Telangana High Court

M/S. Vasconengineers Limited vs M/S Paradigm Corporation Pvt.Ltd on 25 October, 2021

Bench: Ujjal Bhuyan, Chillakur Sumalatha

            HONOURABLE SRI JUSTICE UJJAL BHUYAN
                                        AND
            HONOURABLE DR.JUSTICE C.SUMALATHA

                            C.R.P.No.390 OF 2021

ORDER: (Per Hon'ble Sri Justice Ujjal Bhuyan)

1.     Heard learned counsel for the petitioner.

2.     Having regard to the order that is proposed to be passed and

considering the stage at which the impugned order was passed, issuance

of notice to respondents may not be necessary.

3. This civil revision petition has been filed under Article 227 of

the Constitution of India assailing the legality and validity of the order

dated 30.12.2020 passed by the learned Commercial Court-cum-XIII

Additional District and Sessions Judge, Ranga Reddy District at

L.B.Nagar.

4. Impugned order dated 30.12.2020 reads as under:-

"Heard the learned counsel for the petitioner. Not satisfied about the applicability of Article 62 of Limitation Act as this is not for enforcing payment of money secured by mortgage or otherwise charged upon immovable property. Hence return the suit for not being filed within time".

5. We find from the documents on record that learned court below

had put up six queries to the plaintiff (petitioner herein) which we

reproduce hereunder:

i. As per the legal notice dt.22.04.2015 and office copy of rejoinder notice dated 10.07.2015 vide documents Nos.13 & 15, how this suit is within time.

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ii. As per document No.18 Joint Development Agreement-cum-

GPA dated 20.04.2018, how the plaintiff is entitled to seek reliefs against D6 to D11, as prayed in the plaint?

iii. Explain how the plaintiff is entitled to seek reliefs against D6 to D11, as they were not made parties in Development agreement dated 25.12.2008 (Doc.No.3).

iv. Explain how the plaintiff is entitled to seek distinct reliefs.

v. Separate Court Fee for permanent injunction is not paid.

vi. The plaint shall contain a declaration on oath from the plaintiff in the form of 'Statement of Truth' as set out in the Appendix of Act and as prescribed under Order VI Rule 15A of CPC.

6. On 17.12.2020, plaintiff (petitioner) made detailed submissions

on the six queries put up by the court. Submissions of the plaintiff

(petitioner) read as under:-

Objection No.1

Explanation - As per Development Agreement dated 25.12.2008, time was not the essence of contract. Further there is no clause for cancellation of Development Agreement in the said Agreement. Since it is cancelled by Notice dated 22.04.2015 which itself void, there is no need to ask Declaration if the act is itself void. Therefore there is continuous cause of action as far as the enforcement of Development Agreement is concerned. Further at the time of execution of Development Agreement dated 25.12.2008, Rs.1 crore was paid and at the time of execution of Memorandum of Understanding Rs.4 crores were paid as Security Deposit. As per Madras High Court Judgment in Second Appeal No.426/2015 delivered by Hon'ble Justice K.Ravichandrabaabu between P.Muthuswamy v. K.Arumugam and others, Hon'ble Court has observed that even if relief of Specific Performance is out of limitation then also recovery of money paid towards earnest amount can be recovered within 12 years as per Article 62 of Limitation Act, 1963 in suit for specific performance. Now even if, for the sake of consideration it is held that relief of Specific Performance is out of limitation, then as per Article 62 of Limitation Act, 1963, recovery of ::3::

Security Deposit amount can be made within 12 years in suit for specific performance. Therefore suit is very well within limitation.

Since Defendant No.6 to 11 have taken over the suit property for development before filing of suit, therefore it is necessary party to suit or else suit will be dismissed for non-joinder of necessary party. For relief of Specific Performance, it is necessary to join Defendant No.6 to 11 as necessary party without which decree would not be enforceable. Further this is not suit simplicitor for Recovery but for Specific Performance, so Plaintiff is entitled to seek relief against Defendant No.6 to 11. At the most Court will come to conclusion that Defendant No.6 to 11 are misjoinder as party to suit. But without Defendant No.6 to 11 suit is not maintainable.

Objection No.4:

Since plaintiff is asking for Specific Performance along with Recovery of amount paid as per Section 20 of Specific Relief Act, 1963, plaintiff is entitled to ask distinct relief of Recovery. Further since Defendant No.6 to 11 has stepped into suit property, without their document be declared null and void as per Section 34 of Specific Relief Act, 1963, decree of specific performance cannot be enforced. Or else plaintiffs suit shall suffer from inadequate prayers. Granting prayers or not is the discretion of court.

Objection No.5:

For the relief of injunction the plaintiff values the suit for Rs.10,000/- and a fixed court fee of Rs.786/- is paid u/s 26C.

Objection No.6:

The statement of facts cum declaration is filed. Call on bench for hearing.

7. Notwithstanding the above, the plaint was returned by the

learned court below by holding that it was not satisfied about

applicability of Article 62 of the Limitation Act, 1963.

8. Learned counsel for the petitioner submits that the main prayer

made in the plaint is for specific performance of the development ::4::

agreement dated 25.12.2008 and an alternative prayer has been made

for refund of money for failure to comply with the development

agreement. Learned counsel for the petitioner has referred to Article

62 of the Limitation Act, 1963, as per which the limitation is 12 years

for filing of suit to enforce payment of money secured by a mortgage or

otherwise charged upon immovable property and the limitation begins

when the money sued for becomes due. He has also referred to a

decision of the Madras High Court in P.MUTHUSWAMY V.

K.ARUMUGAM and others1.

9. Submissions made have been considered.

10. Paragraph 25 of P.Muthuswamy (supra) on which reliance has

been placed is extracted hereunder:

"Perusal of Article 54 and 62 of the Limitation Act would certainly indicate that both are not acting on the same field and on the other hand, they are to be applied only in respect of the suit for which respective Article is meant for. Needless to say that as per Article 54 of the Limitation Act, a suit for specific performance of a contract has to be filed within a period of three years from the date fixed for the performance or if no such date is fixed, from the date of the refusal of such performance. At the same time, it is to be noted that the plaintiff is not precluded from seeking an alternative prayer for refund of the advance amount. Such alternative prayer, certainly, is not a consequential prayer to the other relief of specific performance and on the other hand, such alternative prayer itself will have the character of the main relief, however, alternatively sought for. If such alternative prayer for refund of advance amount is also sought for in a suit for specific performance, certainly, the period of limitation to be considered in respect of that relief is concerned, Article 62 of the Limitation

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Act alone has to be applied and not the limitation period fixed for specific performance. Article 62 of the Limitation Act grants 12 years time for enforcing payment of money secured by a mortgage or otherwise charged upon immovable property".

11. Upon hearing learned counsel for the petitioner and on going

through the materials on record, we are of the view that the plaint

submitted by the petitioner may require to be proceeded with by the

learned court below, subject, of course, to the defence taken up by

defendants in their written statement. It is not a case where the plaint is

to be returned at the threshold. Needless to say, limitation is a mixed

question of fact and law and the question whether Article 62 of the

Limitation Act, 1963 applies to the facts and circumstances of the case

would depend upon the pleadings and evidence tendered. Order dated

30.12.2020 appears to us to be premature.

12. Consequently, we set aside the impugned order dated 30.12.2020

and direct the learned court below to take on record the plaint of the