Karnataka High Court
Sri. G Ramachandiran vs Smt. R Mallikamma on 28 October, 2022
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 46677 OF 2017 (GM-CPC)
BETWEEN:
SRI. G RAMACHANDIRAN
S/O. GOVINDASHETTY,
AGED ABOUT 58 YEARS
R/AT 145/109, P H ROAD,
VELLAPPAN CHAVADI,
CHENNAI 600077.
TAMIL NADU STATE
SINCE DEAD BY HIS LR'S
1(A) SRI. R.SHIVA KUMAR
S/O. LATE G.RAMACHANDIRAN
AGED ABOUT 48 YEARS
1(B) SRI. R.SWAMI KUMAR
S/O. LATE G.RAMACHANDIRAN
AGED ABOUT 43 YEARS
BOTH ARE RESIDING AT
NO.145/109, P.H.ROAD
VELLAPPAN CHAVADI, CHENNAI
TAMIL NADU - 600 077
...PETITIONER
(BY SRI. M SREENIVASA.,ADVOCATE)
AND:
1. SMT. R MALLIKAMMA
W/O. LATE. N. RANGASWAMY,
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AGED ABOUT 60 YEARS
2. SRI. R BHASKAR
S/O. LATE. N. RANGASWAMY,
AGED ABOUT 39 YEARS
BOTH ARE R/AT NO. 6/178,
DR. AMBEDKAR ROAD,
KOLLEGAL TOWN,
CHAMARAJANAGAR DISTRICT,
571 313
...RESPONDENTS
(BY SRI. SKANDA R.K. RAO, ADVOCATE FOR
SRI. T.N.RAMESH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE ENTIRE RECORDS FROM THE TRIAL COURT WHICH
ULTIMATELY RESULTED IN PASSING THE ORDER ANNEX-
A DATED 30.06.2017 PASSED ON I.A.I IN O.S.F.R.NO.
8/2017 BY THE COURT OF THE SR. CIVIL JUDGE AND
JMFC, AT KOLLEGAL; QUASH THE ORDER ANNEX-A
DATED 30.06.2017 PASSED ON I.A.I IN O.S.F.R.NO.
8/2017 BY THE COURT OF THE SR. CIVIL JUDGE AND
JMFC, AT KOLLEGAL
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
The original suit in O.S.F.R. No.8/2017 on the file of the Senior Civil Judge and JMFC, Kollegal (for short, 'the civil Court') is for recovery of Rs.68,10,000/- along with future interest. The civil Court has dismissed this suit by the impugned order dated 30.06.2017 at the threshold i.e., even before issuance of summons to the defendants - respondents. The civil Court, after an elaborate reference to the petitioner's case, which is based on agreement of sale dated 26.04.2013 for sale of the subject property1, has dismissed the suit rejecting the petitioner's application under Section 5 of the Limitation Act 1963 (for short, 'the Act 1963') holding that the suit is barred by limitation. The petitioner, the original plaintiff is no more and is now represented by his sons. The parties, for reasons of convenience, are referred to as they are arrayed before the civil Court.
2. The plaintiff has filed this contending that he has executed the agreement of sale dated 26.04.2013 agreeing to 1 Immovable property in No.6/178, Dr. Ambedkar road, Kollegal Town -4- purchase the subject property from the defendants for a total consideration of Rs.2,35,00,000/- and he has received a sum of Rs.50,00,000/- as advance, but he has joined this agreement on the specific understanding that the license to operate the petrol retail outlet in subject property would also be transferred in his favour. The defendants, without submitting the documents to the Oil Company for transfer of the license though he has signed the necessary documents and has handed over, have caused legal notice dated 25.11.2013 (Annexure-D) for execution of the sale deed. He has responded by his reply notice dated 16.12.2013 calling upon the defendants to adhere to the terms agreed for transfer of the license and to act according to the terms of the agreement, or return the amount paid by him with a further sum as an additional amount.
3. The plaintiff, insofar as the cause of action for the suit, has pleaded that the cause which began with the execution of the agreement dated 26.04.2013 has continued even beyond 04.01.2017 with the exchange of later notices. The plaintiff has also filed an application under Section 5 of the Act 1963 contending that the cause for the suit has -5- continued beyond 04.01.2017 but in the event the civil Court is to opine that the suit is belated, the delay in filing the suit must be condoned because he can demonstrate that he was suffering from ill-health and confined to bed.
4. The civil Court in dismissing the suit as also the application under Section of the Act 1963 has expressed its opinion on the question of limitation [even before the issuance of suit summons to the defendants]. The civil Court has opined that:
[a] the sale agreement contemplates that the transaction must be completed within three [3] months from the date of its execution. The suit is filed on 17.02.2017 after the expiry of 3 years and 6 months 21 days from the date contemplated for completion.
[b] the defendants have issued legal notice dated 25.11.2013 calling upon the plaintiff to obtain execution of the sale deed for the subject property upon receiving the balance sale consideration on any day before 16.12.2013, and the plaintiff has issued reply notice dated -6- 16.12.2013 notifying the defendants that if they cannot get the license transferred in his name, they must return the amount of Rs.50,00,000/- (as acknowledged under the sale agreement) along with an additional sum of Rs.50,00,000/- within 10 days. Therefore, the cause of action could also be reckoned from the expiry of the said ten days.
5. The civil Court has concluded that the limitation of three [3] years must be reckoned under the residual article under Article 113 of the Act 1963. The suit would be barred by limitation if commencement of the limitation for the suit is reckoned from the date of expiry of the period contemplated for the completion of the transaction under the sale agreement dated 26.04.2013, or from the date of expiry of the period mentioned by the plaintiff in his first reply notice for return of the advance of Rs.50,00,000/- with an additional like sum.
6. The civil Court, adverting to the exchange of notices on 19.12.2016 and 04.01.2017, has also opined that the plaintiff, who has not filed the suit for recovery of -7- Rs.50,00,000/- paid as advance within the period of limitation [from the date notified by the respondents for the execution of the registration of the sale deed or from the date of expiry of the period allowed by him for return of the amounts as aforesaid], has caused the legal notice dated 19.12.2016 after the expiry of three [3] years to save limitation. The limitation once commenced cannot be stopped, and the suit which is filed after the expiry of 3 years and 6 months 21 days from the date contemplated for completion of the transaction and even beyond three [3] months from 16.12.2013, is time barred. Insofar the plaintiff's application for condonation of delay under Section 5 of the Act 1963, the civil Court has opined that the provisions of Section 5 of the Act 1963 cannot apply to a suit.
7. Sri. M.Sreenivasa, the learned counsel for the plaintiff2, submits that the question of limitation is a mixed question of fact in law and it is much more so in the present case where, even according to the defendants, the time stipulated under the sale agreement for completion of sale 2 The legal heirs of the plaintiff -8- transaction is modified and extended to 16.12.2013. The civil Court has failed to consider the plaintiff's specific case that the agreement is executed to facilitate a transaction including the transfer of license by M/s. Hindustan Petroleum Corporation Limited (HPCL) to operate a retail outlet and the contents of the subsequent exchange of notices.
8. Sri. M.Sreenivasa also argues that plaintiff cannot be penalized for wrong advise that they have received from their counsel in filing the application for condonation of delay under Section 5 of the Limitation Act, 1963 when they can demonstrate that the suit cannot be dismissed ex facie as barred by limitation. He canvasses, relying upon the decision of the Hon'ble Supreme Court in Miss Santosh Mehta Vs. Om Prakash and Others3, that the application under Section 5 of the Act 1963 is an ill-advised recourse and the plaintiff cannot be penalized for the same.
9. Sri. T.N.Ramesh, the learned counsel for the defendants, on the other hand, supports the impugned order 3 AIR 1980 SC 1664 -9- relying upon the decision of the Hon'ble Supreme Court in F. Liansanga Vs. Union of India4. He submits that this decision is an authority for the proposition that the provisions of Section 5 of the Act 1963 cannot be invoked to condone the delay in filing a suit which is time barred. He relies upon the circumstances enumerated by the civil Court to contend that the suit, in either circumstance i.e., if the time is reckoned from the expiry of period agreed for completion of the transaction or on the expiry of the period mentioned by the plaintiff for repayment of the amount paid under the agreement, is ex-facie barred by limitation. He also argues that the petitioner, who is categorical even in the plaint that the suit is beyond the limitation period and therefore the delay must be condoned, cannot gainsay that the suit is ex-facie barred.
10. It is trite that where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, the question of facts must be enquired itnto before it is concluded that the Claim is time barred. The Hon'ble 4 LAWS (SC)-2022-3-120
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Supreme Court in Narne Rama Murthy v. Ravula Somasundaram5 has observed thus:
"When limitation is a pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course, it is the duty of the Court to decide limitation at the outset even in the absence of a plea. However, in cases where the question of limitation is a mixed question of fact and law and the Suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved.
11. In the present case, the question whether the suit claim is time barred must necessarily be considered not just in the two circumstances referred to by the civil Court but also other circumstances such as:
• that in the sale agreement dated 26.04.2013 the parties have incorporated in writing certain assurance regarding HP Licence6, and the plaintiff's case is that the transfer of licence of
5 (2005) 6 SCC 614 6 It is agreed between parties that all the expenses towards HPCL dealership agreement transfer shall be borne by the seller only
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the petrol retail outlet is part of the transaction under the agreement;
• that though the sale agreement dated 26.04.2013 contemplates 3 [three] months for completition of the transaction, the defendants have issued legal notice dated 25.11.2013 informing the plaintiff that he must execute and register the sale deed on 16.12.2013; • that the plaintiff has caused reply notice stating that they that if the respondents cannot get the license for the petrol retail outlet transferred in his name, they must return the amount of Rs.50,00,000/- (as acknowledged under the sale agreement) along with an additional sum of Rs.50,00,000/- within 10 days;
• that there is no response until the later exchange of notices, and in the interregnum the defendants have executed sale deed for the subject property in their favour.
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12. These circumstances present a flux, and civil Court, in view these circumstances, could not have peremptorily opined that the suit is barred by limitation without even opportunity to the parties to complete their pleadings. There cannot be quarrel with the proposition that the limitation once starts does not stop7 and section 5 of the Limitation Act, 1963 would not apply. However, as canvassed by Sri M. Sreenivasa, it is equally settled that a party cannot be penalized for what perhaps is an overzealous approach by a counsel. The averments in the plaint based on Section 5 of Limitation Act will be inconsequential if it is shown that the suit is not otherwise barred by limitation. For the aforesaid reasons, this Court is of the considered view the civil Court's impugned order cannot be sustained. Hence, the following:
ORDER The petition is allowed, and the impugned order dated 30.06.2017 is quashed. The suit in O.S.F.R.No.8/2017 is restored to the file of the Senior Civil Judge and JMFC, Kollegal for decision 7 Section 9 of the Limitation Act, 1963
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on merits leaving open all questions for consideration in accordance with law. The parties shall appear before the said Court without further hearing on 12.12.2022.
The registry is directed the trial Court records forthwith.
Sd/-
JUDGE RB