Jaydeep Singh Chouhan vs Smt Shilpa Kothari
2022 Latest Caselaw 1220 MP

                                                             Civil Revision No.86/2021

                                        -1-



The High Court of Madhya Pradesh : Bench At Indore

 BEFORE SINGLE BENCH : HON'BLE MR. JUSTICE VIVEK RUSIA

                        Civil Revision No.86/2021
Petitioner    -                      Jaideep Singh Chauhan
                                     S/o Brijmohan Singh Chauhan
                                     Age - 52 years
                                     Occupation - Business
                                     R/o A-15, Avadhpuri Colony,
                                     B.H.E.L., Bhopal (M.P.)
                      versus

Respondent(s)-                 1.    Smt. Shilpa Kothari
                                     W/o Vijay Kothari
                                     Occupation - Housewife & Business
                                     Age - 49 years
                                     R/o E-42, Saket Nagar, Indore (M.P.)

                               2.    Smt. Monica Patni
                                     W/o Rahul Patni, Age - 43 years
                                     Occupation - Housewife & Business
                                     R/o A-1 / 304, Sehnai Residency,
                                     A.B. Road, Indore (M.P.)




       Shri Anant Prakash Polekar, learned counsel for the petitioner / defendant.
       Shri Mitul Saxena, learned counsel for the respondents / plaintiffs.




                             ORDER

Delivered on this 27th Day of January, 2022

The petitioner / defendant has filed this Revision under Section 115 of the Code of Civil Procedure, 1908 against the order dated 07.01.2021, whereby the application under Order VII Rule 11 of the C.P.C. has been dismissed.

02. The respondents / plaintiffs have filed a suit for specific performance of contract and permanent injunction against the petitioner / defendant.

03. The chronological events, which are necessary for deciding the issue involved in this revision are as under:- 26/11/79 Smt. Kamla Chauhan W/o Brajmohan Chauhan (mother of the petitioner / defendant) purchased the Civil Revision No.86/2021

plot i.e. House No.N-36, Saket Nagar, Indore, plot area 65/40 in total 2600 sq.ft. Thereafter, she obtained the permission from the Municipal Corporation and constructed a residential house (G + 1).

The petitioner / defendant is the eldest son of Kamla Chauhan and Brijmohan Chauhan apart from younger son Chiranjan Singh and daughter Pratima Chauhan. Brijmohan Chauhan expired on 30.01.1991. Younger brother Chitranjan Singh expired (unmarried) on 08.02.1994.

December, 1996 Kamla Chauhan and Pratima Chauhan went missing and a report of the missing persons was lodged. 24/12/04 The first appellate Court has declared Kamla Chauhan and Pratima Chauhan as dead.

02/09/06 The petitioner/defendant filed a suit for the succession of movable property of late Kamla Chauhan and obtained a succession certificate 01/05/13 Plaintiffs and defendant entered into an agreement of sale of the suit property in Rs.1,97,50,000/-. The plaintiff paid an amount of Rs.49,37,500/- on different dates and agreed to pay the remaining amount of Rs.98,75,000/- on or before 25.07.2013.

19/06/13 Rs.25,00,000/- vide cheque No.081752 and Rs.25,00,00/- vide cheque No.821310 was paid to the petitioner. In total Rs.99,37,500/- has been paid. According to the plaintiffs, the petitioner/defendant was required to obtain a succession certificate in respect of the suit property, hence, the sale deed could not be executed.

25/07/13 The last date for payment of the remaining amount of Rs.98,75,000/- before registration of the sale deed. 04/08/13 The petitioner / defendant served notice to the plaintiffs for termination of the contract. 12/08/19 The plaintiffs sent a reply that they have not violated any condition contract, whereas the defendant did not provided succession certificated. They are ready and willing to execute the sale deed.

12/09/13 The petitioner/defendant sent a reply through counsel there was no such condition of obtaining a succession certificate for suit property.

23/05/16 The plaintiffs submitted an application before the Collector in Jan Sunvai.

06/08/16 The petitioner / defendant submitted a reply in Jan Sunvai.

04. The petitioner / defendant appeared before the Civil Court along with an application under Order VII Rule 11 (d) of the C.P.C. that the present suit is liable to be rejected as the suit is Civil Revision No.86/2021

time-barred under Article 54 of the Limitation Act, 1963. It is submitted that as per the terms and conditions of the contract, the plaintiffs were liable to pay the entire sale consideration on or before 25.07.2013, therefore, vide notice dated 04.08.2013, the defendant has terminated the contract and informed the plaintiffs by sending notice. Therefore, the suit ought to have been filed within a period of three years on or before 12.08.2016, since the same is filed on 25.11.2016, hence, it is time barred under Article 54 of the Limitation Act, 1963.

05. The plaintiffs have opposed the aforesaid application by submitting that since the defendant did not submit the succession certificate, therefore, plaintiffs have not violated the terms and conditions of the agreement. The limitation would start from 12.09.2013 when the defendant gave a reply to the suit on 25.11.2016. Hence, the suit cannot said to be time-barred.

06. The learned Additional District Judge after considering the averments made in the plaint and the grounds raised by the the petitioner / defendant in the application under Order VII Rule 11 of the C.P.C. has held that in the succession certificate dated 16.09.2006 obtained by the petitioner / defendant from the Court of Fifth Civil Judge, Class-I, this property is not included and in order to avoid further dispute or complication, the plaintiffs have requested the defendant to produce the succession certificate. Hence, the plaintiffs approached the Collector in Jan Sunvai on 23.05.2016. It is further held that at this stage, the facts stated in the plaint cannot be treated as erroneous. The issue of limitation is an issue of mixed issue of question and fact which can be decided along with other issues after recording evidence, accordingly, the application has been rejected . Hence, the present revision is before this Court.

Civil Revision No.86/2021

06. Shri Polekar, learned counsel for the petitioner submits that the agreement dated 01.05.2013 clearly mandates that plaintiffs shall make payment of the remaining amount on 25.07.2013. The time was the essence of the contract and if the second party i.e. plaintiffs fail to pay the aforesaid amount, the defendant shall be free to alienate the property to others. There was no requirement of submitting the succession certificate by the petitioner / defendant. As per Article 54 of the Limitation Act, 1963, the limitation for filing a suit for specific performance of the contract is three years from the date fixed for the performance in the agreement. The suit ought to have been filed on or before 25.07.2016. It is further submitted by the learned counsel that even if the limitation is to be taken from the date when the plaintiffs have noticed about termination of contract even then the suit is time barred because the defendant has cancelled the contract vide notice dated 04.08.2013 and the plaintiffs filed the suit on 25.11.2016. In support of his contention, learned counsel has placed reliance upon judgments delivered by the Apex Court in the cases of Fatehji and Company & Another v/s L.M. Nagpal & Others reported in (2015) 8 SCC 390 and R.K. Parvatharaj Gupta v/s K.C. Jayadeva Reddy reported in (2006) 2 SCC 428.

07. Learned counsel appearing for the respondents / plaintiffs submits that issue of limitation is always a mixed question of law and facts, hence, the trial Court has rightly rejected the application at this stage. The plaintiffs have specifically pleaded in their plaint the date of cause of action accrued and the suit is filed within the period of three years. The suit falls under Articles 64 and 65 of the Limitation Act, 1963 for which the limitation period is 12 years. Out of Rs. 1,97,50,000/-, the plaintiffs have Civil Revision No.86/2021

paid Rs.99,37,500/- to the defendant, hence, there was no question that plaintiffs were not ready and willing to get the sale deed executed. The defendant has obtained the succession certificate in respect of other properties of the mother except for the suit property, therefore, the plaintiffs were right in demanding the succession certificate from him. Since the same was not given to him, therefore, the balance amount was withheld. The revision is liable to be dismissed.

08. I have heard the learned counsel for the parties and perused the record.

09. That the petitioner / defendant had obtained a declaration about the civil death of her mother and sister on 24.12.2004. Thereafter, he filed a civil suit i.e. Civil Suit No.43-A/2005 against the tenant / Still and Iron Limited and obtained the eviction decree by way of compromise dated 14.07.2006. Thereafter, he obtained a succession certificate in respect of movable property of the mother late Kamla Chauhan on 26.03.2005. All these documents were shown to the plaintiffs and after satisfying all the documents, an agreement to sale dated 01.05.2013 was executed in respect of the sale of the property.

10. The relevant part of the condition of the contract is reproduced below:-

";g fd] vuqcaf/kr lEifRr iSdh fdjk;snkj ds fo:) izFkei{k }kjk fu"dklu dk okn izLrqr fd;k x;k FkkA mDRk okn dzekad 43,@05 ¼t;nhiflag fo:) bUnkSj LVhy ,.M vk;ju feYl fyfeVsM½ esa Jheku chlosa vij ftyk U;k;k/kh'k egksn;] bUnkSj }kjk fnukad [email protected]@2006 dks mDr okn ds i{kksa ds jkthukesa ds vuqlj.k essa ikfjr fu.kZ; ,oa t;i= fnukad [email protected]@2006 ds vkyksd esa mDRk vuqcaf/kr lEifRr iSdh fdjk;snkj ls fjDRk vkf/kiR; izFkei{k dks izkIr gqvk FkkA ;g fd] Jhefr deyk pkSgku dh py LkEifRr ds laca/k esa izFkei{k }kjk IkzLrqr okjlk izdj.k dzekad [email protected] esa Jheku iape O;ogkj U;k;k/kh'k egksn;] oxZ&1 bUnkSj us vkns'k fnukad [email protected]@2006 ikfjr djrs izFkei{k dks Jhefr deyk pkSgku dk oS/kkfud mRrjkf/kdkjh gksuk ,oa Jhefr deyk PkkSgku dh py lEifRr izkIRk djus gsrq vf/kd`r gksus laca/kh vkns'k ikfjr fd;s FksA ;g fd] dqekjh izfrek pkSgku dh py lEifRr ds laca/k esa Civil Revision No.86/2021

izFkei{k }kjk izLrqr okjlk izdj.k dzekad [email protected] esa Jheku iape O;ogkj U;k;/kh'k egksn;] oxZ&1 bUnkSj us vkns'k fnukad [email protected]@2007 ikfjr djrs izFkei{k dks dqekjh izfrek pkSgku dk oS/kkfud mRrjkf/kdkjh gksuk ,oa dqekjh izfrek pkSgku dh py lEifRr izkIr djus gsrq vf/kd`r gksus laca/kh vkns'k ikfjr fd;s FksA ;g fd] bl pj.k esa of.kZRk leLr nLrkostksa dh izfr;ka izFkei{k us f}rh;i{k dks ns nh gS] f}rh;i{k us mDRk nLrkostksa dh tkWp dj vuqcaf/kr lEifRr dks ekSds ij ns[kdj] ukidj mDr laca/k esa viuh iw.kZ larqf"V dj yh gSA ;g fd] izfrQy iSfd :i;s 49]37][email protected]& ¼v{kjh :i;s muipkl yk[k lSarhl gtkj IkkWap lkS ½ dh jkf'k f}rh;i{k }kjk izFkei{k dks fnukad [email protected]@2013 rd vnk dh tkosxhA ;g fd izfrQy dh 'ks"k jkf'k :i;s 98]75][email protected]& ¼v{kjh :i;s vV~Bkuso yk[k fipksRrj gtkj½ f}rh;i{k }kjk fnukad [email protected]@2013 rd izFkei{k dks vnk dh fd;s tkosaxsA ;g fd] mDrkuqlkj laiw.kZ izfrQy dh jkf'k izkIr gksus ij izFkei{k }kjk f}rh;i{k ds O;; ls vuqcaf/kr lEifRr ds fodz;&i= dk fu"iknu o iath;u f}rh;i{k ds fgr esa djk;k tkosxkA"

11. It is clear from the aforesaid terms and conditions that the plaintiffs have paid the amount of Rs.99,37,500/- on 05.06.2013 and have agreed to pay the remaining amount of Rs.98,75,000/- on or before 25.07.2013 to the petitioner / defendant. It has also been made clear in the agreement to sale that if the plaintiffs fail to pay the aforesaid amount up to 25.07.2013, the defendant shall be entitled to forfeit the advance amount paid and shall be free to sell the suit property to others. There was no such condition of submission of succession certificate by the petitioner / defendant. Even otherwise, no succession certificate was required before the sale of immovable property. The petitioner became the absolute owner of the suit property after the death of his mother by virtue of Section 6 of the Hindu Succession Act, therefore, the contention of the plaintiffs that the remaining amount was not paid due to non-submission of succession certificate is unfounded and baseless.

12. So far as the plea of limitation is concerned, Article 54 of the Limitation Act, 1963 prescribes the period of limitation for filing of a suit for specific performance of the contract which is three years from the date fixed for the performance of the Civil Revision No.86/2021

contract. If no such date is fixed, the limitation would start when the plaintiffs have noticed that the performance is refused by him. The relevant provision is reproduced below:-

         Description       Period        Time from which period
           of suit      of limitation          begins to run
      For      specific Three years The date fixed for the
      performance of                  performance, or, if no such
      contract                        date is fixed, when the
                                      plaintiff has notice that
                                      performance is refused.

13. In this case, the date of execution of performance fixed in the contract is 25.07.2013, therefore, the period of limitation for filing a suit for the performance of the contract would be three years from 25.07.2013. The plaintiffs ought to have filed the suit on or before 25.07.2013. Even otherwise when the aforesaid amount was not paid up to 25.07.2013, the defendant served a notice dated 04.08.2013 informing the plaintiffs that due to non- fulfillment of the condition of the contract, the agreement is terminated resultantly the advance amount is forfeited and he is free to sell the property. Therefore, the defendant has informed the plaintiffs that the agreement could not be performed, hence, the limitation would start from 04.08.2013. The suit ought to have been filed on or before 04.08.2016. In both situations, the suit filed by the plaintiffs on 25.11.2016 is time barred.

14. After receipt of the notice on 04.08.2013, the plaintiffs gave a reply on 12.08.2013 first time asserting that there is a delay on the part of the petitioner / defendant in obtaining a succession certificate in terms of the provision of the Indian Succession Act. There is no such document or notice by the plaintiffs given to the defendant for submitting a succession certificate prior to it. The aforesaid notice was replied by the defendant on 12.09.2013 that it was never agreed between them for submission succession certificate, hence, that would not Civil Revision No.86/2021

extend the period of contract. There was no condition either in writing or in oral between them in respect of obtaining of succession certificate. The aforesaid reply was received by the plaintiffs but the suit was not filed on or before 12.09.2013. Even on this third count also, the suit is time barred on the basis of pleadings made in the plaint itself. No such reply or evidence would be necessary because as per the pleadings made in the plaint, the application under Order VII Rule 11 can be decided.

15. The Apex Court in the case of Janardhanam Prasad v/s Ramdas reported in (2007) 15 SCC 174 has held that Court, in applying the period of limitation would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation.

16. In the present case, the agreement prescribes the period for performance of the contract by the plaintiffs, hence, suit ought to have been filed within three years. The defendant was required to execute the sale deed on payment of the balance amount by the plaintiffs on or before 25.07.2013. Since the plaintiffs have not paid the balance amount before that date, therefore, there was a violation on the part of the plaintiffs in the performance of the contract which has resulted in the termination of the contract by the defendant. Even from the said date, the suit has not been filed. Hence, the impugned order dated 07.01.2021 is unsustainable and the suit is liable to be rejected.

The Civil Revision is allowed.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2022.01.28 11:47:43 +05'30'