents annexed with the plaint, the fact remains that the suit that has been filed by the plaintiff is for specific performance of Memorandum of Understanding arrived at between the plaintiff and defendant Nos.1 to 5, on 13.06.2006, whereby defendant Nos.1 to 5 have admitted that the amount that has mentioned in the sale deed is not the actual amount and other than the said amount that has been mentioned in the sale deed, the defendant Nos.1 to 5 shall pay the remaining amount. Moreover, the said Memorandum of Understanding also states that defendant Nos.1 to 5, has adjusted Rs.25 lakh with respect to one shop and two flats of Swagat Rain Forest, and therefore, the said suit is filed for implementation and execution of the said Memorandum of Understanding dated 13.06.2006.

16. It is not the case of the plaintiff that, the plaintiff is trying to challenge the sale deed in view of the fact that the plaintiff is unpaid seller, in view of the fact that there is an Memorandum of Understanding which has been entered into between the plaintiff and defendant Nos.1 to 5, whereby a further amount was to be paid by defendant Nos.1 to 5 to the plaintiff with respect to the sale deed that have been executed with respect to survey No.26 and 28. Even if, the said fact is also taken into

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

consideration that the plaintiff has filed a suit on the ground that he is unpaid seller, the fact remains that by way of Memorandum of Understanding dated 13.06.2006, the defendant Nos.1 to 5 had agreed to adjust Rs.25 lakh for one shop and two flats of Swagat Rain Forest, and therefore, the said claim for specific performance for the above referred properties cannot be said to be barred by law in view of the fact that the plaintiff has sought for an independent relief for specific performance with respect to one shop and two flats at Swagat Rain Forest.

17. With respect to the fact that the MOU has been executed on 13.06.2006 and the suit that has been filed on 22.06.2011 and defendant Nos.1 to 5 have raised a plea that as the sale deed has been registered on 13.06.2006 and the suit challenging the said registered sale deed had to be filed on 12.06.2009 and in view of the fact that the suit have been filed on 22.06.2011, the plaint is hopelessely time barred, if the fact stated in the plaint are taken into consideration, on the date when the sale deed which is executed between the plaintiff and defendant Nos.1 to 5, they also executed the Memorandum of Understanding, whereby a further amount was agreed to be paid by defendant No.1 to 5 to the plaintiff with respect to property situated at survey No.26 and 28, therefore, the entire cause of the plaintiff to file the suit

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

in pursuant to the public notice and Civil Suit filed by the defendant which is within the period of limitation.

18. The judgment that has been relied upon by the learned advocate for the defendant will not be applicable to the facts of the case in view of the fact that, the facts of the said case and the present case are totally different. In the present suit the plaintiff sought the relief for cancellation of the sale deed and has also sought for specific performance of the agreement dated 13.06.2006 and if the reliefs that have been sought in the plaint are taken into consideration, the fact remains that in the Memorandum of Understanding dated 13.06.2006, there is a specific mention that an amount of Rs.25 lakh has been deducted from the total amount due and payable to the plaintiff and for the said Rs.25 lakh, there is mention of one shop and two flats at Swagat Rain Forest and the fact remains that the said Memorandum of Understanding does not fix a date for performance of contract. Moreover, the fact also remains that it is the case of the defendant that Memorandum of Understanding does not state that the said one shop and two flats have been sold or are to be sold to the plaintiff and just because the amount of Rs.25 lakh is deducted for one shop and two flats will not entitle the plaintiff to file a suit for specific performance but in the present case the fact remains that it is the case of the plaintiff

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

that he is not an owner of one shop and two flats at Swagat Rain Forest and has sought for specific performance for the same, therefore unless and until oral evidence is taken, the said fact cannot be decided while deciding application under the provision of Order VII Rule 11 of the Code of Civil Procedure, therefore, the judgments relied on by the defendnat will not be of any assistance to the defendant. With respect to the judgment relied upon by learned advocate for the plaintiff, the said judgment will be applicable to the facts of the present case in view of the fact that no amount on record of merits of the controversy can be examined at the stage of decision of application under Order VII Rule 11 of the Code of Civil Procedure, and therefore, unless and until the matter is decided on merits, after leading oral evidence, the said issue whether the amount of Rs.25 lakh was deducted from the amount that was to be paid to the plaintiff ,was subject to execution of a sale deed in favour of the plaintiff with respect to one shop and two flats, and therefore, it cannot be said that the plaint is barred by law of limitation.

19. Moreover, the relief that have been sought are on two separate and different cause of action (i) being that in view of the Memorandum of Understanding the defendant Nos.1 to 5 had to pay further amount with respect to survey No.26 and 28

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

to the plaintiff, (ii) by way of execution of the Memorandum of Understanding dated 13.06.2006, the defendant Nos.1 to 5 had agreed to execute the sale deed with respect to one shop and two flats of Swagat Rain Forest, and therefore, there are multiple cause of action, and therefore, under the provision of Order VII Rule 11 of the Code of Civil Procedure, when the other reliefs are maintainable and they are arising from independent cause of action, plaint cannot be rejected in its entirety under the provisions of Order VII Rule 11 of the Code of Civil Procedure. The fact remains that in the present case, Memorandum of Understanding dated 13.06.2006, does not give a fixed date for performance, and therefore, the date of refusal can only be stated to be 19.01.2009 that is when the defendant Nos.1 to 5 gave a public notice in Sandesh Newspaper, and therefore, the suit that has been filed by the plaintiff is within three years from the said refusal.

20. In view of the fact that the suit is of the year 2011, the trial Court is directed to decide the suit as expeditiously as possible but not later than one year from the date of receipt of present order.

21. In view of the said fact, the present Civil Revision Application is required to be dismissed and is hereby dismissed.

NEUTRAL CITATION

C/CRA/307/2013 JUDGMENT DATED: 07/10/2025

undefined

The observation made in the present order is only after taking into consideration the plaint and documents annexed with the plaint and while deciding the suit, the Trial Court shall take into consideration the written submissions and oral evidence of the parties and shall not be influenced by the order that has been passed in the present Revision Application only after considering the plaint and documents annexed with the plaint.

(SANJEEV J.THAKER,J)

Manoj Kumar Rai