Gujarat High Court
Himmatbhai Madhavbhai Rohir vs Gopalbhai Himmatbhai Prajapati on 23 September, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 659 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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HIMMATBHAI MADHAVBHAI ROHIR
Versus
GOPALBHAI HIMMATBHAI PRAJAPATI
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Appearance:
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1
MR R.K.MANSURI(3205) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 23/09/2022
CAV JUDGMENT
(1) By way of the present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (the CPC) the applicant- original defendant seeks to challenge the order dated 16.09.2017 passed by 19th (Ad-hoc) Additional Senior Civil Judge, Vadodara, below application Exh.33 moved in Regular Civil Suit No.1588 of 2015. A further prayer is made to Page 1 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 allow the application No.33 moved by the applicant in the aforesaid suit.
(2) The brief facts of the case, as stated in the memo of the revision application are as under:
(3) The respondent-original plaintiff has instituted Special Civil Suit No.564 of 2012 (new number - Regular Civil Suit No.1588 of 2015) before Civil Judge (S.D), Vadodara, against the present applicant-original defendant. It is the case of the respondent-
original plaintiff that there is an agreement to sell in his favour and, therefore, the suit is instituted on the basis of the said agreement to sell. It is submitted that along with the suit, he has also filed an injunction application, which was granted vide order dated 31.01.2014. It is submitted that the said order was confirmed by the lower appellate court in appeal.
3.1) The applicant-original defendant gave an application below Exh.33 under Order VII Rule 11 of the CPC for rejection of the aforesaid plaint on the ground that the plaint does not disclose any cause of action and there are no averments, as mandated under section 16C of Page 2 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 the Specific Relief Act, 1963 with regard to the readiness and willingness on the part of the plaintiff. It is submitted that though evidence has started in the suit, the application for rejection of the plaintiff can be filed at any stage.
3.2) By the impugned order dated 16.09.2017, 19th (Ad-hoc) Additional Senior Civil Judge, Vadodara, rejected the application below Exh.33 moved in Regular Civil Suit No.1588 of 2015 for rejection of plaint of the applicant. Hence, the applicant is constrained to prefer the present revision application.
(4) Learned advocate Mr.Majmudar, while placing reliance on paragraph no.2 of the agreement to sell, has submitted that the same will remain effective till 20.06.2008, as per the condition no.2 of the agreement hence, the suit for specific performance is not maintainable. It is submitted by him that the court below should have allowed the application below Exh.33, which was filed under Order VII Rule 11(d) of the CPC in view of the said condition.
Page 3 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 4.1) Learned advocate Mr.Majmudar has submitted that no cause of action is pleaded in the plaint and hence, the suit for specific performance is not maintainable. It is thus submitted that even as per the contents of the plaint, the full amount of consideration was not received before 20.06.2008, as specified in the agreement to sell and the amount, even if it is assumed that was paid thereafter, the validity of the agreement to sell will expire on that day, hence the suit for specific performance is barred by limitation. It is submitted that the suit has been filed beyond the period of limitation of 3 years as per Article 54 of the Limitation Act and hence, the plaint is required to be rejected. He has submitted that merely because the defendant has not filed any suit seeking cancellation of the agreement to sell and the possession is given, the same will not in any manner affect the operation of the provisions of Order VII Rule 11(d) of the CPC. While placing reliance on section 16(c) of the Specific Relief Act, 1963, it is submitted that the suit will also be barred under the said provision since the plaintiff has not peformed essential terms of contract. Thus, he has submitted that the application may be allowed.
Page 4 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 4.2) Learned advocate Mr.Majmudar, in support of his submissions, has placed reliance on the judgments of the Supreme Court in the case of Raghwendra Sharan Singh vs. Ram Prasanna Singh (dead) by LRs, 2019 SCC OnLine SC 372, Fatehji & Company vs. L.M.Nagpal, (2015) 8 S.C.C. 390 and The Church of Christ Charitable Trust & Educational Charitable Society vs. M/s. Ponniamman Educational Trust, 2012 (2) G.L.H.
713. He has also placed reliance on Section 16 of the Specific Relief Act.
(5) Per contra, learned advocate Mr.Mansuri has submitted that condition no.2 of the agreement to sell cannot be read in isolation and the same has to be read with condition no.4. He has submitted that as per the agreement to sell, which was entered on 11.04.2008, the concerned property was agreed to be sold by consideration of Rs.3,11,000/- and, the plaintiff had paid an amount of Rs.1,00,000/- in advance by Cheque No.574169 dated 15.05.2008. He has submitted that, thereafter, he had paid an amount of Rs.65,000/- on 16.06.2008 and Rs.40,000/- on 01.07.2008 and accordingly, he has paid an amount of Rs.3,11,000/- to the defendant and after Page 5 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 obtaining such amount, the defendant had handed over the possession of the suit premises on 01.07.2008 and since then he is in possession of the said property. It is submitted by him that there was an old mortgage on the said property since 2003 to the tune of Rs.1,50,000/- as a loan was obtained by the defendant from the Gujarat Vikas Nigam Ltd. It is submitted that a legal notice was issued by the plaintiff on 07.01.2010 to execute the sale deed, however, since the same was not done, the plaintiff was constrained to institute a suit on 01.09.2012. It is thus submitted that it cannot be said that the suit is barred by limitation. It is submitted by the learned advocate Mr.Mansuri that in the reply to the show cause notice, such facts are admitted by the defendant and in view of the specific condition no.4 incorporated in the agreement to sell, it cannot be said that the suit is barred by limitation.
5.1) Learned advocate Mr.Mansuri, in support of his submissions, has placed reliance on the judgment of the Division Bench of this Court in the case of Ranchhodbhai Lilabhai Desai vs. Prakash Devshibhai, AIR 2018 C.C. 944 and in Page 6 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 the case of Urvashiben And Another vs. Krishnakant Manuprasad Trivedi, (2019) 13 S.C.C. 372. Thus, he has submitted that since the defendant, after having obtained the sale consideration, has not yet executed the sale deed despite receipt of the notice on 07.01.2010, the suit was instituted within a period of limitation of 3 years. Thus, it is submitted that the impugned order does not require any interference, as all the issues raised therein, including the fact about the money given by the defendant, require trial.
(6) I have heard the learned advocates appearing for the respective parties.
(7) The genesis of the civil suit as well as the present revision application lies in condition nos.1, 2, 3 and 4 of the agreement to sell dated 11.04.2008, which are translated as under:-
"(1) The sale consideration of the said property is decided by consent of the parties at Rs.3,11,000/- for which either of the parties shall not raise any dispute in future.
Out of the said sale consideration and amount of Rs.1,05,000/- (One lac five thousand) is paid in cash by the vendee, and the said amount shall be considered as earnest money.
Page 7 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 (2) The agreement to sell will be valid till 20.6.2008, and if amount is not paid, the earnest money shall be forfeited and no legal proceedings shall be taken which is binding to both the parties.
(3) Within the aforesaid time limit, the vendee shall pay the rest of the amount of sale consideration, and as and when such amount is paid, the vendor shall execute the sale deed;
(4) However, in case the vendee is ready to pay the remaining sale consideration of Rs. 2,06,000/- (Rupees Two Lakhs Six Thousand Only) as per the agreement to sell and if the vendor does not execute the sale deed, the vendee shall be entitled to get initate legal proceedings for executing a registered sale deed and the vendor shall be liable for all the costs thereof."
(8) The application below Exh.33 filed by the applicant-defendant under Order VII Rule 11(d) of the CPC has been rejected by 19th (Ad-hoc) Additional Senior Civil Judge, Vadodara, by the impugned order dated 16.09.2017, after recording the submissions advanced by the respective parties. The plaintiff has instituted the suit for specific performance of the agreement to sell. The trial court has specifically recorded the assertions made by the plaintiff to the effect that he has paid total amount of Rs.3,11,000/- to the defendant, the details of which are mentioned in the plaint. After receipt of the said Page 8 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 amount, the possession of the suit premises was also handed over to him. The condition No.2 of the agreement to sell specifies that the validity of the agreement to sell is dated 20.06.2008 and it is stated that if the amount, as agreed upon i.e. the amount of Rs.3,11,000/-, is not paid, then the said amount will be forfeited and no legal proceedings can be initiated in this regard. Whereas, the condition No.4 specifically narrates that in case, the plaintiff / vendee is ready and willing to pay the remaining amount of sale consideration of Rs.2,06,000/- and if the vendor does not execute the sale deed, the vendee shall be entitled to initiate legal proceedings for execution of sale deed. It is the specific case of the plaintiff that he has already paid the entire amount of sale consideration, and after obtaining the entire amount the plaintiff was put in possession. Thus, the condition no.2 cannot be read in islolation, but the relevant clause would be clause.4 of the agreement to sale and both the parties are chained by the conditions envisaged in the said clause.
(9) It is asserted by the plaintiff that he had paid an amount of Rs.1,00,000/- in advance by Page 9 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 Cheque No.574169 dated 15.05.2008. He has submitted that, thereafter, he had paid an amount of Rs.65,000/- on 16.06.2008 and Rs.40,000/- on 01.07.2008 and accordingly, he had paid an amount of Rs.3,11,000/- i.e. the entire amount of Rs.3,11,000/- was paid by him to the defendant by 01.07.2008 and accordingly, the defendant had handed over the possession of the suit premises to the plaintiff on 01.07.2008. The plaintiff has asserted that despite the payment of the aforesaid amount and having got the possession, the defendant has refused to execute the sale deed, which constrained him to institute the suit, despite calling upon him vide notice issued on 07.01.2010 to execute the sale deed. The defendant refused to execute the sale deed vide his reply dated 20.01.2010. Thereafter, the plaintiff instituted the suit on 01.09.2012.
(10) In the considered opinion of this Court, the suit will not be barred under the provisions of Order VII Rule 11(d) of the CPC as the plaintiff has sent a legal notice on 07.01.2010 to execute the sale deed and since the defendant did not do the same, he has instituted the suit in the year 2012 i.e. on Page 10 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 01.09.2012, which is within the period of 3 years, as per the provisions of Article 54 of the Limitation Act.
(11) I may with profit refer to the decision of the Apex Court in case of Urvashiben (supra), wherein the Apex Court, while dealing with the provision of Order VII Rule 11 of the CPC and Article 54 of the Limitation Act, has held thus:
"11 It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance. The said Article reads as under :
Description of suit Period of Time from which limitation period begins to run * * *
54. For Specific 3 years The date fixed performance of a for the contract performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.Page 11 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022
C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 12 From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the Sale Deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under O.VII R.11(d) of CPC."
(12) The Apex Court has held that "it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, Page 12 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 for the purpose of adjudicating such application." In the present case, the plaintiff has specifically pleaded in the plaint that the defendant has refused to perform the execution of sale deed even after payment of entire amount of sale consideration. The bare reading of the plaint does not in any manner suggest that the plaint is barred by limitation. All the issues raised in the plaint require adjudication through a full fledged trial.
(13) Reliance placed by the applicant-defendant on the judgemnt of the Apex Court cannot come to his rescue. In the case of Raghwendra Sharan Singh (supra), the Apex Court was dealing with the fact of execution of registered gift deed and the plaintiff and his brother during the period of 22 years did not claim that the gift deed was showy. Similarly, the case of The Church of Christ Charitable Trust (supra) suggests that the plaint did not disclose the cause of action and no particulars showing as to the documents which were referred to as "agreement holder" were produced, though it was alleged that the 2nd defendant, as agreement holder of the 1st defendant and also as the registered power of attorney holder of Page 13 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 the 1st defendant, executed the sale deed. Reliance placed on the decision of the Apex Court in the case of Fatehji (supra) is also misconceived since the same will not apply to the facts of the present case and the terms of the conditions of the agreement to sell.
(14) The Division bench of this Court in the case of Ranchhodbhai Lilabhai Desai (supra), in almost similar set of facts, has held thus:
"11 The prayer of the defendants for rejection of a plaint under order 7 rule 11 of Civil Procedure Code shall have to be judged on the basis of above materials and other relevant aspects emerging from the plaint and the accompanying documents. The validity of the defense or other opposition to the suit by the defendants would not be germane at this stage. In plain terms, the case of the plaintiff is at the defendants no.1 and 2 according to sale the suit land for specified sale consideration and later on failed to execute the sale deed, though the plaintiff was always ready and willing to perform his part of obligation. It can therefore not be stated that the suit did not disclose any cause of action. Whether the plaintiff ultimately succeeds in establishing all necessary and relevant facts to earn a decree of specific performance is a different matter altogether. The same would depend on the evidence that both sides may bring on record during the trial. However, at this stage, it cannot be stated that the plaint does not disclose any cause of action and therefore, the plaint is required to be rejected.
12 On the question of limitation, we may recall, the writing dated 10.11.2004 required the plaintiff to make payment of 25% of the sale consideration within two months and the full sale consideration within 9 months from the date of the writing. According to the plaintiff, 25% payment was already made over. There is no time specified for the sellers to execute the sale deed. Entry 54 of the schedule to the Limitation Act prescribes the period of three years for filing a suit Page 14 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 for specific performance of a contract and further provides that the time from which such period would begin run is the date fixed for the performance or if no such date is fixed, from the date plaintiff had notice that the performance is refused. If we therefore proceed on the basis that there was no time fixed for the defendants to perform the contract, the suit would fall in the second part the starting point of the limitation period viz. when the plaintiff has noticed that performance is reduced. According to the plaintiff, he became aware about the refusal of the defendants to perform the contract when the defendants published notice in the local newspaper on 20.05.2016 seeking title clearance of the land in question, to which, the plaintiff objected under a letter dated 23.05.2016. The suit which was filed shortly thereafter, could not have been rejected as barred by limitation."
(15) In the present case the facts of the plaint disclose that the plaintiff has paid an amount of Rs.1,65,000/-(i.e. Rs.1,00,000/- on 15.05.2008 through cheque and Rs.65,000/- on 16.06.2008 by cash) before 20.06.2008. There is no time limit specified to execute the sale deed. Thus, as per the observation of the Division Bench, Entry-54 of the Schedule to the Limitation Act prescribes the period of three years for filing a suit for specific performance of a contract and further provides that the time, from which such period would begin to run, is the date fixed for the performance or if no such date is fixed, from the date the plaintiff had notice that the performance is refused. Thus, the suit to perform the contract, would fall in the second part the starting point of the limitation Page 15 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022 C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 period viz. when the plaintiff has noticed that the performance was refused.
(16) With regard to the bar of section 16(c) of the Specific Relief Act, 1963, the same reads as under:
"SECTION 16 : Personal bars to relief:
(c) "who fails to prove" that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation: For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff 8 "must prove" performance of, or readiness and willingness to perform, the contract according to its true construction."
The expression used in the subsection (c) to section 16 is "who fails to prove" that he has performed or has always been ready and willing to perform the essential terms of the contract. Thus, the provision of section 16(c) of the Specific Relief Act can only be attracted after thorough examination of bundle of facts in the suit proceedings, and the plaint cannot be rejected by resorting to provisions of Order VII Rule 11 of the CPC.
Page 16 of 17 Downloaded on : Fri Sep 23 21:47:33 IST 2022C/CRA/659/2018 CAV JUDGMENT DATED: 23/09/2022 (17) The Revision Application fails legal scrutiny.
Rule discharged.
Sd/- .
(A. S. SUPEHIA, J)
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Bhavesh-[PPS]
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