Kerala High Court
M/S.Taj Kerala Hotels And Resorts Ltd vs M/S.Easytec India Pvt. Ltd on 28 October, 2013
Equivalent citations: AIR 2014 KERALA 9, (2013) 4 KER LJ 674 (2013) 4 KER LT 621, (2013) 4 KER LT 621
Bench: Thottathil B.Radhakrishnan, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935
RFA.No. 271 of 2011 ( )
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OS.NO. 93/2009 OF ADDL.SUB COURT, KOTTAYAM
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APPELLANT/PLAINTIFF:
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M/S.TAJ KERALA HOTELS AND RESORTS LTD,
ACOMPANY INCORPORATED IN INDIA UNDER THE
COMPANIES ACT HAVING ITS REGISTERED OFFICE
AT TAJ RESIDENCY, MARINE DRIVE, ERNAKULAM,
KERALA, REPRESENTED BY ITS GENERAL MANAGER
AND POWER OF ATTORNEY HOLDER, SUMAN DUTTA SHARMA.
BY SRI.CICCU MUKHOPADHYA,SENIOR ADVOCATE
ADVS.SRI.E.K.NANDAKUMAR
SRI.A.K.JAYASANKAR NAMBIAR
SRI.K.JOHN MATHAI
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.NITHIN GEORGE
RESPONDENT/DEFENDANT:
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M/S.EASYTEC INDIA PVT. LTD,
ACOMPANY INCORPORATED IN INDIA UNDER THE
COMPANIES ACT HAVING ITS REGISTERED OFFICE
AT EASYTECH HOUSE, UNION CLUB ROAD, KOTTAYAM.
BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE
ADVS. SMT.SMITHA GEORGE
SRI.T.RAMPRASAD UNNI
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 26-09-2013, THE COURT ON 28-10-2013 DELIVERED THE FOLLOWING:
sts
"CR"
Thottathil B.Radhakrishnan
&
A.V.Ramakrishna Pillai, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.271 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of October, 2013 Judgment Thottathil B.Radhakrishnan, J.
1.Plaintiff in a suit for specific performance of a contract for sale of immovable property appeals against the dismissal of the suit as barred by limitation; that point having been decided as a preliminary issue.
2.Heard the learned senior counsel for the appellant and the learned senior counsel for the respondent.
3.On behalf of the appellant, it was argued that the finding of the court below that the suit is RFA271/11 -: 2 :- barred by limitation is not sustainable in law or on facts and that the court below had erroneously held that the suit is barred by limitation merely because the suit was not filed within the period of three years from the date stipulated for the purpose of the contract for sale. It was also argued that the sequence of events and the conduct of parties, including the writ petition that was pending before the High Court of Kerala and other relevant aspects have not been considered. The learned senior counsel made reference to the pleadings in the plaint and argued that the averments therein called for an adjudication on facts after affording the plaintiff the opportunity to adduce evidence. The pleadings in the plaint, according to the learned senior counsel, disclose such events as were required to be determined and considered for the purpose of deciding as to whether the suit is barred by limitation. He made reference to WPC.No.28846 of 2004 filed by the respondent and argued that such conduct clearly demonstrated that the defendant respondent had itself pleaded RFA271/11 -: 3 :- before this Court about the requirement to complete the sale in terms of the contract for sale. It was argued that the proceedings then pending before the Enforcement Directorate had stood in the way of the plaintiff purchasing the property outright and the plaintiff had been always ready and willing to purchase the property. Reliance was placed on Panchanan Dhara v. Monmatha Nath Maity [(2006) 5 SCC 340] to argue that a plea of limitation is a mixed question of law and fact and that the question as to whether a suit for specific performance of contract will be barred by limitation or not, would not only depend upon the nature of the agreement, but also on the conduct of the parties and also as to how they understood the terms and conditions of the agreement. Reliance was also made to Gunwantbhai Mulchand Shah v. Anton Elis Farel [(2006) 3 SCC 634] to argue that even if it is a case where the suit is governed by the first limb of Article 54 of the Limitation Act, that is to say, where the date is fixed for performance, it ought to have been further examined as to RFA271/11 -: 4 :- whether there was any case of extension pleaded and established. He also argued that the question whether time was of the essence of the contract for sale is also a matter that arose for determination, having regard to the facts of the case in hand. It was thus argued that the court below ought not to have held that the suit is barred by limitation even if it was a case where Section 15 of the Limitation Act did not come to the aid of the plaintiff and the plea in that regard in the plaint would have been erroneous in law.
4.The argument advanced on behalf of the respondent is fundamentally that the impugned judgment cannot be faulted on any ground and interference in appeal would not be made unless the order of the trial court is wrong either in law or on facts. It was argued that the court below cannot be found fault with for having held that Section 15 does not come to the aid of the plaintiff and that the time for performance having been fixed, the period of limitation is three years from such RFA271/11 -: 5 :- date, going by Article 54 of the Limitation Act. Reference was made to the decisions of this Court in Haneefa v. United Finance Corporation [2006 (1) KLT 416] and Food Corporation of India v. C.Mohammed Kunhi [2009 (3) KHC 164(DB)] to buttress the submissions on Section 15(1) of the Limitation Act. The learned senior counsel further argued that the plaintiff had pointedly relied on Section 15 of the Limitation Act in the plaint to explain the institution of the suit after the period of three years from the date fixed in the contract for sale for its performance. That plea having been found against, the court below cannot be criticised for having dismissed the suit since at the point of time of examination of the matter while considering a preliminary issue as to limitation and bar to sue by operation of law, the court below was required to consider only the plaint and nothing more. Referring to the sequence of events from the date of sale, it was pointed out that it was after the period of expiry of the agreement that the plaintiff had approached seeking impleadment in RFA271/11 -: 6 :- the writ proceedings filed by the defendant before this Court and the suit was filed only on 3.3.2009 after the High Court had quashed the order of Directorate of Enforcement on 16.7.2008. It was argued that limitation runs from the date fixed for performance, i.e., 10.9.1994 to 10.9.2007 in terms of the first limb of Article 54 of the Limitation Act and the suit filed on 3.3.2009 is clearly barred by limitation and that no equitable consideration can be permitted to be raised in connection with the plea of limitation.
5.Order XIV Rule 2 CPC requires that the court shall pronounce judgment on all issues. Sub-rule 1 of that rule specifically says so. However, the provision in sub-rule (2) of Rule 2 provides that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court, or a bar to the suit created by any law for the time being in force. Therefore, a plea as RFA271/11 -: 7 :- to bar of limitation can be considered as a preliminary issue. But, such determination and decision and disposal on that issue alone can be done only if it could be on an issue of law only. The intent and purpose of Rule 2 of Order XIV is to avoid piecemeal trial of the suit. Only where the suit can be disposed of by determination of a pure issue of law, the exercise permitted under sub-rule (2) of Rule 2 can be undertaken. In Lufthansa German Airlines v. Vij Sales Corporation [(1998) 8 SCC 623], the Apex Court reiterated the undesirability of deciding a suit on a preliminary issue and the insistence that normally all issues should be decided while disposing of the suit. The amendment made in 1976 to Order XIV Rule 2 was specifically referred to by Their Lordships to state that sub-rule (2) of that Rule is an exception where a suit can be disposed of on the question of law only. If the issue as to bar of limitation is a mixed question of law and fact, that cannot be decided and ordered as a preliminary issue in terms of Order XIV Rule 2(2) CPC. Following the precedents RFA271/11 -: 8 :- Gunwantbhai Mulchand Shah (supra) and Panchanan Dhara (supra), it needs to be noted that even in a case where a particular time is fixed for performance of a contract for sale, there is the requirement to further look into, when there is a case of extension pleaded and established. Not only that, when the conduct of parties becomes relevant to determine whether the time was treated as of the essence of the contract or whether consensus arrived at in that regard at the formation of the contract had given way to time not being treated as of the essence of the contract with the passage of time, such matters cannot be determined, except by answering questions of facts which also intricately arise for decision and then, the question of limitation cannot but be treated as a mixed question of law and fact. Though Panchanan Dhara (supra) was a case where date for performance was not specifically fixed in the contract for sale, the law laid in that precedent to the effect that the question as to whether a suit for specific performance of contract will be barred by RFA271/11 -: 9 :- limitation or not would depend not only upon the nature of the agreement but also on the conduct of the parties and also as to how they understood the terms and conditions of the agreement, would also apply to cases where the conduct of parties during the course of the period fixed for performance of the contract may be relevant for decision on the issue as to whether the suit is barred by limitation. Even in such cases, the question of limitation cannot be answered as a pure question of law, to terminate the suit on a preliminary issue referable to bar of limitation, thus closing the litigation on the authority to try a preliminary issue of law as provided for under Order XIV Rule 2(2) CPC.
6.Paragraphs 9 and 10 of the plaint in the suit from which this appeal arises, read as follows:
"9. Even during the pendency of the above writ petition, there had been several discussions between the plaintiff and the defendant wherein the plaintiff had RFA271/11 -: 10 :- made it clear that on disposal of the case or on vacating prohibitory order issued by the Enforcement Directorate, the plaintiff is ready and willing to purchase the property. The plaintiff has been always, subject to the result of the outcome of the writ petition, and even now ready and willing to perform its part of the contract.
After the disposal of the Writ Petition, when the plaintiff called upon the defendant to perform its part of the contract, the defendant refused to proceed in terms with the agreement and was demanding unconscionable amounts for completing the sale transaction.
10. The plaintiff therefore issued a registered lawyers notice dated 20.8.2008, intimating the defendant about the readiness and willingness of the plaintiff to purchase the property and calling upon the defendant to execute and register the sale deed on the consideration agreed upon between the parties. The defendant after receipt of the lawyers notice dated RFA271/11 -: 11 :- 20.8.2008 had sent a reply dated 8.9.2008 through Counsel stating that there was no impediment in transferring the land in favour of the plaintiff even during the pendency of the Writ Petition. The said contention is absolutely baseless, in view of the prohibitory order issued by the Directorate of Enforcement on 28.6.2004, which was under challenge before the Hon'ble High Court."
7.In the light of the aforesaid pleadings, it cannot be held that this is a case where there was no requirement to adjudicate any question of fact regarding the conduct of parties, the nature of the agreement and how the parties understood and proceeded to perform their reciprocal obligations under the contract for sale. Therefore, we are of the view that this was not a case where the court below ought to have decided the issue as to bar of limitation of the suit as an issue of law only and therefore, as a preliminary issue. The impugned judgment is, RFA271/11 -: 12 :- therefore, liable to be vacated and the case remitted for trial of all issues untrammelled by anything stated in the impugned judgment or herein, on the merits of the contentions, except to the extent this judgment holds that the issue of limitation in the case in hand is not an issue of law only.
In the result, the impugned decree and judgment are vacated and the suit is remitted to the court below, to be proceeded with and decided upon afresh on all issues. The parties are directed to mark appearance before the court below on 6.11.2013. In view of this order of remand, refund of court fee paid on this appeal is hereby ordered.
Sd/-
Thottathil B.Radhakrishnan Judge Sd/-
A.V.Ramakrishna Pillai Judge Sha/
-true copy-
PS to Judge