Calcutta High Court
State Bank Of India Staff Association vs Popal And Kotech Property on 31 March, 2000
Equivalent citations: (2001)2CALLT34(HC)
ORDER
1. This appeal under Clause 15 of the Letters Patent is directed against a Judgment dated 27th January 2000 passed by the learned single Judge of this Court in Civil Suit No. 376 of 1999.
2. By the aforesaid Judgment the learned single Judge has refused the prayer of the appellant/defendant for rejection of the plaint in terms of Order VII Rule 11 of the Code of Civil Procedure. The contention of the appellant that the plaint be rejected because the suit is barred by limitation has been negatived by the learned single Judge in the judgment under appeal by holding that the limitation as an issue is not relevant for rejecting a plaint under Order VII Rule 11 of the Code of Civil Procedure. The following observation forming the basis of refusal to reject the plaint on the aforesaid ground is apposite; we quote as under :-
"With regard to the point raised by Mr. Chatterjee that the suit is barred by law under Order 7 Rule 11 of the Code of Civil Procedure, in my view, the phrase "suit is barred" means barred by the Statutes. The prescribed period stipulated in the Limitation Act, in my view, is not bar to filing suit. Remedy may be barred. Therefore, whether the relief or remedy claimed or claimed in the suit is barred or not can be decided at the time of the trial of the suit as a preliminary issue."
3. The brief facts regarding the filing of the appeal may be stated as herein below.
4. The respondent Popal & Kotech Property, a Firm registered under the Indian Partnership Act, 1932 and the appellant State Bank of India Staff Association entered into an agreement on 19th January, 1983 whereby the respondent agreed to build and develop the property owned by the appellant. A detailed agreement was, accordingly, executed on 19th January 1983 between the parties which, inter alia, provided for regulating the relationship between the Owner and the Builder/Promoter. Para 13 of the Agreement, which is at the core of the subject matter of the present appeal, stipulated that after the construction of the entire building is completed and two Chartered Engineers Issue the Final Completion Certificate, the respondent shall by a notice to the appellant call upon the appellant to execute and register a lease in favour of the respondent or its nominee whereby a lease of the second floor, third floor, fourth floor, fifth floor and the roof (collectively described as the demised premises) was to be granted. This clause Contained detailed stipulations regarding the grant of the said lease. We reproduce Clause 13 of the aforesaid Agreement which reads thus:-
"Clause 13 : That after completion of the construction of the entire building in accordance with the final sanctioned/renewed plan in respect thereof and after obtaining the final completion certificates from the said two Chartered Engineers relating to the construction of the building the Builders shall by a notice to the Association call upon the Association (as Lesser) to execute and register a Deed of Lease in favour of the Builders or their nominee or nominees (as Lessee) granting a lease of the said Second floor, third floor, Fourth floor, fifth floor and the roof thereon (hereinafter collectively referred to as the demised premises' of the building at the costs of and incidental charges to the execution and registration of the said Deed of Lease to be provided by the Lessee for a term of 51 years from the date of execution of such Deed of Lease taking into account the position and circumstances existing concerning the demises premises, at the time of execution of the said deed of Lease and upon into inter alia the terms, conditions and covenants hereinafter mentioned in Clause 16 hereof, such Lease and the terms referred to in clause (if hereof forming inter alia the basic consideration of the arrangement between the Association and Builders touching and concerning the construction of the said building on the said land of the Association in terms of this Agreement provided always that if for any reason the said Deed of Lease required to be executed and registered is not or cannot be so made within a period of 90 days from the date of the receipt of the such notice from the Builders then and in that event the builders shall have the full right and power to deal with the demises premises or any part thereof by letting but the same or any part there of in such manner and on such terms and conditions as the Builders might think in their absolute discretion to be fit, convenient and to appropriate the rents, issues and profits thereof exclusively to their own use benefits and enjoyment."
5. It is the admitted case of the respondent that the entire building was completed in the year 1984. Even though the plaint does not specifically indicate the exact date of the completion of the entire building, in para 5 of the plaint it is stated that on 31st January 1985 the respondent handed over the possession of the basement, ground floor and the first floor to the appellant and retained the possession of the dismissed premises with itself. in para 6 of the plaint it is stated that the respondent wrote a letter on 4th November 1984 in terms of Clause 13 (supra) calling upon the appellant to execute the Lease Deed in favour of the respondent or its nominee.
6. The admitted case of the appellant is that no Lease Deed was ever executed in respect of the demises premises. The suit was filed in the year 1999 and the following reliefs were claimed in the suit.
"(a) Declaration that the plaintiff alone is entitled to let out the ground floor, 2nd, 3rd, 4th, 5th floor and the roof of the said premises shortly referred to have as the 'Builders Block' and realise all rents, issues and profits therefrom without any interference by the defendant;
(b) Perpetual injunction restraining the defendant from executing any lease or other documents in favour of persons in occupation of any portion of the builders block referred to in prayer (a) or in relation to any part or portion of the said block in consideration of any sum or from realising any rent issues or profit therefrom incumbent or otherwise deal with and exercise any control or dominance over the same.
(c) Decree for Rs. 18,84,500/- (Rupees Eighteen lacs Eighty-four Thousand Five hundred) only as pleaded in paragraphs 18 and 25 of this, plaint;
(d) Alternatively, an account of what is due and payable to the plaintiff by the defendant in respect of all dealings and transactions by the defendant with the person or persons in occupation of the builders block of the said premises and a decree for such sum as may be found due and payable after taking such account;
(e) All further proper accounts enquiries and directions;
(f) Decree for specific performance of the Development Agreement dated 19th January, 1983 be granted against the defendant in terms of clause 16 of the said Agreement requiring the defendant to execute Deed of Lease for a period of 51 years on terms and conditions contained in the said Clause;
(g) Mandatory injunction directing the defendant to execute register Deed of Lease, in favour of the plaintiff and/or its nominee or nominees in terms of Clause 18 of the Development Agreement dated 19th January, 1983 in respect of the Builders Block, being the 2nd, 3rd, 4th, 5th floor and roof as referred to above;
(h) In the event of the defendant failing to execute, register and deliver Deed of Lease, the Registrar, Original Side of this Hon'ble Court be directed to settle execute and register necessary Deed of Lease in respect of the Builders Block as referred to above for and on behalf of the defendant;
(i) Decree for Rs. 80 lacs as damages as mentioned in paragraph 12 above in addition to a decree for specific performance;
(j) Alternatively, an enquiry, into loss and damage suffered by the plaintiff and a decree for such sum as may be found due and payable upon such enquiry;
(k) In the event decree for specific performance as prayed for cannot be granted, a decree for damages in terms of specific performance be granted against the defendant at such rate or rates and on such basis as this Hon'ble Court may deem fit and proper;
(l) Costs;
(m) Further or other reliefs;"
7. The appellant filed an application under Order 7 Rule 11 of the Civil Procedure Code praying for rejection of the plaint on the ground that the suit, as was apparent from the statement contained in the plaint itself, was barred by limitation in the sense that the suit was filed beyond the limitation period prescribed under the Limitation Act. The learned trial Judge,, as noticed at the outset, refused the said prayer of the appellant and dismissed the application under Order 7 Rule 11 by holding that the expression 'barred by any law' as occurring therein did not include the operation of the Limitation Act.
8. At the hearing of this appeal, at the very outset, a preliminary objection was raised about the maintainability of this appeal under Clause 15 of the Letters Patent on the ground that the order passed by the learned single Judge was not a "Judgment" within the meaning of clause 15 of the Letters Patent.
9. Mr. Sarkar, learned Advocate appearing for the respondent referred to following to judgments in support of his aforesaid preliminary objection regarding the non-maintainability of this appeal. (1) Shipping Corporation of India Limited v. West Bengal Small Industries Corporation and Ors. reported in 95 CWN 1172 (2) Shah Baboolal Khimji v. Javaben .
10. We have considered the aforesaid preliminary objection of Mr. Sarkar and we have also gone through the aforesaid judgments cited by him. Whereas the broad proposition of law regarding the non-maintainability of an appeal against an order merely refusing to reject the plaint under Order 7 Rule 11 of the Civil Procedure Code cannot be disputed and to that extent, on an abstract question of law Mr. Sarkar appears to be right, in this particular case when we look to the order passed by the learned single Judge we find that he has adjudicated upon a particular right of the defendant by holding that the suit is not barred because the expression 'barred by any law' as occurring in Order 7 Rule 11 of the Civil Procedure Code did not include the operation of the Limitation Act. In other words, a right of the appellant defendant with respect to the maintainability of the suit, on an important question that the suit was barred by law of limitation and was thus liable to be dismissed on this ground has in fact been adjudicated upon by the learned single Judge in the order whereby he has refused to reject the plaint. The order refusing to reject the plaint per se therefore, may not be appealable, between an order like the present one where the learned trial Judge has returned a definite finding and has decided the issue that the provision of law as contained in Clause (d) of Rule 11 of Order 7 of the CPC cannot be made applicable and that this provision cannot be invoked to ask for the rejection of the plaint on the ground that the suit is barred by limitation is, in our opinion, a "judgment" within the meaning and scope of Clause 15 of the Letters Patent and is thus appealable. Since the order under appeal has the potential of effecting the aforesaid valuable right of the appellant/defendant, it cannot be said that it does not amount to a "judgment" within the meaning and scope of Clause 15 of the Letters Patent.
11. Having thus held that the order under Appeal would amount to a Judgment within the meaning of Clause 15 of the Letters Patent, let us now proceed to consider as to whether Clause (d) of Rule 11 of Order 7 CPC relates to the applicability of the Law of Limitation when it talks about the suit being barred under any Law. Undoubtedly there is nothing in the language employed in Clause (d) (supra) which indicates the intention of the legislature to the contrary. When Clause (d) talks about the suit being barred under any Law, the expression 'Law' undoubtedly will Include the law of Limitation also. If therefore a defendant brings to the notice of the Court that a particular suit, on a mere perusal of the plaint is barred by Law of Limitation because it has been filed beyond the period of limitation prescribed therefore in Limitation Act, he is entitled to maintain an application in terms of Order 7 Rule 11 (d) CPC and if that happens it is the duty of the Court to take note of that application and on considering the aspect as to whether the suit is filed within the limitation period or not decide the application, based on the limitation aspect as has been projected in the application and return a finding, allowing or not allowing the application, as the case may be. In our opinion, the learned single Judge in the Judgment under Appeal has erred in taking a different view.
13. After we had indicated to Mr. Sarkar that we shall be inclined to disallow his contention regarding the non-maintainability of the appeal, Mr. Sarkar proposed that rather than sending the matter back to the learned single Judge, we should ourselves in this appeal decide the question of limitation and adjudicate upon the issue whether the suit is in fact barred by limitation or not.
14. The aforesaid suggestion of Mr. Sarkar was acceptable by the learned Advocate appearing for the appellant and based upon the aforesaid agreement of the parties, we proceeded to hear the parties on the question whether in fact the suit was barred by limitation or not.
15. We have extracted in the earlier part of this judgment the reliefs claimed by the respondent in the plaint. When one looks at all the reliefs, mainly, primarily, additionally or alternatively, one finds that the main trust of the respondent's case resolves upon the specific performance of the agreement dated 19th January, 1983. It is the admitted case of the respondent-plaintiff that the building in question was completed in the year 1984. It is the admitted case of the respondent also that on 4th November, 1984 the respondent for the first time sent a communication to the appellant in terms of clause 13 (supra) for execution of the appropriate lease deed with respect to the demised premises. Clause 13 undoubtedly stipulated that the aforesaid demand to the respondent was to be made by the appellant and that if within a period of 90 days from the date of receipt of the notice containing such demand the appellant did not act upon such demand, the respondent had the option, rather a right to deal with the demised premises or any part thereof by letting out the same in such a manner or on such terms and conditions as the respondent might think appropriate in its absolute discretion. Article 54 of the Schedule to the Limitation Act provides for a period of three years for Instituting a suit for specific performance of the contract and this period starts running from the date fixed for the performance of the contract or if no such date is fixed, when the plaintiff has notice that the performance is refused. A bare reading of Clause 13 (supra) suggests that 90 days is the period prescribed in the contract for the performance as far as the appellant was concerned and looking to the averments contained in para 6 of the plaint this period of 90 days would commence from the date of the notice dated 4th November, 1984 was received by the appellant. 90 days, therefore, would expire from the date of receipt of this notice. That, according to us, should have happened sometime in the first quarter of the year 1985, even if we presume that some days might have been spent in the receipt of the notice sent on 4th November, 1984. Treating the period of limitation thus to start from first quarter of the year 1985, three years would expire in the first quarter of the year 1988. The suit has been filed as noticed above in the year 1999, so much on the limitation question regarding the relief for specific performance.
16. As we have noticed all other reliefs primarily, mainly, additionally or alternatively revolve around the question on dispute of execution of the lease deed by the appellant in favour of the respondent. Everything depended upon the execution of such lease deed. Undoubtedly, the plaintiff-respondent has based all its aforesaid claims around this nucleus, this focal point of the execution of the lease deed. That apart, whatever the nature of basis of the plaintiffs claims may be, three years period of limitation in respect of each individual claim is the maximum period under the Schedule of Limitation Act. Whether we apply Article 54 or Articles 55, 57 or 58 or that matter the residuary Article 113, limitation period in all cases would be three years and, from what we have said herein above we have absolutely no hesitation in holding that the starting point of limitation in respect of all claims would be either 4th November, 1984 or the expiry of 90 days therefrom, which we have indicated, takes us to the first quarter of the year 1985. That being the case, therefore, the suit of the respondent-plaintiff was barred by limitation on all Counts and the appellant was thus entitled to an order of rejection of the plaint in terms of Order 7 Rule 11 (d) of the CPC We feel that the learned single Judge erred in law in refusing to reject the plaint on that ground.
17. Based on the aforesaid observations, therefore, we have no hesitation in setting aside the Judgment of the learned single Judge. Accordingly, the judgment of the learned single Judge is set aside. The appeal is allowed. The plaint in terms of Order 7 Rule 11, Clause(d) of the CPC is rejected because the suit is held to be barred by limitation. All interim orders passed in the suit stand vacated immediately and forthwith.
There will be no order as to costs.
After this order was pronounced, Mr. Sarkar, learned Advocate appearing for the respondent made an oral prayer for staying the operation of this judgment. On consideration, we decline the prayer.
All parties are to act on a signed xerox copy of this dictated order on the usual undertaking.