Madras High Court
B. Govindharaj vs The Government Employees on 5 July, 2021
C.R.P.(PD) No. 2865 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD) No. 2865 of 2018
&
CMP No.16854 of 2018
B. Govindharaj ... Petitioner
Vs.
1. The Government Employees
Welfare Association
rep. by its President K.M. Devaraj &
its Secretary P. Ganesan
No.43/274, Kalamegam Street
Thiruvallur Town, Thiruvallur District.
2. The Managing Trustree
Sudarasanam Educational and Charitable Trust
No.11/5 1st East Main Road, Shenor Nagar
Chennai 600 030. ... Respondents
Prayer: Criminal Revision Petition filed under Section 115 of the Civil
Procedure Code against the fair order and decreetal order dated
05.06.2018 passed in I.A.No.11/18 in O.S. No. 27/2014 on the file of the
III Additional District Judge, Thiruvallur at Poonamalle.
Page 1 of 25
C.R.P.(PD) No. 2865 of 2018
For Petitioner : Dr. A. Thiyagarajan,
Senior Counsel
for Mr.M.Nallathambi
Respondent No.1 : Notice served
No appearance
For Respondent No.2 : Mr.M.V.Seshachari
ORDER
This civil revision petition is filed against the fair and decreetal
order dated 05.06.2018 passed in I.A.No.11/2018 in O.S. No. 27/2014 on
the file of the III Additional District Judge, Thiruvallur at Poonamalle,
thereby dismissing the petition for extension of time to pay the deficit
court fees.
2.The petitioner is the plaintiff and the respondents are the
defendants. The petitioner filed a suit for specific performance in respect
of the suit property and permanent injunction.
C.R.P.(PD) No. 2865 of 2018
3.While filing the suit, the petitioner valued the suit property at
Rs.2,28,06,000/- and the Court fee was fixed at Rs.17,10,451/-.
However, the petitioner paid only a sum of Rs.1,451/-. Therefore, the
petitioner filed the petition under Section 149 C.P.C for extension of
time for the payment of deficit court fees. The said application was
returned for some defect and the same was re-presented with the delay of
91 days in re-presenting the application under Section 149 of C.P.C.
Though the Court below allowed the petition to condone the delay in re-
presentation, dismissed the petition filed for extension of time for the
payment of deficit court fees. Aggrieved by the same, the present Civil
Revision Petition has been filed.
4.The learned Senior counsel appearing for the petitioner
submitted that the petitioner filed a suit for specific performance and
permanent injunction and valued the suit for a sum of Rs.2,28,06,000/-
and the Court fee was fixed at Rs.17,10,451/-. However, the petitioner
paid only a sum of Rs.1,451/- as court fees. The remaining court fee was
not paid due to non-availability of court fee stamps.
C.R.P.(PD) No. 2865 of 2018
5.Initially, a petition was filed in I.A.No.56 of 2014 for
extension of time for payment of deficit court fee and thereafter, it was
returned for want of certain compliance. When the said petition was re-
presented, there was a delay of 91 days in re-presentation and the
condone delay petition was numbered as I.A.No.389 of 2011 and the
same was allowed on 21.01.2014. Similarly, the petition for extension of
time filed under Section 149 C.P.C was also allowed. However, the
order in I.A.No.389 of 2011 was challenged before this Court in
CRP.(PD).No.4089 of 2014 and this Court, by an order dated
23.10.2017, set aside the order in I.A.No.389 of 2011 and this Court
directed the Court below to number the petition for extension of time and
to dispose of the said application within a period of one month from the
date of receipt of a copy of this order.
6.As directed by this Court, the Court below re-numbered the
petition and dismissed the petition for extension of time to pay the deficit
court fee. He further submitted that only for the reason that, at the time of
C.R.P.(PD) No. 2865 of 2018
filing the suit, there was no court fee stamp available and as such, the
petitioner could not pay the entire court fees. In fact, on the date of filing
of the petition for extension of time is on 11.08.2011, the petitioner paid
the deficit court fees. According to the learned senior counsel for the
petitioner, though specific time of 11 months was fixed in the agreement
of sale, after expiry of 11 months, the respondents received subsequent
payments till 21.07.2007. Therefore, time is not the essence of the
contract and the petitioner also paid the deficit court fees, when filing the
petition for extension of time. Now, the suit is numbered and in fact, the
respondents also filed their written statement and the suit is pending for
trial.
7.Per contra, the learned counsel for the respondents contended
that the very suit itself is barred by limitation, since the time is essence of
the contract. As per the agreement of sale dated 04.11.2004, the total
sale consideration is fixed at Rs.1,05,40,000/- and a sum of
Rs.25,00,000/- was paid as advance. The balance sale consideration has
to be paid by the petitioner within a period of 11 months from the date of
C.R.P.(PD) No. 2865 of 2018
the agreement of sale. Though there is an endorsement for the receipt of
part of the balance sale consideration after expiry of 11 months as
specifically stipulated in the agreement of sale, it does not mean that
extended the time to perform their part of the contract. Unless there is a
specific endorsement in respect of extension of time, the petitioner ought
to have filed the suit within a period of three years from the date of
expiry of time stipulated. Admittedly, the agreement of sale was entered
on 04.11.2004 and time was fixed as 11 months to perform their part of
the contract. The suit has been filed only on 21.07.2010 and therefore,
the suit is barred by limitation. When the suit itself is barred by
limitation, the petitioner is not at all entitled for extension of time to pay
the deficit court fees under Section 149 of C.P.C. He further submitted
that the receipt of the subsequent payment after expiry of time as
stipulated in the agreement of sale does not mean that the time is
extended automatically to perform their respective part of the contract.
In this regard, the learned counsel for the petitioner relied upon the
judgment reported in (2012) 7 SCC 738 = MANU/SC/0516/2012
(A.Nawab John and Ors Vs. V.N.Subramaniyam), (2019)6 MLJ 381 =
C.R.P.(PD) No. 2865 of 2018
MANU/TN/5113/2019 (Sundarammal and Ors. Vs. N.Adinarayanan
and Ors.), (1994)1 MLJ 146 = MANU/TN/0335/1993 (B.P.Samiappan
and Ors. Vs. Arunthavaselvan and Ors.) and (2011) 3 MWN 780 =
MANU/TN/3719/2011 (Duraikannu Naicker Vs. K.Ramachandra
Iyer).
8.Heard the learned counsel for the petitioner as well as the
learned counsel for the respondents.
9.The petitioner is the plaintiff and the respondents are the
defendants. The petitioner filed a suit for specific performance on the
basis of the agreement of sale on 04.11.2004 and permanent injunction.
According to the said agreement of sale, the total sale consideration was
fixed at Rs.1,05,40,000/- for the suit properties. On the date of the
agreement of sale, the petitioner paid a sum of Rs.25,00,000/- as advance
towards part of the sale consideration and the remaining amount to be
paid by the petitioner within a period of 11 months and on receipt of the
same, the respondents have to execute the sale deed in favour of the
C.R.P.(PD) No. 2865 of 2018
petitioner herein. Admittedly, the petitioner did not pay the balance sale
consideration within a period of 11 months from the date of agreement
of sale. However, he made subsequent payments till 21.07.2007. On the
strength of the agreement of sale, the petitioner has filed the suit for
specific performance and for permanent injunction. The petitioner
valued the suit for a sum of Rs.2,28,06,000/- and the court fees was fixed
at Rs.17,10,451/-. However, the petitioner paid a sum of Rs.1,451/- as
court fees. Thereafter, the petitioner filed a petition under Section 149
CPC for extension of time to pay the deficit court fees. The said
application was returned for want of certain compliance. It was re-
presented with a delay of 91 days in re-presentation of the petition for
extension of time to pay the deficit court fees. It was numbered as
I.A.No.389/2011 and the Court below allowed the same by an order
dated 21.01.2014. Similarly, the petition for extension of time also
numbered as I.A.No.56/2014 and the same was also allowed on
21.01.2014. It was challenged before this Court by the respondents in
CRP.No.4089/2014 and this Court, by an order dated 23.10.2017,
directed the Court below to number the petition for extension of time and
C.R.P.(PD) No. 2865 of 2018
dispose of the same within a period of one month from the date of receipt
of a copy of this order. Unfortunately, the respondents failed to bring to
the notice of this Court that the extension of time petition has already
been numbered as I.A.No.56/2014 and it was allowed simultaneously
along with the petition to condone the delay in re-presentation.
10.In the meanwhile, the suit was transferred from the file of
the Principal District Court, Thiruvallur to the Court of III Additional
Court, Poonamallee and the suit was numbered as O.S.No.27/2014. As
directed by this Court, the petition for extension of time was renumbered
as I.A.No.11/2018 and the same was dismissed. The point for
consideration is that whether the petition for extension of time to pay the
deficit court fee can be allowed, when the suit itself is barred by
limitation and whether the suit is barred by limitation.
11.The date of agreement is 04.11.2004 and the time fixed to
perform the part of the contract is 11 months. Admittedly, the petitioner
did not pay the balance sale consideration within a period of 11 months
C.R.P.(PD) No. 2865 of 2018
from the date of agreement of sale. However, subsequently, he made
payments till 21.07.2007 on various dates. The said payment was also
duly acknowledged by the respondents and endorsement has been made
in the backside of the agreement of sale. It is pertinent to note that
though the respondents received the subsequent payments, there was no
endorsement to the effect that the time to perform their part of the
contract is extended. A perusal of the averments made in the plaint does
not whisper anything about the extension of contract from date of expiry
of the period of 11 months. As per the agreement of sale, the time ended
on 04.10.2005. Therefore, Article 54 of the Indian Limitation Act would
apply in respect of the suit for specific performance.
12.Admittedly, the present suit has been filed only on
21.07.2010. Therefore, the suit is clearly barred by limitation. However,
the petitioner calculated the limitation from his last payment made on
21.07.2007. The question that arises is when the suit is barred by
limitation, whether the petitioner is entitled for extension of time to pay
the deficit court fees. In this regard, the learned counsel for the
C.R.P.(PD) No. 2865 of 2018
petitioner relied upon the judgment reported in (2012) 7 SCC 738 =
MANU/SC/0516/2012 (A.Nawab John and Ors. Vs.
V.N.Subramaniyam) in which, paragraphs 34, 35 and 37 are extracted
hereunder:
“ 34.That leads us to the next question
regarding the legal character of Section 149. Is
it a provision conferring authority on the Court
to call upon a plaintiff to make payment of court
fee which was found to be due but short paid on
the plaint or is it a provision conferring a right
on the plaintiff to make good the deficit court fee
at any point of time irrespective of the provisions
of the law of limitation and other provisions and
principles of law.
35.We have already noticed that under
Order VII Rule 11, a plaint, which has not
properly valued the relief claimed therein or is
insufficiently stamped, is liable to be rejected.
However, under Rule 13 such a rejection by
itself does not preclude the plaintiff from
presenting a fresh plaint. It naturally follows
that in a given case where the plaint is rejected
C.R.P.(PD) No. 2865 of 2018
under Order VII Rule 11 and the plaintiff
chooses to present a fresh plaint, necessarily the
question arises whether such a fresh plaint is
within the period of limitation prescribed for the
filing of the suit. If it is to be found by the Court
that such a suit is barred by limitation, once
again it is required to be rejected under Order
VII Rule 11 Clause (d). However, Section 149
Code of Civil Procedure, as interpreted by this
Court in Mannan Lal (supra), confers power on
the Court to accept the payment of deficit court
fee even beyond the period of limitation
prescribed for the filing of a suit, if the plaint is
otherwise filed within the period of limitation.
Therefore, the rigour of Order VII Rule 11 Code
of Civil Procedure and also Section 4 of the
Tamil Nadu Act is mitigated to some extent by
the Parliament when it enacted Section 149 Code
of Civil Procedure. We may not forget that
Limitation is only a prescription of law; and
Legislature can always carve out exceptions to
the general rules of limitation, such as Section 5
of the Limitation Act which enables the Court to
condone the delay in preferring the appeals etc.
C.R.P.(PD) No. 2865 of 2018
36. . . .
37.It is well settled that the judicial
discretion is required to be exercised in
accordance with the settled principles of law. It
must not be exercised in a manner to confer an
unfair advantage on one of the parties to the
litigation. In a case where the plaint is filed
within the period of limitation prescribed by law
but with deficit court fee and the plaintiff seeks to
make good the deficit of the court fee beyond the
period of limitation, the Court, though has
discretion under Section 149 Code of Civil
Procedure, must scrutinise the explanation
offered for the delayed payment of the deficit
court fee carefully because exercise of such
discretion would certainly have some bearing on
the rights and obligations of the defendants or
persons claiming through the defendants. (The
case on hand is a classic example of such a
situation.) It necessarily follows from the above
that Section 149 Code of Civil Procedure does
not confer an absolute right in favour of a
plaintiff to pay the court fee as and when it
C.R.P.(PD) No. 2865 of 2018
pleases the plaintiff. It only enables a plaintiff to
seek the indulgence of the Court to permit the
payment of court fee at a point of time later than
the presentation of the plaint. The exercise of the
discretion by the Court is conditional upon the
satisfaction of the Court that the plaintiff offered
a legally acceptable explanation for not paying
the court fee within the period of limitation.”
and further the judgment reported in (2019) 6 MLJ 381
(Sundarammal and Ors. Vs. N.Adinarayanan and Ors.) , in which,
paragraph No.13 is as follows:
“13.Though Section 149 of CPC confers
discretionary power on the Court to accept
payment of deficit court fee even beyond the
period of limitation prescribed for the filing of a
suit, if the plaint is otherwise filed within the
period of limitation, this discretion should be
exercised properly by the Court.”
13.The Hon'ble Supreme Court of India held that the
provisions under Section 149 C.P.C confers power on the Court to accept
C.R.P.(PD) No. 2865 of 2018
payment of deficit court fee even beyond the period of limitation
prescribed in filing of a suit, if the plaint is otherwise filed within the
period of limitation. In the case on hand as stated supra, admittedly, the
petitioner filed the suit beyond the period of three years from the date of
expiry of the contract viz., on 04.10.2005. When a specific time is fixed
in the contract, Article 54 applies in case of a suit for specific
performance and it is relevant to extract Article 54 of the Indian
Limitation Act as follows:
Description of suit Period of Limitation Time from which period
begins to run
54.For specific Three years The date fixed for the
performance of a contract performance, or, is no such
date is fixed, when the
plaintiff has notice that
performance is refused.
14.Therefore, the petitioner ought to have filed the suit on or
before 03.10.2008. Hence, the present suit is clearly barred by limitation
and as such, the petitioner is not entitled to pay the deficit court fee.
C.R.P.(PD) No. 2865 of 2018
15.The petitioner, after expiry of time stipulated in the
agreement of sale, made certain payments and the same were duly
received by the respondents till 21.07.2007. Those endorsements were
made in the agreement of sale dated 04.11.2004. However, time is not
extended to perform their part of the contract. Though the petitioner
made subsequent payments after expiry of contractual period, it would
not mean that the period of contract was extended till the last payment.
The last payment was made on 21.07.2007 and even till filing of the suit
on 21.07.2010, the petitioner failed to show that he was ready and willing
to perform his part of the contract. It shows that the petitioner failed to
prove his readiness and willingness to perform his part of the contract.
In this regard, the learned counsel for the petitioner relied upon the
judgment reported in (1994) 1 MLJ 146 = MANU/TN/0335/1993
(B.P.Samiappan and Ors. Vs. Arunthavaselvan and Ors.), in which,
para 6 is extracted hereunder:
“6.After hearing counsel on both sides,
we are of the view that it is not necessary to
consider the various issues of facts, which were
C.R.P.(PD) No. 2865 of 2018
considered by the court below. We are taking up
for consideration the two questions of law, one
on limitation and the other on the provisions of
the Tamil Nadu Land Reforms Act. In so far as
the limitation is concerned, Article 54 of the
Limitation Act is very clear in its terms. The
period of limitation fixed for a suit for specific
performance of a contract is three years from the
date fixed for the performance, or, if no such
date is fixed, when the plaintiff has notice that
performance is refused. In the present casse,
time was originally fixed in the agreement for a
period of one year. Subsequently, it was
extended by endorsements upto 13th August 1972.
Thereafter, there was no extension as such.
Ex.A-5 in only a receipt for payment of
Rs.19,000/- and it does not extent the period for
performance. In fact, that payment was made on
3.8.1972 before the expiry of the period fixed
under the earlier endorsement dated 13.05.1972.
It is not the case of the plaintiff in the pleadings
that time was extended as between the parties by
implication. In paragraph 8, it is stated as
follows:
C.R.P.(PD) No. 2865 of 2018
The plaintiff states, the time of one
year for performance stipulated in the agreement
to sell is not the essence of contract for one
reason that the agreement is with regard to
agricultural immovable properties and for the
second that parties themselves never regarded or
intended that time should be of essence of
contract. The subsequent conduct of the parties
and turn of events also will show that time was
not regarded as essence of contract.
Again in paragraph 23 it is stated,
The plaintiff states that the suit is in
time. Performance of suit agreement was
refused by defendants 1 and 2 only on 31.07.78
(i.e.) for the first time through their reply notice,
which gives plaintiff cause of action to sue and
hence the suit is not barred by limitation.
In the cause of action paragraph
(paragraph 25) it is stated that the cause of
action for the suit arose on 12.4.1971, the date of
suit agreement to sell, on 15.5.1972 and
C.R.P.(PD) No. 2865 of 2018
13.08.1972 when the time was extended, on
29.6.1978 when the plaintiff requested
performance through a notice and on 31.7.1978
when defendants 1 and 2 for the first time
disowned their duties under the contract and
refused to execute the sale. Thus, there is
absolutely no whisper in the plaint that the
parties either by express agreement or by implied
agreement extended the time for performance of
the contract. Hence, by the terms of Article 54 of
the Limitation Act, the suit is filed beyond the
period prescribed therefor. Admittedly it is
beyond the period of three years from the date
fixed for performance in the agreement. Hence,
the suit is barred by limitation. The view taken
by the court below that time is not the essence of
the contract and, therefore, the suit is in time is
unsustainable. It is one thing to say that time is
not the essence of the contract and it is another
thing to say that the suit is barred by limitation.
In the present case, the suit is governed by
Article 54 of the Limitation Act and it is barred
by limitation.”
C.R.P.(PD) No. 2865 of 2018
and the judgment reported in (2011) 3 MWN 780 =
MANU/TN/3719/2011 (Duraikannu Naicker Vs. K.Ramachandra
Iyer), in which, paragraphs 12, 13 & 14 are extracted hereunder:
“12.Under Article 54 of the Limitation
Act, the suit for specific performance has to be
filed within three years from the date fixed for
the performance and if No. such date is fixed,
from the date when the plaintiff has notice that
performance is refused. As stated supr, the
agreement of sale was dated 1.4.1994 and six
months time was provided in the agreement of
sale and therefore, after the expiry of six months
viz., 30.9.1994, within three years, the plaintiff
ought to have filed the suit for specific
performance. Admittedly, the suit was filed on
9.2.1998. Therefore, the suit is barred by
limitation.
13.Further, it was contended by the
Learned Counsel for the Respondent that under
Exs.A3 and A4, payments were made on
12.1.1995 and 16.3.1995 and the same were
C.R.P.(PD) No. 2865 of 2018
accepted by the Appellant and therefore, the
payments made under Exs.A3 and A4 would
extent the period of limitation and therefore, the
suit filed on 9.2.1998 is within the period of
limitation.
14.The argument of the Learned
Counsel for the Respondent cannot be accepted.
Normally, the payment made will extend the
period of limitation only in respect of money
transaction. Here, in a suit for specific
performance, any payment made during the
period of three years from the date of agreemetn,
will not extent the period of limitation and
parties cannot claim that from the last date of
payment, they are entitled to seek for
performance of the contract within a periiod of
three years. The reason is that as per the third
column to Section 54 of the Limitation Act, the
period of limitation commences from the date
fixed for the performance or when the
performance was refused. In an agreement of
sale, when the date was fixed, the time begins to
run from the expiry of the date fixed for
C.R.P.(PD) No. 2865 of 2018
performance of the contract and it can be
extended only by a written agreement by the
parties extending the periiod for performing the
contract. Therefore, in the absence of any
agreement or endorsement made by the parties
while making the payment that the period is also
extended for performing the contract, me
repayment will not extend the period of
limitation. This has been held by the Division
Bench of this Court in (1994) 1 MLJ 146 (cited
supra).
16.This Court held that in a suit for specific performance, any
payment made subsequent to the period stipulated in the agreement of
sale will not extend the period of limitation and the parties cannot claim
that from the last date of payment, they are entitled to seek performance
of contract. As per Article 54 of the Limitation Act, a suit for specific
performance has to be filed within a period of three years from the date
fixed for the performance and if no such date is fixed from the date, when
the plaintiff has noticed that performance is refused. In the case on hand,
the time was fixed as 11 months from the date of the agreement of sale
C.R.P.(PD) No. 2865 of 2018
viz., on 04.11.2004 and the petitioner ought to have filed the suit within
three years from 04.10.2005. Admittedly, the present suit has been filed
only on 21.7.2010 and as such, the suit itself is barred by limitation. In an
agreement of sale, when the date is fixed, the time begins to run from the
expiry of the date fixed for performance of the contract and it can be
extended only by a written agreement by the parties extending the period
for performing the contract. Hence, in the absence of any agreement or
endorsement made by the parties, while making subsequent payments
that the period is also extended for performing the contract, mere
payment will not extend the period of limitation.
In view of the above discussions, this Court finds no infirmity
or illegality in the order passed by the Court below. Accordingly, the
civil revision petition is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
05.07.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
sms
C.R.P.(PD) No. 2865 of 2018
To
1. The Government Employees
Welfare Association
rep. by its President K.M. Devaraj &
its Secretary P. Ganesan
No.43/274, Kalamegam Street
Thiruvallur Town, Thiruvallur District.
2. The Managing Trustree
Sudarasanam Educational and Charitable Trust
No.11/5 1st East Main Road, Shenor Nagar
Chennai 600 030.
3.The III Additional District Judge, Thiruvallur at Poonamalle.
C.R.P.(PD) No. 2865 of 2018
G.K.ILANTHIRAIYAN, J
sms
C.R.P.(PD) No. 2865 of 2018
&
CMP No.16854 of 2018
05.07.2021
