Delhi District Court
Mr. Kewal Kapoor (Deceased vs Mr. Gurbux Lal (Deceased on 24 February, 2018
IN THE COURT OF SH. M. P. SINGH: ADDITIONAL DISTRICT
JUDGE-03: CENTRAL: TIS HAZARI DELHI
RCA No. 44/16
New RCA No. 60928/16
1. Mr. Kewal Kapoor (deceased, represented by LRs no. 1A to 1C)
1A. Rishi Kapoor, s/o Late Kewal Kapoor,
1B. Vikas Kapoor, s/o Late Kewal Kapoor,
1C. Vimal Kapoor, s/o Late Kewal Kapoor,
2. Mrs. Renu Kapoor,
W/o Late Lalit Kapoor
3. Mr. Dinesh Kapoor,
S/o Late Lalit Kapoor
All residents of
G-134, First Floor,
C. R. Park, New Delhi. ......Appellants
Versus
1. Mr. Gurbux Lal (deceased, represented by LRs no. 1A to 1C)
1A. Surender Kumar, s/o Late Gurbax Lal,
R/o B-13, Khan Market, New Delhi
1B. Meena Kumari, d/o Late Gurbax Lal,
R/o B-13, Khan Market, New Delhi
1C. Urmila Rani, d/o Late Gurbax Lal,
R/o B-13, Khan Market, New Delhi
2. Mr. K.G. Sharma,
S/o Late Dharam Chand
R/o H. No. 1041, Sector - 14,
Sonepat, Haryana ......Respondents
Appeal filed on - 11.12.2013
Arguments heard on - 03.02.2018
Judgment pronounced on - 24.02.2018
JUDGMENT
1. This is an appeal against order and decree dt. 30.09.2013 of Ld. Civil Judge, Central District, Tis Hazari Courts. Plaintiffs are in appeal RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 1 of 8 before this Court. For convenience, parties shall be referred to as per their ranks in the suit.
2. Ld. Trial Court vide the impugned order and decree on a preliminary issue vis-à-vis limitation held against the plaintiffs. There were two other preliminary issues as well vis-à-vis Order II Rule 2, CPC and the doctrine of estoppel. On these other two preliminary issues, Ld. Trial Court returned no findings.
3. Facts, relevant for the present purpose, are as follows: Late Kishan Chand Kapoor and Gurbax Lal were partners in the business of M/s Mehra Clothiers in shop no. 8-B, Khan Market, Delhi (for short 'suit shop') vide a partnership deed dt. 24.07.1963. They executed an agreement styled as 'Deed of Agreement" dt. 24.07.1963 qua the suit shop. As per written text of this agreement, Gurbax Lal had purchased rights, title and interest in the suit shop from one Madan Lal, albeit permission for sale deed in Madan Lal's name was yet to be obtained from Government of India. Further, as per this agreement Gurbax Lal agreed to transfer his ½ share in the suit shop for consideration of Rs. 7,000/-, out of which Rs. 1,000/- was paid as earnest money and remaining amount of Rs. 6,000/- was agreed to be paid 'within 13 months from the date hereof against receipt'. The relevant clause of this agreement reads as follows:
"Whereas party No.1 (Gurbax Lal) by an agreement entered into between himself and Shri Madan Lal purchased all rights, title and interest held by Shri Madan Lal in shop no. 8-B, Khan Market, New Delhi and whereas the Sale Deed/Conveyance Deed and Sales Permission is yet to be obtain in the name of Sh. Madan Lal in respect of the aforesaid property from the Ministry of Rehabilitation, Govt. of India, New Delhi although full payment by adjustment or claims and other wise have been made by the said Shri Madan Lal to the Govt. and whereas now party no. 1 has agreed with party no. 2 (Shri Kishan Chand Kapoor) that party no. 1 shall transfer his ½ share of the said shop No. 8-B, Khan Market, New Delhi for a consideration of Rs. 7,000/- (Rupees Seven Thousand only) relating to half price of the said shop and when the Sale Deed/Conveyance Deed and Sales Permission has been granted from the Ministry of Rehabilitation, Govt. of India, New Delhi and that the Sale Deed is duly registered in the name of party No. 1 by Shri Madan Lal or RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 2 of 8 through his nominated attorney AND WHEREAS party no.2 has not agreed to pay a sum of Rs. 1,000/- (Rupees One Thousand only) as Earnest Money and the remaining amount of Rs.6,000/- (Rupees Six Thousand only) shall be paid by him to party no.1 within 13 months from the date hereof against receipt and whereas the parties have agreed to certain terms and conditions, hence this deed witnessesth:-
....."
4. Plaintiffs aver that Gurbux Lal acknowledged Kishan Chand Kapoor to be the owner of ½ share in the suit shop before NDMC in year 1968 and before Sales Tax authorities in year 1973. Business of M/s Mehra Clothiers was unprofitable and a new partnership business under the name and style of M/s Mehra Electronics was commenced. Defendant no.1 Gurbax Lal allegedly rendered no accounts of the business of M/s Mehra Clothiers and M/s Mehra Electronics to the plaintiffs or to wife of late Kishan Chand Kapoor. Plaintiffs filed a suit for rendition of accounts and partition of suit shop before the Court of Ld. ADJ, Delhi. Plaintiffs came to know that defendant no.1 Gurbax Lal got executed a sale deed dt. 14.06.2000 in his favour qua the suit shop. The sale deed would show that it was executed by one Prem Nath being the attorney of Madan Lal in favour of Gurbax Lal. Plaintiffs term this sale deed as illegal document. Defendant no.2 K.G. Sharma was impleaded as he started to claim himself to be owner of suit shop being legal heir of late Madan Lal. According to plaintiffs, limitation for filing the suit commenced on 14.06.2000 when defendant no. 1 Gurbax Lal got the sale deed executed in his favour. On these averments, legal heirs of late Kishan Chand Kapoor filed the suit for specific performance on 23.01.2003.
5. Defendant no.1 Gurbax Lal in his written statement states that there was partnership business between him and late Kishan Chand Kapoor, but it could not continue for long and both the partners separated after finalization of accounts. He states that he started his own business in the name of M/s Mehra Electronics, which was later converted into a partnership as he joined his son Surinder Pal as a partner. He avers that suit shop belonged to him, has always been under his ownership and RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 3 of 8 possession remained with him. As regards, the agreement in question he states that due to lapse of several decade he has no recollection. Nonetheless, he 'firmly and explicitly' denies receiving any amount of Rs. 1,000/- as also Rs.6,000 from late Kishan Chand Kapoor. He states that the suit shop was never under the ownership of late Kishan Chand Kapoor. According to him, the suit is highly time barred, barred by Order II Rule 2, CPC and the law of estoppel. He states that one the one hand plaintiffs are seeking specific performance and make the sale deed dt. 14.06.2000 as the basis of their case and on the other hand they are terming the same as illegal document.
6. Defendant no. 2 filed his written statement. He states that his brother Late Madan Lal (who passed away on 12.10.2003) had let out the suit shop to late Kishan Chand Kapoor around year 1955; that he was the only surviving legal heir of late Madan Lal; that after demise of late Madan Lal he became owner of the suit shop and plaintiffs his tenants; that late Kishan Chand Kapoor had parted with possession / sub-let the suit shop to Gurbax Lal without permission of late Madan Lal; that an eviction petition filed by him before Ld. Additional Rent Controller against Kewal Kapoor and others is sub judice; that the agreement dt. 24.07.1963 has no meaning in law as he or late Madan Lal never sold the suit shop to anyone else; that the sale deed dt. 14.06.2000 as bogus and forged document. He seeks dismissal of the suit.
7. Plaintiff filed his replication to the written statements. He reaffirmed his averments in the plaint and refuted the assertions made the defendants in their respective written statements.
8. Issues framed on 06.04.2005 are as follows:-
1. Whether the present suit is maintainable in its present form? OPD
2. Whether the suit is barred by Order 2 Rule 2 CPC? OPD
3. Whether the suit is barred by doctrine of estoppel? OPD(1) RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 4 of 8
4. Whether the present suit is within the period ofs limitation?
OPP
5. Whether the plaintiff has suppressed any material fact of ownership of defendant no. 2 from the Court? OPD(2)
6. Whether the plaintiff is entitled to the relief of specific performance a claimed for? OPP
7. Relief.
9. Issues no. 2, 3 and 4 were treated as preliminary issues. Vide the impugned Order dt. 30.09.2013 Ld. Trial Court gave its findings on issue no. 4 i.e. on the aspect of limitation. Ld. Trial Court observed:-
"12. Admittedly the above said agreement to sell is not an registered agreement, the bars of section 49 of the Registration Act not only make it null and void the eyes of law, but also fails to accept the contention that after almost 40 years the plaintiff has right to revive his claim seeks specific performance of an agreement which is no est in the eyes of law from its very inception.
13. In my opinion the not only suit of plaintiff is hopelessly time barred, but the very basis of the same is void ad intio the eyes of law since outrightly violates the section 17 of the Indian Limitation Act as well.
14. Hence the suit of the plaintiff is hit by limitation and barred under Order 7 Rule 11 CPC. Same is liable to be dismissed.
15. For reasons above said the issued is decided in favour of defendant against plaintiff.
16. In view of the same I do not find it necessary to return my finding on other preliminary issue namely issue No. 2 & 3.
17. Suit of the plaintiff stands dismissed under order 7 Rule II (d) CPC. Let decree sheet be drawn up. File be consigned to Record Room."
10. Arguments heard. Record perused.
11. Having heard the submissions and perused the record, this Court is of the view that the impugned order and decree of Ld. Trial Court cannot be sustained. In terms of Article 54 of the Schedule to Limitation Act, the period of limitation of a suit for specific performance is 3 years and the time from which this period of 3 years begins to run is the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 5 of 8 that performance is refused. In the case at hand, as per the agreement dt. 24.07.1963 Gurbux Lal was required to transfer his 1/2 share in suit shop for a consideration of Rs. 7,000/- when the sale deed/conveyance deed and sales permission is granted from the Government of India. It is clear that no specific date was fixed for performance of the agreement. What was fixed was that the transfer shall be effected as and when sale deed/conveyance deed and sale permission is granted by the Government of India. Now it is a matter of trial, as to when Government of India granted such permission, if any. Further, it would also be a matter of trial as to whether plaintiffs came to the Court within the period of limitation after the performance was refused pursuant to such a permission, if any, having been granted by Government of India. The observations therefore of the Ld. Trial Court that after almost 40 years plaintiffs have no right to revive the claim for specific performance of an agreement cannot be sustained. It is the view of this Court that limitation, under the given set of facts, is a mixed question of law and fact.
12. Ld. Trial Court in its order further observed that as the Agreement to Sell is a non-registered document, section 49 of Registration Act makes it null and void. This observation too cannot be sustained. This observation is contrary to the law of the land for multiple reasons.
(i) Firstly, section 49, Registration Act does not 'make' any unregistered document 'null and void'. What section 49, Registration Act mandates is that a document requiring compulsory registration and not so registered shall not, inter alia, affect any immovable property or be received as evidence of transaction affecting such property.
(ii) Secondly, proviso to section 49, Registration Act provides that such an unregistered document can nonetheless be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction.RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 6 of 8
(iii) Thirdly, section 17(1A), Registration Act mandates that documents containing contracts to transfer for consideration any immovable property for the purpose of section 53A, Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. This amendment in the Registration Act was brought in with effect from 24.09.2001.
This provision makes it absolutely clear that with effect from 24.09.2001 it is only for the purpose of enforcement of rights under the Doctrine of Part Performance under section 53A, Transfer of Property Act that an Agreement to Sell is compulsorily registrable. That apart, this document pertains to a period much prior to 24.09.2001.
(iv) Fourthly, section 17 (2) (v), Registration Act, 1908 too makes it clear that an agreement to sell for the purpose of specific performance of contract requires no compulsory registration.
13. In view thereof, the observations of Ld. Trial Court are contrary to the very provisions of law. It is surprising that Ld. Trial Court quotes section 49, Registration Act to hold that the agreement in question is null and void being unregistered, whereas this provision on the contrary holds that an unregistered agreement can very well be received in evidence in a suit for specific performance.
14. Ld. Trial Court in its order further observed that the very basis of the suit is void ab initio in the eyes of law as it outrightly violates section 17, Limitation Act. Section 17, Limitation Act is on some other aspect of law. Plaintiffs do not invoke section 17, Limitation Act in the suit. If the Ld. Trial Court was referring instead to section 17, Registration Act, then RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 7 of 8 this too will have no application for the very simple reason that an Agreement to Sell for a suit for specific performance requires no registration.
15. Further, the Trial Court in its order took recourse to Order VII Rule 11, CPC and proceeded to 'dismiss' the 'suit'. A 'suit' cannot be 'dismissed' under Order VII Rule 11, CPC. It is a plaint that is rejected under VII Rule 11, CPC. This observation is incorrect for another reason. Issues, including preliminary issues, were framed on the basis of pleadings of parties. As per Order VI Rule 1, CPC pleadings mean plaint and written statement. Therefore, when such preliminary issues were framed on the basis of pleadings, how could the final order be said to have been under Order VII Rule 11, CPC and that too by way of dismissal of the suit.
16. Impugned order and decree dt. 30.09.2013 of Ld. Trial Court cannot be sustained. The same is set aside. Trial Court record be sent back to the concerned Court or the successor Court with a copy of this judgment. The concerned Court / the successor Court shall proceed as per law. The parties / their counsels shall appear before Ld. Trial Court on 28.02.2018. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN
COURT ON 24.02.2018 Digitally signed
MURARI by MURARI
PRASAD SINGH
PRASAD Date:
SINGH 2018.02.24
15:35:22 +0530
(M. P. SINGH)
ADJ-3 (CENTRAL)
TIS HAZARI COURTS
DELHI/24.02.2018
RCA No. 44/16 Kewal Kapoor & Ors. Vs. Gurbux Lal & Anr. Page 8 of 8