Bombay High Court
Shetty Associates Pvt Ltd vs Samta Builders Pvt Ltd And Ors on 2 May, 2019
Equivalent citations: AIRONLINE 2019 BOM 412
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
ppn 1 nms-495.07 dt. 02-05-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.495 OF 2007
IN
SUIT NO.3417 OF 2003
M/s.Shetty Associates Pvt. Ltd. )
A company duly registered under the provisions)
of Companies Act, 1956 and having its office at )
Jamuna Sadan, M.G. Road, Mulund (W), )
Mumbai - 400 080. ) .. Applicant
Versus
1. Samta Builders Private Limited )
A company duly registered under the provisions)
of Companies Act, 1956 and having its office at )
83/84, Mittal Tower, "A" Wing, Nariman Point,)
Mumbai - 400 021. )
2. Alpesh Shah )
3. Suresh Shah )
both having their address at C/o.Nathoo Lalji )
Charity Trust, Gaushala Compound, )
L.B. Shashtri Marg, Mulund (West), )
Mumbai - 400 080. )
4. Vinay Thakur, an adult, Indian inhabitant )
the present trustee of the Nathoo Lalji Trust, and )
having address at 704, Pleasant Park, Swami )
Samarth Main Road, Lokhandwala Complex, )
Azad Nagar, Andheri (West), Mumbai - 400 053 )
abovenamed, the present Trustees of Nathoo Lalji )
Charity Trust a Public Trust duly registered under )
the Bombay Public Trust Act, 1950 having their )
office at Manu Mansion, 16th Bhagat Singh Road,)
Mumbai - 400 001. ) .. Defendants
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---
Mr.D.D. Madon, Senior Advocate a/w Ms.Dhawani Bokaria a/w
Mr.Manish Parekh I/by M/s.Purnanand & Co. for the
applicant/plaintiff.
Mr.Janak Dwarkadas, Senior Advocate a/w Mr.J.P.Sen, Senior
Advocate a/w Mr.Sharan Jagtiani, Ms.Deepti Panda, Mr.Tejas Shha
I/by Narayanan & Narayanan for the defendant no.1.
Dr.Birendra Saraf a/w Mr.Rajeev Carvalho I/by Mr.Chetan Raithatha
for the defendant nos.2 to 4.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 25 th January, 2019 PRONOUNCED ON : 2 nd May, 2019 Judgment :-
1. By this notice of motion, the applicant (original plaintiff ) seeks various interim reliefs against the defendants. The defendants had raised an issue under Section 9A of the Code of Civil Procedure, 1908 in the affidavit-in-reply filed in this notice of motion and also in the written statement filed by the defendants. In view of the said issue raised by the defendants, this Court by an order dated 23 rd August 2010 framed a preliminary issue of limitation under Section 9A of the Code of Civil Procedure, 1908. The plaintiff entered the witness box on the issue of limitation. The defendants did not lead any oral evidence. Some of the relevant facts for the purpose of ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 3 nms-495.07 dt. 02-05-19.doc deciding the issue of limitation framed under Section 9A of the Code of Civil Procedure, 1908 are set out hereinunder:-
2. On 27th October 1993, the trustees of Nathulalji Charity Trust entered into an Agreement of Lease in respect of the suit property admeasuring 17960.49 sq.mtrs. or thereabout in favour of the plaintiff and the defendant no.1 for a period of 3 years and put them in joint possession. (Hereinafter referred to as the 'said Trust').
The said agreement of lease was extended for a further period of 3 years jointly vide writing dated 21 st June 1996 and lodged for registration commencing from 1st March 1996. On 11th February 1999, the original defendant nos.2 to 6, the defendant no.1 and the plaintiff entered into a Development Agreement. On 3rd June 1999, the original defendant nos.2 to 6 on one hand and the plaintiff on the other hand, entered into another Agreement on similar terms and conditions as were recorded on 11 th February 1999 in respect of the suit land admeasuring 15429.51 sq.mtrs. and gave development rights jointly on the terms and conditions more particularly set out therein.
3. The Charity Commissioner accepted the offer of the plaintiff and the defendant no.1 and enhanced the total consideration by Rs.2,50,000/- by an order dated 29th August 2000. It is the case of ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 4 nms-495.07 dt. 02-05-19.doc the plaintiff that the said Trust by its letter dated 29 th August 2000 addressed to the plaintiff confirmed that sum aggregating to Rs.1,00,000/- paid by the plaintiff earlier along with interest thereon was adjusted against the additional consideration of Rs.2,50,000/- required to be paid as per order of Charity Commissioner. On 18 th October 2000, the advocate for the said Trust addressed a letter to the advocate for the plaintiff forwarding a letter dated 3 rd October 2000 received by them from the defendant no.1 requesting for subdivision of the suit land. By the said letter, the said Trust requested that the plaintiff and the defendant no.1 should come to a mutual agreement failing which the trust shall sub-divide the property as per advice of their Architects.
4. It is the case of the plaintiff that by its advocate's letter dated 11th November 2000, the plaintiff clarified that the agreement to develop/sale property was joint and there was no question of subdivision on the basis of the amount received on 28 th November 2000. The advocate for the said Trust addressed a letter to the advocate for the plaintiff alleging that the property was sold to the plaintiff and the defendant no.1 jointly in ratio of payment made by them to the Trust. The said Trust was interfering with the matter because the payment is delayed. The trust fixed a meeting on 1 st December 2000 to sort out differences. On 12th December 2000, the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 5 nms-495.07 dt. 02-05-19.doc advocate for the plaintiff recorded that a meeting was fixed on 1 st December 2000 however did not take place and requested the advocate for the plaintiff to fix a joint meeting of all parties to resolve outstanding issues.
5. On 2nd January 2001, the Solicitor firm M/s. Shaunak Satpute & Co. who was acting for the said Trust issued a public notice in the local newspapers on behalf of the defendant no.1 stating that the defendant no.1 had agreed to purchase the suit property from the trust and invited objections, if any. On 15 th January 2001, the advocate for the said Trust forwarded a copy of the letter dated 19 th December 2000 addressed by the defendant no.1 to the said Trust. It was stated in the said letter that their clients were not interested in verifying facts from the plaintiff or the defendant no.1 and are only interested in completing transaction as per agreement dated 3rd May 1999. By the said letter addressed by the said Trust, the said Trust threatened to terminate the agreement.
6. On 19th January 2001, M/s. Shaunak Statpute & Co. on behalf of the defendant no.1 addressed a letter to the plaintiff recording telephonic conversation that they had with plaintiff and their advocates whereby raised their objection to the public notice and confirmed that the suit property was acquired jointly by the plaintiff ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 6 nms-495.07 dt. 02-05-19.doc and the defendant no.1 and had accordingly issued clarification by way of corrigendum in the public notice. It is the case of the plaintiff that the clarification came to be issued to the public notice dated 31 st December 2000 in the newspaper to be published on 2 nd January 2001 by M/s. Shaunak Satpute & Co.
7. It is the case of the plaintiff that the plaintiff by its advocate's letter dated 23rd January 2001 to the advocate for the said Trust in reply to the letter dated 15th January 2001 expressed their surprise and called upon the said Trust to explain as to why the letter dated 19th December 2000 addressed by the defendant no.1 was forwarded after a period of one month. It is the case of the plaintiff that by the said letter, the plaintiff once again clarified that the plaintiff was having equal share in the suit property and informed them that unless a joint request was made by the plaintiff and the defendant no.1, the said Trust should refrain from taking any action. The plaintiff protested against the threat of termination of agreement on the ground that the plaintiff had already complied with its obligation. The plaintiff also recorded that the said M/s. Shaunak Satpute & Co. acting as advocates for the defendant no.1 as well as for the Trust created apprehension in the mind of the plaintiff that the trust was joining hands with the defendant no.1 to deprive the plaintiff of its valuable rights in the suit property.
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8. It is the case of the plaintiff that on 23 rd January 2001, the advocate for the plaintiff addressed a letter to M/s. Shanuak Satpute & Co. in reply to their letter dated 19th January 2001 placing on record that they had not received the copy of the clarification issued in the newspaper and requested them to forward the said clarification. The plaintiff once again reiterated that the suit property was acquired jointly and there was no question of any partition thereof.
9. On 25th January 2001, M/s. Shaunak Satpute & Co. as the advocates for the defendant no.1 addressed a letter to the advocate for the plaintiff in reply to the letter dated 23 rd January 2001 confirming that the suit property was purchased jointly however the said Trust wrongly denied that it was purchased in equal share.
10. It is the case of the plaintiff that on 25th January 2001, M/s. Shaunak Satpute & Co. as the advocates for the said Trust addressed a letter to the advocate for the plaintiff alleging that during various meetings held with Mr. Jaisingh Morarji, one of the trustee, by the plaintiff and the defendant no.1, they allegedly agreed to a ratio of 20:80. It was further stated in the said letter that they were not concerned with share holding ratio of the plaintiff and the defendant no.1.
::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 :::ppn 8 nms-495.07 dt. 02-05-19.doc 11. On 2nd March 2001, the advocate for the plaintiff
addressed a letter to the advocate for the said Trust and denied that any meeting had taken place with the trustee or that the plaintiff having agreed to ratio of 80:20. By the said letter, the trust was asked not to create any controversy particularly when drafts forwarded by M/s. Narayanan & Narayanan, advocate for the defendant no.1 also provided for nearly equal area. The plaintiff requested them not to indulge into the arena where they were not concerned.
12. On 2nd March 2001, the advocate for the plaintiff addressed to M/s.Shaunak Satpute & Co. as advocate for the defendant no.1 and reiterated the contents of its earlier letter dated 23rd January 2001. It is the case of the plaintiff that on 9 th March 2001, an appropriate authority issued a Certificate under Section 269-UL (3) of the Income-tax Act, 1961 pursuant to the application dated 24th November 2000 showing the names of both the plaintiff as well as the defendant no.1 as transferees. By letter dated 19 th March 2001, the advocate for the said Trust addressed to the advocate for the plaintiff in reply to the letter dated 2nd March 2001 and reiterated what has been stated by it in letter dated 15th January 2001.
13. By letter dated 16th April 2001, the defendant no.1 ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 9 nms-495.07 dt. 02-05-19.doc informed the advocate for the plaintiff that the claim of the plaintiff of 50% right is false and baseless and the said agreement was entered into only for the sake of convenience. On 24 th May 2001, the plaintiff informed the defendant no.1 about the receipt of copy of the letter issued by Deputy General of Registration and Controller of Stamps in the name of the defendant no.1 and recorded as to why things were being done in its absence or without its knowledge by the defendant no.1.
14. It is the case of the plaintiff that on 1 st June 2001, the defendant no.1 alleged that the suit land was purchased jointly in the ratio of 80:20 and requested to pay stamp duty for 20% portion. On 20th January 2002, the advocate for the said Trust confirmed having agreed to sell the suit property jointly to the plaintiff and the defendant no.1 however alleged that it was requested by the plaintiff and the defendant no.1 to the trustee about sub-division and ratio of 80:20. It was further recorded in the said letter that the plaintiff had objected and asserted that it had equal share. The trust also informed that they had not received any draft Deed of Confirmation from the defendant no.1 in respect of 80% area and therefore requested the plaintiff to send draft Deed of Confirmation for 20% area.
15. By letter dated 16th February 2002, the plaintiff through its ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 10 nms-495.07 dt. 02-05-19.doc advocate's letter denied having any meeting with trustee or had asked the trustee for the division or bifurcation of the suit property in the ratio of 80:20. The plaintiff asked trustee to furnish details of the alleged meeting and the person who had attended such meeting.
16. It is the case of the plaintiff that on 1st June 2002, the defendant no.1 executed a Deed of Confirmation in favour of the trust without knowledge and behind the back of the plaintiff. It is the case of the plaintiff that the said trust addressed a letter to the plaintiff requesting the plaintiff to pay a sum of Rs.7,50,000/- (being 50% amount under clause 2b of the agreement) towards an area of 6250 sq.mtrs. On 25th May 2003, the plaintiff has alleged to forward a cheque of Rs.1 lakh towards further payment as requested by the said trust.
17. It is the case of the plaintiff that the said trust addressed a letter dated 18th June 2003 to the Executive Engineer of Municipal Corporation admitting the existence of joint agreement for development and apprehending submission of proposal by the defendant no.1 on the basis of the alleged fake documents and requested to cancel the permission granted, if any, in favour of the defendant no.1 on the basis of the said alleged fake proposal.
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18. It is the case of the plaintiff that on 4 th September 2003, the plaintiff informed the Executive Engineer of Municipal Corporation giving full details and requesting to cancel the proposal submitted by the defendant no.1 and to fix a joint hearing.
19. It is the case of the plaintiff that on 4 th September 2003/ 5th October 2003, the defendant no.1 commenced the construction of compound wall. On 10th October 2003, the plaintiff lodged a complaint in the local police station of the said alleged construction of compound wall against the defendant no.1. On 14th October 2003, the plaintiff addressed a letter to the Executive Engineer of Municipal Corporation reiterating that the plaintiff had jointly purchased the suit property and calling upon him not to sanction and/or to cancel the permission, if any, granted to the defendant no.1. On 15 th October 2003, the plaintiff through its advocate's letter recorded that the defendant no.1 forcibly dispossessed the security guard of the plaintiff and had razed the structure i.e. cabin of the security guard and name board of the plaintiff without following due process of law.
20. On 18th October 2003 and 20th October 2003, the advocate for the plaintiff called upon the defendant no.1 to put the plaintiff back in joint possession and called upon to restrain from ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 12 nms-495.07 dt. 02-05-19.doc carrying out any construction activities on the suit property.
21. On 23rd October 2003, the plaintiff filed this suit inter alia praying for an order and direction against the defendant no.1 to put the plaintiff in joint possession with the defendant no.1 and for a decree directing partition of the rights arising under the Development Agreement dated 3rd June 1999 in the ratio of 50:50 and for various other reliefs.
22. This Court passed orders on 23rd October 2003, 7th November 2003 and 21st November 2003 in the Notice of Motion No. 3222 of 2003 granting certain interim reliefs and subsequently confirmed the order dated 7th November 2003.
23. The defendant no.1 filed affidavit-in-reply on 24th January 2006. It is the case of the plaintiff that in the said affidavit-in-reply, for the first time, the defendant no.1 alleged that the trust had executed the Deed of Confirmation dated 1st June 2002 and the power of attorney dated 3rd June 2002 in favour of the defendant no.1. The plaintiff filed a Chamber Summons bearing No.1597 of 2005 for deleting the names of the original defendant nos.3 and 5 in view of their demise and to implead newly added appointed trustees. The said chamber summons was made absolute on 17th July 2006.
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24. It is the case of the plaintiff that by letter dated 9 th August 2006 addressed by the advocates of the said Trust to the advocates of the defendant no.1 revealed that the defendant no.1 was interested in sub-dividing the suit property and it had forced the Trust to execute Deed of Confirmation in favour of the defendant no.1. It is the case of the plaintiff that the said Deed of Confirmation was not based on joint instructions and authority of the plaintiff and the defendant no.1. On 9th October 2006, the said Trust through its advocate by addressing a letter to the plaintiff terminated the agreement dated 3 rd May 1999 for the alleged breaches.
25. By letter dated 26th October 2006, the plaintiff through its advocate's letter in reply to the letter of termination dated 9 th October 2006 contended that the plaintiff had not committed any breach and strongly protested against the termination of the development agreement as bad and illegal. On 29th November 2006, Notice of Motion No.3222 of 2003 filed by the plaintiff came to be dismissed as infructuous with liberty to the plaintiff to file a fresh notice of motion after carrying out amendment.
26. The said Trust by its advocate's letter dated 15th November 2006 to the advocate for the plaintiff and to the advocate for the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 14 nms-495.07 dt. 02-05-19.doc defendant reiterated what is stated in the letter of termination. On 18th December 2006, the plaintiff filed a Chamber Summons bearing No.1528 of 2006 for seeking permission to amend plaint and to challenge the notice of termination issued by the trust. The said chamber summons was allowed by this Court some time in the year 2006.
27. On 3rd April 2007, the defendant nos.2 to 6 made a statement before this Court that they had no intention to create any third party rights or to carry out any construction. This Court recorded the said statement and held that there was no interim orders necessary at that stage. This Court directed that the matter be listed under the caption of settlement as parties were exploring possibility of settlement.
28. On 18th April 2007, Notice of Motion No.495 of 2007 was adjourned in view of the settlement talks going on between the parties. On 5th July 2007, the parties continued their statement made before this Court earlier till hearing of the notice of motion. This Court directed to place the notice of motion as well as the Chamber Summons for hearing by an order dated 5th July 2007.
29. On or about 12th September 2007, this Court allowed the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 15 nms-495.07 dt. 02-05-19.doc Chamber Summons bearing No.195 of 2007 taken out by the plaintiff for seeking permission to amend the plaint by challenging the Deed of Confirmation and power of attorney and letter dated 21 st July 2000 along with Resolution dated 28th May 2003 and the plaintiff was allowed to carry out amendment as prayed.
30. On 12th July 2008, the trust through its advocate letter addressed to the advocate for the plaintiff informed that the defendant no.1 had commenced construction work. The said Trust also forwarded its letter dated 22nd May 2008 addressed to the defendant no.1 as well as reply dated 29th May 2008 along with the said letter dated 12th July 2008 to the advocate for the plaintiff.
31. On 10th October 2008, a meeting allegedly took place in the office of the counsel of the said Trust for settlement, however no settlement could be arrived at. It is the case of the plaintiff that on 20th October 2008, the counsel for the said Trust and the defendant no.1 informed that the matter was settled between their respective clients and they proposed to file consent terms between the defendant no.1 and the defendant nos.2 to 4. It was further informed that the conveyance was executed. The plaintiff thereafter called upon the defendant no.1 to give inspection of the documents executed and also for copies thereof. The defendant no.1 gave inspection of the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 16 nms-495.07 dt. 02-05-19.doc alleged Deed of Conveyance dated 12th September 2008 and furnished copy thereof. The defendant no.1 gave inspection of the alleged Deed of Conveyance dated 12th September 2008 and furnished copy thereof to the plaintiff in the month of October 2008. The plaintiff thereafter took out Chamber Summons bearing No.1652 of 2008 to challenge the alleged Deed of Conveyance and the consent terms between the defendant no.1 on one hand and the defendant nos.2 to 4 on the other hand. By an order dated 25 th November 2008, this Court allowed the said chamber summons.
32. On 23rd March 2009, the Notice of Motion No.495 of 2007 filed by the plaintiff came to be allowed. In the month of April 2009, the defendant no.1 and the defendant nos.2 to 6 filed an appeal before the Division bench of this Court impugning the said order dated 23rd March 2009. By an order dated 6th May 2009, Division bench of this court has set aside the order dated 23 rd March 2009 passed by the learned Single Judge in the Notice of Motion No.495 of 2007 with a direction to frame a preliminary issue of limitation under Section 9A of the Code of Civil Procedure, 1908. The plaintiff filed a Special Leave Petition against the said order dated 6th May 2009. On 14th September 2009, the Hon'ble Supreme Court directed this Court to try and dispose of the Notice of Motion No.495 of 2007 within a period of three months from the date of ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 17 nms-495.07 dt. 02-05-19.doc receipt of the said order dated 14 th September 2009 passed by the Hon'ble Supreme Court.
33. Since this Court had framed a preliminary issue of jurisdiction based on the issue of limitation raised by the defendants under Section 9A of the Code of Civil Procedure, 1908, learned counsel for the parties addressed this Court only on the said preliminary issue of limitation which is being decided by this order.
34. Mr. Madon, learned senior counsel for the plaintiff invited my attention to some of the documents annexed to the plaint, affidavits filed by the parties and the averments made therein. He also invited my attention to various orders passed by this Court in various chamber summons filed by his clients in the Notice of Motion No.495 of 2007, order passed by the Division bench of this Court and the order passed by the Hon'ble Supreme Court arising out of the said proceedings. He also invited my attention to the averments made by the plaintiff in the plaint stating that the suit was within the period of limitation, the plea of limitation raised by the defendants in the affidavit-in-reply, the plea of limitation raised by the defendant no.1 in the written statement and more particularly paragraphs 2, 66 & 70.
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35. It is submitted by the learned senior counsel that the letter dated 18th October 2000 from M/s. Shaunak Satpute & Co., Solicitor who were then representing the said Trust and were also acting for the defendant no.1 which letter was received by the plaintiff on 27 th October 2000, period of limitation could not have commenced earlier. He submits that though the plaintiff had led evidence on issue of limitation, none of the defendants led any oral evidence.
36. Learned senior counsel invited my attention to some of the paragraphs in the affidavit in lieu of examination-in-chief filed by the witness examined by the plaintiff and also his cross-examination and more particularly in reply to question nos.33, 37, 38 and 59 to 60. It is submitted by the learned senior counsel that the trustees had admitted the development agreement. No dispute has been raised by any of the defendants in respect of the claim of specific performance sought by the plaintiff. The defendants have raised only the dispute in respect of the ratio between the plaintiff and the defendant no.1 i.e. either 50:50 or 80:20.
37. Learned senior counsel for the plaintiff invited my attention to various prayers in the plaint filed by his client inter alia praying for joint possession and partition of the suit property in the ratio of 50:50, prayer for specific performance of the development agreement ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 19 nms-495.07 dt. 02-05-19.doc in the ratio of 50:50. He submits that by the said letter dated 18 th October 2000, the defendant no.1 had raised dispute only in respect of the ratio of 50:50 as claimed by the plaintiff. Insofar as the prayer clauses (b)(ii) and (b)(iii) of the plaint is concerned, it is submitted that cause of action in respect of those prayers would commence on the date of filing suit for appointment of Court Commissioner for effecting partition of the suit property. He submits that Deed of Confirmation relied upon by the defendants was executed on 3 rd May 2002. By prayer clause (b)(i)(a) of the plaint, the plaintiff had challenged the said Deed of Confirmation dated 3rd June 1999 which was disclosed in the affidavit filed by the defendants in chamber summons in the month of February 2007.
38. In so far as prayer clause (aa) of the plaint is concerned, it is submitted by the learned senior counsel that the said development agreement was terminated by the said Trust on 9 th October 2006 qua the plaintiff and the defendant no.1 which termination notice was challenged by his client in the said prayer clause (aa). He submits that this Court allowed the chamber summons filed by the plaintiff for seeking amendment and to impugn the said letter of termination by passing an order on 18th December 2006. He submits that the defendant no.1 had also filed a suit inter alia praying for impugning the letter of termination i.e. Suit No.3561 of 2006.
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39. Insofar as prayer clauses (gg), (hh), (ii) and (jj) of the plaint are concerned, the plaintiff had challenged the consent terms dated 14th October 2008 between the defendant no.1 on one hand and the defendant nos.2 to 6 on the other hand. He submits that by an order dated 18th December 2016, this Court allowed the said chamber summons. In the year 2016, the plaintiff also carried out amendment and brought two trustees of the trust on record.
40. Learned senior counsel submits that on 3rd June 1999, an agreement was arrived at between the trustees, the defendant no.1 and the plaintiff. He relied upon clauses 4 and 8 of the said development agreement. The Charity Commissioner had granted sanction under Section 36 of the Maharashtra Public Trusts Act, 1950 in favour of the trust. He submits that the Charity Commissioner had not granted sanction under Section 36 of the Maharashtra Public Trusts Act, 1950 in the ratio of 20:80. He submits that under the said development agreement, the plaintiff and the defendant no.1, both had agreed to make payment to the said trust jointly.
41. Learned senior counsel invited my attention to the written statement filed by the defendant nos.2 to 6 and letter dated 9 th August 2006 addressed by the said Trust to the defendant no.1. He submits ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 21 nms-495.07 dt. 02-05-19.doc that by the said letter, the Trust denied the bifurcation of the property in two portions as sought to be canvassed by the defendant no.1. This letter was addressed by the Trust, two months prior to the date of issuance of termination notice. It is submitted that none of prayers of the plaint thus can be held as barred by law of limitation.
42. Mr. Sen, learned senior counsel for the defendant no.1, on the other hand, invited my attention to various prayers in the plaint including the amended prayers which were inserted in view of various orders passed by this Court allowing various chamber summons filed by the plaintiff. Insofar as the prayer clause (bb) of the plaint is concerned, it is submitted by the learned senior counsel that cause of action in respect of the said prayer had arisen when there was any alleged breach or refusal on the part of the defendant no.1 to perform its part of the obligation under the said development agreement. He submits that this prayer is ex facie barred by law of limitation. In so far as prayer clause (cc) of the plaint is concerned, it is submitted that since this prayer is consequential to the prayer clause (bb), prayer clause (cc) is also barred by law of limitation.
43. Insofar as the prayer clause (b)(i)(a) of the plaint is concerned, it is submitted that by the said prayer, the plaintiff had challenged the Deed of Confirmation between the defendant no.1 ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 22 nms-495.07 dt. 02-05-19.doc and the defendant nos.2 to 6. The amendment in respect of the said prayer was allowed on 8th February 2007. Prayer clause (a) of the plaint is seeking joint possession of the property. Prayer clause (b) of the plaint is seeking partition of the rights arising under the development agreement dated 3rd June 1999 in the ratio of 50:50.
44. In so far as prayer for specific performance is concerned, it is submitted that the dispute between the parties was in respect of the share in the suit property. He invited my attention to paragraph 10 of the affidavit in lieu of examination-in-chief filed by the witness examined by the plaintiff and would submit that even in the said affidavit, it was clear case of the plaintiff that the ratio/share in the suit property between the plaintiff and the defendant no.1 was disputed.
45. It is submitted by the learned senior counsel that the trust had already repudiated the agreement on 18th October 2000 between the plaintiff and the defendant no.1 and thus the cause of action for filing the suit for specific performance would commence from the date of receipt of the said notice repudiating the said development agreement i.e. 27th October 2000 and not on the date of termination. He submits that repudiation of the agreement can be in any form.
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46. Learned senior counsel placed reliance on the cross- examination of the witness of the plaintiff and more particularly to his answers to question nos.27 and 28 and would submit that the said witness admitted in his cross-examination that share of the plaintiff was disputed by the defendants and thus breach was already committed.
47. Learned senior counsel invited my attention to the averments made in paragraphs 6(b) to 6(e), 6(g), 6(l), 6(h), 6(p), 6(s), 6(v), 6(x), 7(a) and 7(b) in the plaint dealing with the issue of proportion of the shares between the plaintiff and the defendant no.1. He submits that the plaintiff did not pray for specific performance on receipt of the letter dated 18th October 2000 but filed a suit for possession/partition. He submits that prayer for partition cannot be considered as prayer for for specific performance.
48. It is submitted by the learned senior counsel that the averments for seeking specific performance of the development agreement and for seeking partition of the property are different. The plaintiff had not made any averments in respect of its alleged readiness and willingness to perform its part of the obligation earlier when there was no prayer for specific performance of the development ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 24 nms-495.07 dt. 02-05-19.doc agreement. The said relief for specific performance is sought only in the year 2006. Learned senior counsel invited my attention to the order dated 18th December 2006 and would submit that all contentions on merits of all the parties were kept open while allowing the plaintiff to carry out amendment and to seek relief for specific performance.
49. Learned senior counsel submits that Article 54 of the Schedule to the Limitation Act, 1963 would apply to the prayer for specific performance which is 3 years from the date of refusal of the obligation of the defendant no.1 by them and the said period would not commence from the date of termination of the said agreement. He submits that letter of termination cannot extend the period of limitation in the suit filing for specific performance.
50. Insofar as prayer clause (b)(i)(a) of the plaint is concerned, it is submitted by the learned senior counsel that by the said prayer, the plaintiff had challenged the Deed of Confirmation dated 3 rd May 2002. Chamber summons was filed by the plaintiff on 8 th February 2007 which came to be allowed on 12 th September 2007. He submits that the order allowing the said amendment would not relate back to the date of the original cause of action.
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51. Learned senior counsel for the defendant no.1 placed reliance on paragraph 13 of the affidavit in lieu of examination-in- chief filed by the witness examined by the plaintiff and would submit that the said witness has deposed that the said Deed of Confirmation came to his knowledge on 27th January 2006.
52. Learned senior counsel invited my attention to the averments made in paragraph 6(v), 6(w) and 6(x) of the plaint. He submits that in the said paragraphs, the plaintiff has referred to the Draft Confirmation Deed. By letter dated 1 st June 2002, the trust had called upon the plaintiff to sign the said Confirmation Deed. The said Confirmation Deed was registered on 3rd May 2002. The plaintiff ought to have made an inquiry about the said Deed of Confirmation with the defendants. He submits that in view of the said Deed of Confirmation having been registered, the plaintiff had constructive notice in respect of the Deed of Confirmation. The plaintiff cannot wait for copy of the said Deed of Confirmation till the affidavit-in-reply was filed by the defendant no.1 thereby enclosing the said copy of the Deed of Confirmation. The plaintiff all throughout was aware of the said Deed of Confirmation and cannot plead ignorance thereof.
53. Dr. Saraf, learned counsel for the defendant nos.2 to 4 ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 26 nms-495.07 dt. 02-05-19.doc submits that prayers in the plaint are in three parts i.e. (i) for partition, (ii) challenging the termination of the development agreement and for seeking specific performance thereof and (iii) cancellation of various documents.
54. Learned counsel for the defendant nos.2 to 4 invited my attention to the averments made in paragraph 2 of the affidavit in support of the notice of motion and would submit that the suit filed by the plaintiff is essentially against the defendant no.1. The claim for partition only was made consciously by the plaintiff. At that stage, the suit was not directed against the defendant nos.2 to 4. He submits that the relief for partition claim by the plaintiff cannot be considered as a suit for specific performance.
55. Learned counsel for the defendant nos.2 to 4 placed reliance on Article 54 of the Schedule to the Limitation Act, 1963 and would submit that the period of 3 years provided for filing of a suit for specific performance would commence from the date when the performance of the obligation under the said development agreement was allegedly refused by the defendant no.1 including the obligation to perform even part of the obligation under the said development agreement. He also placed reliance on Article 55 of the Schedule to the Limitation Act, 1963 and would submit that the said ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 27 nms-495.07 dt. 02-05-19.doc Article deals with compensation in case of successive breach. Article 54 does not contemplate any period of limitation in respect of the successive breach. It is submitted that under Article 54, cause of action arises when the performance is refused by the defendant no.1 and no fresh cause of action arises when there is any alleged successive breach committed by the defendants. Articles 54 and 55 apply in different situation.
56. It is submitted that on 27th October 2000, the plaintiff had received a notice from the trust to divide property in the ratio of consideration paid by the plaintiff and the defendant no.1. He invited my attention to the reply of the witness examined by the plaintiff and more particularly to question no.28 and would submit that the said witness has admitted that breach of agreement occurred according to the plaintiff on 27th October 2000. He submits that a suit for specific performance thus ought to have filed on or before 26 th October 2003 whereas the plaintiff only filed a suit for partition and joint possession on 23rd October 2003. There was no prayer for specific performance in the original plaint. The suit was not directed against the trust.
57. It is submitted that on 9th October 2006, the said development agreement was terminated. The plaintiff filed a chamber ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 28 nms-495.07 dt. 02-05-19.doc summons for seeking amendment and to challenge the letter of termination and for seeking specific performance only on 30 th January 2006. He submits that the challenge to a letter of termination is in aid of specific performance and thus notice of termination by letter dated 9th October 2006 would not give a fresh cause of action. He submits that reliefs thus sought by the plaintiff by 2 nd amendment are ex facie barred by law of limitation.
58. Insofar as the challenge to the Deed of Confirmation and power of attorney is concerned, it is submitted that the plaintiff had sought amendment so as to challenge the Deed of Confirmation and power of attorney by filing a separate chamber summons. The said chamber summons was allowed on 12th September 2007. He submits that the plaintiff had challenged the consent terms dated 14 th October 2008 between the defendant no.1 and the original defendant nos.2 to 6 by filing Chamber Summons No.1562 of 2008. By an order dated 18th November 2008, the said chamber summons came to be allowed by this Court.
59. It is submitted that the prayer in the plaint challenging the termination of notice and consent terms is nothing but a plea of specific performance which is ex facie barred by law of limitation and thus all prayers such as challenge to the termination of notice, consent ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 29 nms-495.07 dt. 02-05-19.doc terms and power of attorney are also barred by law of limitation.
60. Insofar as the issue of limitation raised by the defendant nos.2 to 4 in respect of the reliefs sought by the plaintiff are concerned, Dr.Saraf, learned counsel for the defendant nos.2 to 4 placed reliance on the following judgments :-
(i) Somabhai Kanjibhai Patel Vs.Abbasbhai Jafarbhai Daginawalla & Ors. 1993(2) GLR 1337 - (paragraphs 2, 5 and
6);
(ii) Ramanna Shetty and Ors. Vs.Tajappa Shetty & Ors., 1956 Madras 405 (paragraph 5) ;
(iii) T.L. Muddukrishana & Anr. Vs.Smt.Lalitha Ramchandra Rao, AIR 1997 SC 772 (paragraphs 2 and 8);
(iv) K.Raheja Constructions Ltd. & Anr. Vs. Alliance Ministries & Ors., 1995 Supp (3) SCC 17 (paragraph 1, 2 and
4);
(v) Tarlok Singh Vs. Vijay Kumar Sabharwal, (1996) 8 SCC 367- (paragraph 3, 5 and 6);
(vi) Van Vibhag Karmchari Griha Nirman Shakari Sanstha Maryadit (Regd.) Vs. Ramesh Chander & Ors., (2010) 14 SCC 596 (paragraphs 2 to 4, 8, 9, 14, 19, 22, 27, 30 to 32);
(vii) Gaurishankar and Ors. Vs.Ibrahim Ali, AIR 1929 Nagpur 298 (page 304);
::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 :::ppn 30 nms-495.07 dt. 02-05-19.doc (viii) Raja Rampal Singh Vs. Balbhaddar Singh, Vol.XXIX Indian Appeals 203 (pages 211 and 212);
(ix) Rajasthan Housing Board Vs. New Pink City Nirman Sahkari Samiti Limited and Anr., (2015) 7 SCC 601 (paragraph 16);
(x) M/s.J.M. Construction Pvt. Ltd. Vs. Smt.Krishna Sachdev & Ors., 2016 SCC OnLine Del 10 (paragraphs 13, 17, 19, 58, 61 and 62);
61. It is submitted by the learned counsel for the defendant nos.2 to 4 that even if there is refusal for comply with the obligation of any part of the contract, cause of action for the entire contract commences for filing a suit for specific performance. These judgments are also relied upon in support of the submission that the suit for partition is treated as suit for specific performance. He submits that the principles of Order II Rule 2 of the Limitation Act, 1963 apply to the matter. When the plaintiff had applied for amendment in respect of various additional reliefs, the said amendment has to be treated as a fresh suit. He submits that since the prayer for specific performance itself is barred by law of limitation, prayer for possession also stands time barred. He submits that though the original defendant nos.2 to 6 were impleaded as parties, there was no plea for specific performance raised against these defendants.
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62. It is submitted that even if the prayer clause (a) is not considered as time barred by this Court and if the other prayers are held time barred, simplicitor prayer clause (a) cannot be proceeded with or granted by this Court. It is submitted that since a suit for specific performance was itself barred by law of limitation, a suit for challenging Deed of Confirmation and power of attorney which is in furtherance of the suit for specific performance is also barred by law of limitation.
63. In his alternate submission, it is submitted that in any event, cause of action for challenging the Deed of Confirmation would commence from the date of knowledge of the plaintiff about the execution of the Confirmation Deed. He submits that the case of the plaintiff that the date of knowledge of the Confirmation Deed was on the date of the service of the affidavit-in-reply filed by the defendant no.1 is absolutely false. Insofar as the knowledge of the plaintiff about power of attorney is concerned, it is the case of the plaintiff in the plaint that the plaintiff came to know about the said power of attorney on 18th June 2003.
64. Learned counsel invited my attention to the answers given by the witness examined by the plaintiff to question nos.20, 21 to ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 32 nms-495.07 dt. 02-05-19.doc 25, 29, 30 to 36, 38 to 40 and 43. He submits that the knowledge of the architect appointed by the plaintiff would amount to the knowledge of the plaintiff in respect of the Deed of Confirmation and power of attorney or in any event, the plaintiff had issued constructive notice of this document.
65. Mr. Dwarkadas, learned senior counsel for the defendant no.1 with permission of the Court made additional submissions on behalf of the defendant no.1. He invited my attention to prayer clauses (a) and (b) and would submit that prayer clause (a) was for seeking joint possession of the suit property with the defendant no.1. Prayer clause (b) was for seeking partition of the alleged suit property arising under the Development Agreement dated 3 rd June 1999. He submits that two rights were created under the said development agreement. The trust was the owner of the land and the plaintiff and the defendant no.1 were appointed as developers. In support of this submission, he placed reliance on clauses 1, 21, 25 and 26 of the Development Agreement. He submits that when prayer for partition is claimed, owner of the property has to be involved. The original defendant nos.2 to 6 would not have been impleaded only as former parties and without seeking prayers against them.
66. Mr. Madon, learned senior counsel for the plaintiff in ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 33 nms-495.07 dt. 02-05-19.doc rejoinder submits that cause of action for seeking possession of the property arose when the plaintiff was dispossessed. The plaintiff was dispossessed on 15th October 2003 and within 7 days from the dispossession, a suit came to be filed on 23 rd October 2003. He submits that prayer clause (a) thus for joint possession with the defendant no.1 is within time and cannot be considered as barred by law of limitation. He submits that all the defendants had confirmed from time to time that the plaintiff was entitled to 50% share of the development agreement and thus there was no need for the plaintiff to file a suit for specific performance before the the date of the trust terminating the said development agreement.
67. Learned senior counsel placed reliance on the public notice dated 31st December 2002 issued by Shaunak Satpute & Co., advocates for the defendant no.1 in respect of the suit property stating that the defendant no.1 had agreed to purchase the suit property from the trustees of the trust on as-is-where-is basis. He also placed reliance on the Clarification to the Public Notice Appearing on 2 nd January 2001 stating that the defendant no.1 had agreed to purchase the suit property from the trustees of Nathoo Lalji Charitable Trust as per agreement dated 3rd June 1999 between the trustees as Vendors and the defendant no.1 and the plaintiff as the Purchasers therein. He placed reliance on the notice dated 3rd June 2002 from the said ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 34 nms-495.07 dt. 02-05-19.doc Trust to the plaintiff allegedly asking the plaintiff to make payment in respect of net area of the land 6250 sq.mtrs. amounting to Rs.7.50 lakhs.
68. The defendant nos.2 to 4 have disputed the existence of these documents in the pleadings filed by them before this Court. It is the case of the defendant nos.2 to 4 in the written statement and more particularly paragraphs 32 and 42 that the said letter dated 3 rd June 2002 is fabricated. The said letter is also not proved in oral evidence. The trust has also disputed the existence the receipt of letter dated 25th May 2003 allegedly addressed by the plaintiff to the defendant nos.2 to 4.
69. Mr. Madon, learned senior counsel submits that power of attorney relied upon by the defendants is not a registered document. A copy of the said power of attorney was never given to the plaintiff by the defendants. There is no cross-examination of the plaintiff on the issue of alleged date of knowledge of the plaintiff based on the date of service of the affidavit-in-reply filed by the defendants. No suggestion was put to the witness of the plaintiff about the earlier knowledge of the plaintiff in respect of the Deed of Confirmation and power of attorney.
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70. Learned senior counsel distinguishes the judgment of the Hon'ble Supreme Court in the case of Rajasthan Housing Board (supra). He strongly placed reliance on the letter dated 18th June 2003 from the defendant nos.2 to 4 to the Municipal Corporation. This alleged letter dated 18th June 2003 is strongly denied by the defendant nos.2 to 4 in the written statement filed by them and in particular paragraph 33 thereof.
71. Learned senior counsel for the plaintiff placed reliance on the letter dated 18th October 2003 from the advocate for the plaintiff to the defendant no.1 contending that there was no power of attorney executed by the defendants in favour of anybody. He submits that this letter has not been denied by the defendant no.1.
72. Insofar as the issue raised by the defendants that the knowledge of the architect of the plaintiff about the Deed of Confirmation and the power of attorney would amount to the knowledge of the plaintiff is concerned, it is submitted that an architect is not an agent of the plaintiff but was acting on principal to principal basis.
73. The defendants did not lead any evidence before this Court to prove that the said architect was an agent of the plaintiff or ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 36 nms-495.07 dt. 02-05-19.doc otherwise. He submits that the defendants have admitted at least 25% share of the plaintiff in the suit property. This Court cannot non-suit, the plaintiff on that ground, the Court has ample power to mould the relief.
74. In so far as the issue of constructive notice raised by the defendant no.1 is concerned, Mr. Madon, learned senior counsel for the plaintiff placed reliance on the judgment of the Gujarat High Court in the case of Bahadurbhai Laljibhai Malhotra Vs.Ambalal Joitaram & Ors., (2015) 3 GLR 2760 and in particular paragraph 7 thereof and would submit that even in case of registration of a document, it was always open for the plaintiff to point out as to manner and source of knowledge of transaction. The world at large, cannot be attributed deemed knowledge of offending transaction and thus, the period of limitation to question the legality thereof would not commence from the date of registration of instrument under Section 3 of the Transfer of Property Act, 1882.
75. Mr. Madon, learned senior counsel for the plaintiff invited my attention to paragraph 6 of the written statement filed by the original defendant nos. 2 to 4 and would submit that the trust has not disputed in the said written statement that the plaintiff was entitled to the share in the suit property in the ratio of 50:50.
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76. Dr. Saraf, learned counsel for the defendant nos.2 to 4 invited my attention to the reply to question no.56 and would submit that the witness was called upon to explain as to why various documents referred by the plaintiff in the plaint were not part of the affidavit in lieu of examination-in-chief of the witness nor the affidavit of documents though those letter were part of the plaint for the issue of limitation. The said witness deposed that it was his personal opinion that those letters were not necessary for the issue of limitation.
77. Insofar as the letter dated 9th August 2006 from the trust to the defendant no.1 which was relied upon by Mr. Madon, learned senior counsel for the plaintiff is concerned, it is submitted by Dr.Saraf, learned counsel for the defendant nos.2 to 4 that the said letter was read by the plaintiff out of the context. The said letter was addressed in view of the inter se dispute between the defendants and in any event, the said letter was addressed after expiry of the period of limitation and thus would not extend the period of limitation and would not give any fresh cause of action.
Reasons and conclusions :
78. The limited issue to be considered at this stage is, whether ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 38 nms-495.07 dt. 02-05-19.doc any of the prayers in the suit is barred by law of limitation or not ?
79. By various chamber summons, the Plaintiff has amended the plaint and has added various prayers in the plaint. The Plaintiff has examined a witness; whereas none of the Defendants examined any witness on the issue of limitation.
80. In so far as prayer clause (a) by which the Plaintiff has prayed for a decree and order, directing Defendant No.1 to put the Plaintiff in joint possession with Defendant No.1 is concerned, it is the case of the Plaintiff that the prayer for joint possession could be claimed by the Plaintiff only when the Plaintiff was dispossessed by the Defendant. It is the case of the Plaintiff that the Plaintiff was dispossessed only on 15th October 2003; whereas the suit for joint possession and for various other reliefs came to be filed on 23 rd October, 2003. It is the case of the Plaintiff that the prayer for joint possession thus cannot be considered as barred by law of limitation in any circumstances. The period of limitation for possession of the property is 12 years. Suit is filed within 12 years of alleged dispossession. I am thus inclined to accept the submission of Mr. Madon, learned Senior Counsel for the Plaintiff that in so far as prayer clause (a) is concerned, the same cannot be considered as barred by law of limitation.
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81. It is the case of the Defendants that the Plaintiff was dispossessed prior to 15th October 2003. In my view, the prayer clause
(a) is thus within the time prescribed under the provisions of the Limitation Act, 1963 and is not barred by Law of Limitation. There is no substance in the submissions made by Mr. J.P. Sen, learned Senior Counsel for Defendant No.1 and Dr. Saraf, learned Senior Counsel for Defendants No.2 to 4 that prayer clause (a) is barred by Law of Limitation.
82. In so far as prayer clause (aa) of the Plaint, inter alia, for a declaration that the termination notice dated 9.10.2006 is illegal, bad in law and is not binding upon the Plaintiff is concerned, it is not in dispute that the said notice of termination was issued during the pendency of the suit and thus, cannot be considered as barred by Law of Limitation.
83. In so far as prayer clause (bb) i.e. for a declaration that the Development Agreement dated 3rd June, 1999 is valid, subsisting and binding upon the parties and for seeking a specific performance of the said Agreement dated 3rd June, 1999 is concerned, the defendants No.2 to 4 had issued a letter dated 18 th October, 2000 repudiating the Development Agreement between the Plaintiff and the Defendants ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 40 nms-495.07 dt. 02-05-19.doc No.2 to 4 which was received by the Plaintiff on 27 th October 2000. Admittedly, when the suit was filed originally on 22nd October, 2003, there was no prayer for specific performance of the Development Agreement. By the said letter dated 18th October, 2000, the share of the Plaintiff in the suit property was disputed. The suit originally filed by the Plaintiff was essentially a suit against Defendant No.1 for partition and that the said suit was not directed against the Defendants Nos. 2 to 4. It is an admitted position that prayer clause (bb) for seeking performance of the Development Agreement dated 3rd June, 1999 was inserted by way of an amendment in the plaint only in the year 2006. It is vehemently contended by the learned Counsel for the Defendants that a suit for partition cannot be construed as a suit for specific performance. The agreement can be repudiated in any form.
84. My attention is drawn to the cross examination of the witness examined by the Plaintiff and more particularly, to the answers to questions No. 27 and 28. A perusal of the said part of the deposition of the Plaintiff clearly indicates that the said witness examined by the Plaintiff admitted in cross examination that the share of the Plaintiff was disputed by the said letter dated 18 th October, 2000 and, thus a breach was already committed. It is clear that though even, according to the Plaintiff, the breach was committed in ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 41 nms-495.07 dt. 02-05-19.doc view of the letter dated 18 October 2000, which was received by the Plaintiff on 27th October, 2000, the Plaintiff initially prayed only for partition of the property and not for specific performance.
85. This Court, in the Chamber Summons filed by the Plaintiff for addition of the prayer for specific performance had made it clear that all contentions of the parties on limitation were kept open. The amendment thus allowed by this Court in the Chamber Summons filed by the Plaintiff inserting prayer of specific performance in the year 2006 would not relate back. Under Article 54 of Schedule I to the Limitation Act, 1963, a suit for specific performance has to be filed within three years from the date of refusal of the obligation on the part of the Defendant under the said Development Agreement.
86. In my view, no fresh cause of action for filing a suit for specific performance would start from the date of termination of the development agreement. The cause of action for filing such a suit had already arisen when the Defendants had refused to perform any part of their obligation under the Development Agreement or the rights of the Plaintiffs under the said Development Agreement were disputed by the Defendants. The suit for partition cannot be construed as a suit for specific performance. Both the suits which are for two different reliefs, cannot be mixed up with each other. Admittedly, there were no averments in the plaint prior to the date of carrying out ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 42 nms-495.07 dt. 02-05-19.doc amendment in the Plaint that the Plaintiff was ready and willing to performance its part of the obligation under the said Development Agreement, throughout. In my view, the prayer for specific performance ought to have been applied for within three years from the date of alleged refusal of the obligation of the Defendants under the Development Agreement and fresh period of limitation could not be commenced from the date of termination of the said Development Agreement.
87. A perusal of Article 54 of Schedule I to the Limitation Act, 1963 clearly indicates that a suit for specific performance has to be filed within three years from the date when the performance of the obligation under an agreement is allegedly refused by the defendant including obligation to perform any part of the agreement. However, under Article 55 of the Limitation Act, 1963, a party is entitled to compensation in case of successive breaches. No fresh period of limitation commences upon receipt of a letter of termination of the agreement in a situation where the performance on the part of the Defendants to comply with their obligation had been already refused earlier. In my view, the provisions of Articles 54 and 55 of Schedule I of the Limitation Act, 1963 would apply in two different situations.
88. Gujarat High Court in the case of Somabhai Kanjibhai ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 43 nms-495.07 dt. 02-05-19.doc Patel vs. Abbasbhai Jafarbhai Daginawala and ors. (supra) has held that in a contract for sale of all seven plots, sale of one plot only would amount to refusal to perform the contract in its entirety. The starting point of limitation would come into play as soon as performance of the contract in its entirety is refused either expressly or by necessary implication evinced by such contract of sale of one plot therefrom. It is held that if the starting point of limitation is not allowed to run on the ground of refusal of performance of the contract in part, no suit could be instituted till the performance of the contract in its entirety is refused. In that case, the suit filed before the entire contract is broken might be branded as premature. It is held that besides, the starting point of limitation cannot be permitted to be postponed indefinitely as in that case. The prescribed period of limitation under Article 54 of the Act is three years from the date performance of the contract is refused to the knowledge of the litigating party. In my view, the principles laid down by Gajarat High Court in the case of Somabhai Kanjibhai Patel vs. Abbasbhai Jafarbhai Daginawala and ors. (supra) squarely apply to the facts of this case. I am in respectful agreement with the view expressed by the Gujarat High Court in the said Judgment.
89. In the facts of this case also, the extent of entitlement of the Plaintiff in the suit property was disputed by the Defendants much ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 44 nms-495.07 dt. 02-05-19.doc prior to the date of the Plaintiff filing the suit. Before inserting the prayer for specific performance in the plaint, the cause of action had already arisen for filing the suit for specific performance on the date of receipt of the notice of the Trust by the Plaintiff on 27 October 2000. In my view, the prayer clause (bb) for seeking specific performance of the agreement dated 3rd June, 1999 is, thus, ex facie barred by law of limitation.
90. Madras High Court in the case of Ramanna Shetty and ors. vs. Tejappa Shetty and ors. (supra) has held that the suit to work out the rights declared under the partition deed can in no sense be described as a suit for specific performance of a contract. In my view, the principles laid down by the Madras High Court in the said Judgment would apply to the facts of this case. I am in respectful agreement with the view expressed by the Madras High Court. A suit for partition, cannot be mixed up with a suit for specific performance.
91. The Supreme Court in the case of T.L. Muddukrishana and another vs. Smt. Lalitha Ramchandra Rao , (supra) considered the facts where the Appellant had issued a notice calling upon the Respondent to comply with the conditions mentioned under the agreement. The Respondent issued a notice repudiating the contract, ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 45 nms-495.07 dt. 02-05-19.doc though the execution thereof was admitted. The Appellant filed a suit for mandatory injunction, directing the Respondent to comply with the requirements mentioned in the agreement. During the pendency of the suit, the Appellant filed an application for amending the plaint, seeking a specific performance of the contract. The said application was rejected by the Trial Court, which order was confirmed by the High Court. The Supreme Court held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction was filed and the specific performance was sought for by way of amendment. The cause of action is required to be stated initially in the plaint, but it was not pleaded.
92. The Supreme Court, accordingly, held that even by the date of filing of the application for amendment, the suit for specific performance was barred by limitation and, therefore, the High Court was right in refusing amendment to the plaint. In my view, the principles laid down by the Supreme Court, in the case of T.L. ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 46 nms-495.07 dt. 02-05-19.doc Muddukrishana and another vs. Smt. Lalitha Ramchandra Rao , (supra) squarely apply to the facts of this case. Though the Defendants had disputed the extent of entitlement of the Petitioner under the development agreement by the notice which was received by the Plaintiff on 27 October 2000, instead of filing a suit for specific performance, the Plaintiff chose to file the suit for partition and other reliefs and admittedly prayed for the specific performance only in the year 2006 which was beyond the period of limitation.
93. The Supreme Court in the case of K. Raheja Constructions Ltd. and another vs. Alliance Ministries and others (supra), has held that the Petitioners having expressly admitted that the Respondents refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accruing to the Respondent. A perusal of the plaint also indicates that it was the case of the Plaintiff itself that the extent of the entitlement of the Plaintiff in the suit property was denied by the Defendants from time to time. Inspite of such averments being made in the plaint, the Plaintiff did not pray for ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 47 nms-495.07 dt. 02-05-19.doc specific performance of the development agreement within three years from the date of accrual of cause of action. The principles laid down by the Supreme Court in the case of K. Raheja Constructions Ltd. and another vs. Alliance Ministries and others (supra) apply to the facts of this case. I am respectfully bound by the said Judgment.
94. The Supreme Court in the case of Tarlok Singh vs. Vijay Kumar Sabharwal (supra), has considered the facts where a suit simplicitor filed for injunction and thereafter an application for amendment, seeking specific performance was filed. The Supreme Court held that the suit for perpetual injunction converted into one for specific performance by order dated 25 August 1989, must be deemed to have been instituted on 25 August 1989 and thus was clearly barred by limitation. It is held that the suit for specific performance, in fact, was claimed by way of amendment on 12 September 1979 and it will operate only on the application being ordered. Since the amendment was ordered on 25 th August 1989, the crucial date would be the date on which the amendment was ordered by which date, admittedly, the suit was barred by limitation.
95. In my view, the limitation in this case for a prayer for specific performance would stop actually in the year 2006 i.e. the date on which the application for amendment of the plaint seeking ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 48 nms-495.07 dt. 02-05-19.doc insertion of the prayer for specific performance was made and an order allowing such chamber summons would not relate back to the date of filing of the suit for partition and other reliefs. The Judgment of the Supreme Court in the case of Tarlok Singh vs. Vijay Kumar Sabharwal (supra) would apply to the facts of this case. I am respectfully bound by the said Judgment.
96. The Supreme Court, in the case of Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and ors. (supra) has considered a similar situation and has held that refusal by the Respondent to acknowledge the right of the Appellant over the land in its public notice dated 3.2.1991 definitely furnishes the Appellant with a cause of action to file a suit for specific performance. If the Appellant had filed such a suit, it could in the said suit have questioned the action of the First Respondent as blowing hot and cold. But it has not filed such a suit within the period of limitation prescribed for filing such a suit. It is held that the Appellant had the cause of action to sue for specific performance in 1991, but he omitted to do so and having done so, he cannot be allowed to sue on that cause of action which he omitted to include when he filed his suit. It is held that the said appeal was hit by the provisions of Order 2, Rule 2 of the Civil Procedure Code. Though the Appellant had not subsequently filed a second suit so as ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 49 nms-495.07 dt. 02-05-19.doc to bring his case squarely within the bar of Order 2, Rule 2, but the broad principles of Order 2, Rule 2 which are also based on public policy, attracted in the facts of that case. The Supreme Court held that even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit and the same was allowed after 12 years of the filing of the suit, such an amendment, in the facts of the case, cannot relate back to the date of filing of the original plaint in view of the clear bar under Article 54 of the Limitation Act.
97. It is held that inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court. Though such amendment was allowed, such amendment would not relate back to the date of filing of the suit to cure the defect of limitation. In my view, the principles laid down by the Supreme Court in the said Judgment apply to the facts of this case and I am bound by the said Judgment.
98. Nagpur High Court in the case of Gaurishankar and ors. vs. Ibrahim Ali (supra), considered the Judgment in Subbaraya Pillai v. Venkata Perumal, AIR 1922 PC 345 in which it was held that a vendee whose suit for specific performance is barred by Article ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 50 nms-495.07 dt. 02-05-19.doc 113 cannot recover possession of the property sold because a suit for possession i.e. to enforce his right under the contract with reference to property is essentially one for specific performance of the contract.
99. Delhi High Court in the case of M/s. J.M. Construction Pvt. Ltd., vs. Smt. Krishna Sachdev & ors. (supra), has held that the Plaintiff had himself issued a notice in the newspaper, which showed that he was aware of intention of defendants No.1 to 9 to try to sell the suit property to any other buyer. The suit ought to have been filed by the Plaintiff for specific performance within the date of such knowledge of the Plaintiff, the time prescribed under Article 54 of the Schedule to the Limitation Act, 1963 commenced from the date of such knowledge. In my view, Mr. Madon, learned Senior Counsel for the Plaintiff has failed to distinguish several such Judgments relied upon by Mr. Saraf, learned Counsel for the Defendant No.2 to 4 which are clearly applicable to the facts of this case. In my view, prayer clause (bb) of the plaint is, thus, ex facie barred by law of limitation.
100. In so far as the submission of Mr. Madon, learned Senior Counsel for the Plaintiff that though the Plaintiff had led oral evidence on the issue of limitation, none of the Defendants had led oral evidence on the issue of limitation though had raised such a plea ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 51 nms-495.07 dt. 02-05-19.doc in the pleadings filed by them and thus the Defendants have failed to prove that any part of the plaint is barred by law of limitation is concerned, in my view, initial onus to prove that the suit was filed within the time prescribed under the provisions of the Limitation Act, 1963 was on the Plaintiff and only if the Plaintiff was able to discharge such onus, such onus would have been shifted upon the defendants. In this case, though the Plaintiff had examined a witness on the issue of limitation, the Plaintiff failed to discharge the initial onus cast on the Plaintiff to prove that the suit was within the period of limitation and thus, such onus was not shifted upon the Defendants. Be that as it may, in the cross examination of the witness examined by the Plaintiff, the said witness admitted that upon receipt of the notice disputing the extent of entitlement of the Plaintiff to the suit property from the Defendants No.2 to 4, the Defendants No.2 to 4 committed breach of the development agreement. The Plaintiff also in the plaint has averred that the repudiation of the entitlement of the Plaintiff in the suit property was disputed by the Defendants wrongly.
101. In so far as the prayer clause (cc) of the plaint, which is for an order and decree, in the alternate to the prayer for specific performance, for deposit of the balance amount is concerned, in my view, since the prayer clause (bb) is itself is barred by limitation, ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 52 nms-495.07 dt. 02-05-19.doc prayer clause (cc) which is in alternate to prayer clause (bb), having same date of cause of action, is also barred by Law of Limitation.
102. In so far as prayer clause (gg) of the plaint is concerned, by which the Plaintiff seeks a declaration that the purported Consent Terms dated 14.10.2008 and/or Consent Decree between Defendant No.1 on one hand, and Defendants No.2 to 4 on the other hand is invalid, void and not binding upon the Plaintiff is concerned, in my view, the Consent Terms challenged by way of amendment was for the period subsequent to the date of filing of the suit and, thus, the prayer cannot be considered as barred by limitation.
103. In so far as prayer clause (hh) of the plaint by which the Plaintiff seeks a declaration that the purported Deed of Conveyance dated 12.09.2008 allegedly executed by Defendants No.2, 4 and 5 in favour of Defendant No.1 as bad in law, invalid, and not binding upon the Plaintiff is concerned, in my view, since the date of conveyance given by the Plaintiff is executed subsequent to the date of filing of the suit, prayer clause (hh) cannot be considered as barred by law of limitation.
104. In so far as prayer clause (ii) by which the Plaintiff seeks an order and decree directing that the Consent Terms dated 14.10.2008 ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 53 nms-495.07 dt. 02-05-19.doc and the Conveyance Deed dated 12.09.2008 be delivered up and cancelled is concerned, in my view, since both the documents were executed after filing of the suit or during the pendency of the suit, this prayer also cannot be considered as barred by limitation.
105. In so far as prayer clause (jj) by which the plaintiff seeks an injunction against the Defendants from filing the alleged Deed of Conveyance dated 12.09.2008 and this Court taking any steps in furtherance thereto is concerned, since this document is also executed during the pendency of the suit, this prayer cannot be considered as barred by limitation.
106. In so far as prayer clause (b)(i) (a) by which the Plaintiff seeks a declaration that the alleged Deed of Confirmation dated 3.6.1999 is invalid, not binding upon the Plaintiff; by prayer clause
(b)(i)(b) the Plaintiff seeks a similar relief in respect of the alleged Power of Attorney dated 19.9.2003, are concerned, it is the case of the Plaintiff, the Plaintiff came to know about such alleged documents, viz. only Deed of Confirmation dated 3.6.1999 and the alleged Power of Attorney dated 19.9.2003 only when the Defendant No.1 filed an affidavit-in-reply on 24.1.2006, alleging that the Trust had executed a Deed of Confirmation dated 1 June 2002 and the Power of Attorney on 3.6.2002. The Plaintiff, thereafter, had filed a chamber ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 54 nms-495.07 dt. 02-05-19.doc summons on 8.2.2007, which was allowed by this Court on 12.9.2007.
107. A perusal of the averments made in paragraphs 6(v), 6(w) and 6(x) of the plaint indicates that the Plaintiff had referred to the draft Confirmation Deed. By letter dated 1.6.2002, the defendants No.2 to 4 had called upon the Plaintiff to sign the said Confirmation Deed. The said Confirmation Deed was registered on 3.5.2002. In my view, Dr. Saraf, learned Senior Counsel for the Defendants No.2 to 4 and Mr. Sen, learned Senior Counsel for Defendant No.1 are right in their submission that the Deed of Confirmation having been registered, the Plaintiff had notice in respect of the said Deed of Confirmation in view of Section 3 of the Transfer of Property Act.
108. Be that as it may, the Plaintiff ought to have made a proper inquiry about the execution of such confirmation deed, since the Plaintiff having knowledge about the draft confirmation deed, as indicated in the plaintiff itself. The Plaintiff does not dispute that Defendants No.2 to 4 had called upon the Plaintiff to sign the said Deed of Confirmation vide letter dated 1.6.2002. The Plaintiff also does not dispute that the said Deed was registered on 3.5.2002. In my view, if the Plaintiff had made proper inquiries about the execution of such deed of confirmation, the Plaintiff would have ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 55 nms-495.07 dt. 02-05-19.doc come to know about the date of execution of such Deed of Confirmation. The Plaintiff, thus, cannot seek extension of period of limitation by pleading ignorance of the execution of such deed of confirmation.
109. The Supreme Court in the case of Rajasthan Housing Board vs. New Pink City Nirman Sahkari Samiti Ltd. and another (supra), relied upon by Dr. Saraf, learned Counsel for the Defendants No.2 to 4 has held that constructive notice in legal fiction signifies that the individual person should know as a reasonable person would have even if they have no actual knowledge of it. Constructive notice means a man ought to have known a fact A person is said to have notice of a fact when he actually knows a fact but for willful abstention from inquiry or search which he ought to have made, or gross negligence he would have known it. Constructive notice is a notice inferred by law, as distinguished from actual or formal notice; that which is held by law to amount to notice. It is not in dispute that the deed of confirmation was registered on 3.5.2002. The Plaintiff, thus, cannot be allowed to urge that the knowledge of the Plaintiff about the said Deed of Confirmation was derived only upon the service of the Affidavit filed on 27.1.2006.
110. In so far as the Judgment of the Gujarat High Court in the ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 56 nms-495.07 dt. 02-05-19.doc case of Bahadurbhai Laljibhai Malhotra vs. Ambalal Joitaram and ors. (supra) relied upon by Mr. Madan, learned Senior Counsel for the Plaintiff is concerned, the said Judgment is clearly distinguishable in the facts of this case. In this case, not only the Confirmation Deed was registered, but the Plaintiff was called upon by the Defendants No.2 to 4 to execute the Deed of Confirmation as far back as in the year 2002 itself. The Judgment of the Gujarat High Court would, thus, not assist the case of the Plaintiff and is clearly distinguishable in the facts of this case. In my view, prayer clause (b)(i)(a) for declaration of the Deed of Confirmation dated 3.6.1999 as invalid and not binding upon the Plaintiff is, ex facie, barred by law of limitation.
111. A perusal of the cross examination of the witness and the answers, more particularly to questions No.20, 21, 25, 29 to 36, 38 to 40 and 43 would indicate that the Architect appointed by the Plaintiff was aware of the Deed of Confirmation and also the Power of Attorney. In so far as the knowledge of the Architect about the Deed of Confirmation and the Power of Attorney is concerned, and whether such knowledge of the Architect would amount to knowledge of the Plaintiff is concerned, I am not inclined to accept the submission made by the learned Senior Counsel for the Defendants. Prayer clause (b)(i)(b) in so far as the alleged Power of ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 57 nms-495.07 dt. 02-05-19.doc Attorney is concerned, thus, cannot be held as barred by limitation.
112. In so far as prayer clause (b)(i)(c) of the plaint by which the Plaintiff seeks a declaration that the alleged letter dated 21 st July, 2000 and the alleged resolution dated 28th May, 2003 passed by the said Trust are not binding upon the Plaintiff is concerned, the learned Senior Counsel for the Defendants could not demonstrate as to how the reliefs in respect of these two documents is barred by law limitation. Prayer clause b(i)(c) of the plaint thus cannot be held to be barred by law of limitation.
113. In so far as prayer clause (b)(ii) i.e. for appointment of Court Commissioner for the purpose of partitioning the rights under the Development Agreement dated 3.6.1999 is concerned, since this Court is of the view that prayer clause (b)(i) for seeking partition of the rights of the property is not barred by law of limitation, prayer clause (b)(ii) seeking appointment of a Court Commissioner for the purpose of partitioning the right under the Development Agreement dated 3.6.1999 is also not barred by law of limitation. However, the effect of this Court holding the prayer for specific performance made by the Plaintiff having been barred by law of limitation, the effect of such declaration would be considered at the hearing of suit in so far as other prayers which are not held as time barred by this Judgment are ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 58 nms-495.07 dt. 02-05-19.doc concerned.
114. In so far as prayer clause (b)(iii) is concerned, the view taken by this Court in case of prayer clauses (b) and (b)(ii) would apply to this prayer also and thus the same is not barred by law of limitation.
115. In so far as prayer clause (c) by which the Plaintiff seeks mandatory injunction directing Defendant No.1 to put the Plaintiff in joint possession with Defendant No.1 is concerned, since this prayer is sought within 12 years from the date of alleged dispossession of the property, the same is not barred by law of limitation.
116. Mr. Dwarkadas, learned Senior Counsel for the Defendant No.1 is right in his submission that two rights were created under the Development Agreement in favour of the Plaintiff. The Trust was owner of the land; whereas the Plaintiff and the Defendant No.1 were appointed as developers. The Plaintiff when applied for the prayer for partition, the Plaintiff ought to have involved defendants No. 2 to 4 also in the suit as main parties and not formal parties. In my view, there is no substance in this submission of the learned Senior Counsel for the Plaintiff that the Trust has not disputed the alleged 50% share ::: Uploaded on - 03/05/2019 ::: Downloaded on - 04/05/2019 00:47:48 ::: ppn 59 nms-495.07 dt. 02-05-19.doc of the Plaintiff in the suit property.
117. I, therefore, pass the following Order :
(i) Prayer clauses (bb), (cc), and (b)(i)(a) of the plaint are time-barred.
(ii) Prayer clauses (a), (aa), (gg), (hh), (ii), (jj), (b)(1), (b)(i)
(b), (b)(i)(c), (b)(i), (b)(ii), (b)(iii), and (c) of the plaint are not time-
barred.
R.D. DHANUKA, J.
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