Gujarat High Court
Vijayrajsinhji Virbhadrasinhji Gohil vs Sundram Non-Trading on 8 July, 2013
Author: S.H.Vora
Bench: S.H.Vora
VIJAYRAJSINHJI VIRBHADRASINHJI GOHIL....Appellant(s)V/SSUNDRAM NON-TRADING CORPORATION BHAVNAGAR....Respondent(s) C/AO/216/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 216 of 2013 With CIVIL APPLICATION NO. 5580 of 2013 In APPEAL FROM ORDER NO. 216 of 2013 With APPEAL FROM ORDER NO. 217 of 2013 With CIVIL APPLICATION NO. 5581 of 2013 In APPEAL FROM ORDER NO. 217 of 2013 With APPEAL FROM ORDER NO. 218 of 2013 With CIVIL APPLICATION NO. 5582 of 2013 In APPEAL FROM ORDER NO. 218 of 2013 ================================================================ VIJAYRAJSINHJI VIRBHADRASINHJI GOHIL....Appellant(s) Versus SUNDRAM NON-TRADING CORPORATION BHAVNAGAR....Respondent(s) ================================================================ Appearance: MR SN THAKKAR, ADVOCATE for the Appellant(s) No. 1 MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1 MR SURESH M SHAH, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.H.VORA Date : 08/07/2013 COMMON ORAL ORDER
1. Challenge in these Appeals is the order dated 16.10.2012 passed by the learned 5th Additional Senior Civil Judge, Bhavnagar in Special Civil Suit Nos. 159 of 2011, 157 of 2011 and 158 of 2011. As the common questions of law and facts are involved in these Appeals, they are disposed of by Common Order.
The respondents plaintiffs are registered Non-Trading Corporations governed under the Bombay Non-Trading Corporation Act, 1959 (hereinafter referred to as the NTC Act ). Each respondent plaintiff purchased the suit plots of the appellant - defendant for residential house for the members of association for which the parties to the proceedings executed the agreement to sell. The appellant defendant got sub plotting of the land in question by getting lay out plan sanctioned from the competent Authority on 10.5.1995 and as per the said plan, parties to the proceedings entered into sale agreement and in turn the respondents - plaintiffs paid about 90% of the sale price to the appellant - defendant and thus, the sale agreement came into existence on 30.3.1996. As per say of the respondents - plaintiffs, the total sale price was decided as stated in the plaint and each of the respondent - plaintiff made payment to the extent of 90% of the sale price by way of Demand Draft. As per the say of the respondents plaintiffs, as per condition No.3 of the sale agreement that the time was not essence of the contract as parties agreed to execute the sale deed as and when the appellant - defendant acquires the possession of the suit plot from third party and thereafter, title clearance certificate from the learned advocate Mr. A.R. Shridharani was obtained by the appellant defendant. According to the case of the respondents plaintiffs, they came to know about suit plots have got vacated and the respondents - plaintiffs acquired possession prior to 15 to 20 days from issuing notice, in the month of July, 2011. The respondents - plaintiffs informed the appellant - defendant that the respondents plaintiff are ready and willing to pay the remaining amount of consideration and requested the appellant - defendant to execute the sale deed in its favour. Since the appellant - defendant gave evasive reply with respect to the notice of the respondent plaintiffs issued in the month July, 2011, the respondents - plaintiffs filed suit for specific performance of sale agreement and further prayed for relief in term of injunction application and more particularly, para 6 thereof.
3. Learned trial Judge, after hearing both the sides accepted injunction application filed by the respondents - plaintiffs and granted relief by directing the appellant - defendant to maintain status-quo position of the suit plot and further restrained the appellant defendant from transferring, assigning the suit plot to any third party till final disposal of the suit.
4. According to the learned advocate Mr. Thakkar appearing for the appellant, the impugned order is illegal inasmuch as because of repeal of the NTC Act in the year 2005, the respondents - plaintiffs Non-Trading Corporations did not remain in existence and consequently no right remain with the respondents - plaintiffs so as to enforce before the Court of law. It is also submitted by him that as per Section 46 of the Contract Act, the respondents - plaintiffs have to file the suit within reasonable time, but in the case on hand, the respondents did not take any action for a period of about 15 and half years. Therefore, present suit is barred by Article 54 of the Limitation Act. In support of his submission, learned advocate Mr. Thakkar has relied upon the decisions rendered in the cases of Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc. reported in AIR 1997 Supreme Court 412 and Thyssen Stahlunion GMBH Vs. Steel Authority of India reported in 1999 Supreme Court 3923. Lastly, he has also submitted that on the date of passing Resolution on 18.7.2011, the respondents plaintiffs were not in existence and therefore, they cannot come with legal proceedings on the basis of such Resolution and therefore, the plaintiffs have no locus standi to file the suit.
5. The last contention raised by the learned advocate for the appellant defendant is such that the respondents plaintiffs have no locus standi or statutory existence to file present suit and according to the learned advocate for the appellant plaintiff, the Non-Trading Corporations were constituted and incorporated under the provisions of NTC Act, which is subsequently repealed by the State of Gujarat vide Gujarat Act 6 of 2006, which was titled as Bombay Non-Trading Corporation (Gujarat Repeal) Act, 2005, which came into force on 25.2.2005. In this connection, it is relevant to reproduce Section 7(c) of the Bombay General Clauses Act, 1904, which reads as under :
Section 7(c) :
affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.
Plain reading of Section 7(c) makes it clear that Repeal Act, 2005 would not effect any right, privilege, obligation or liability acquired, accrued and incurred under any enactment so repealed.
6. Admittedly, the respondents plaintiffs entered into sale agreement for and on behalf of NTC in the year 1996 . It is evident from reading of sale agreement itself that the appellant defendant was obliged to get vacant possession of the suit land from the third party, title clearance certificate from the learned advocate as named in condition No.3 and thereafter rest of the sale formality was to be concluded. It is true that the respondents plaintiffs have approached the trial Court by way of suit for specific performance after 15 years. It is also admitted fact that no time is fixed in sale agreement and it seems that the suit land was in possession of the third party and appellant defendant was obliged to get vacant possession of the suit land. So, no blame can be found against the respondents plaintiffs, so as to say that the respondents - plaintiffs have filed suit after unreasonable delay. There is nothing on record to show that the appellant respondent refused to perform their part of agreement before the year 2010.
7. There is nothing on record to infer that the respondents plaintiffs were made aware about the possession being obtained from third party and also obtained requisite title clearance certificate as per condition No.3. It is not the case of appellant - defendant that the appellant has ever informed to the respondents plaintiffs that he has acquired possession of the suit land and also title clearance certificate as per condition No.3. Generally, it is true that when time for performance of the contract is not specified then the agreement must be performed within reasonable time and what is reasonable time, is question of fact and such question can be decided at the time of full-fledged trial as there is no evidence placed on record by the appellant defendant in this regard. Similarly, whether any right has been accrued or acquired by the respondents plaintiffs or not is also a question of fact to be established before the trial Court and in absence of such evidence on record, it cannot be inferred that no right was acquired or accrued in favour of NTC before Repeal Act, 2005 came into force.
8. In this factual background of the case, it cannot be said that the transaction in question has been closed prior to Repeal Act, 2005 came into force. So this Court is of the considered opinion that the respondents plaintiffs' rights are saved by virtue of Section 7(c) of the Bombay General Clauses Act, 1904. The respondents plaintiffs retained its rights acquired or accrued in spite of its repeal to continue or institute any legal remedy which may have been available before Repeal Act came into force for enforcement of rights under sale agreement. In the case on hand, it is also matter of investigation whether respondents plaintiffs have lost its rights under sale agreement or not either on the point of limitation or otherwise. What is unaffected by the Repeal Act is a right acquired or accrued upon the repealed statute.
9. In view of this facts, the case laws cited by the learned advocate for the appellant at bar is not helpful to the appellant, at this stage since complex issues of the facts are involved in this case, which are required to be adjudicated by the trial Court and unless and until such complex issues are dealt with, the respondents - plaintiffs cannot be deprived of the remedy of suitable injunction and therefore, learned trial Judge has rightly rejected injunction applications.
10. Thus, learned advocate for the appellant defendant failed to point out as to infirmity or perversity in the impugned order and passed against any law so as to entertain present Appeal From Orders. Therefore, the Appeals From Orders deserve to be dismissed. Accordingly, Appeals are dismissed. In view of the facts and circumstances of the case no order as to costs.
CIVIL APPLICATION Nos.5580 of 2013, 5581 of 2013 and 5582 of 2013:
In view of the dismissal of the main Appeals, these Civil Applications do not survive. Hence, the Applications stand disposed of.
(S.H.VORA, J.) YNVYAS Page 6 of 6