Karnataka High Court
Maverick Property Investments vs M/S. Sattva Developers Private Limited on 6 June, 2025
Author: R Devdas
Bench: R Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2025
BEFORE
THE HON' BLE MR.JUSTICE R. DEVDAS
CIVIL REVISION PETITION NO. 472/2024
C/W
CIVIL REVISION PETITION NO. 468/2024
IN CRP NO.472/2024
BETWEEN
CORNERSTONE PROPERTIES PRIVATE LIMITED
COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956 AND
HAVING ITS REGISTERED OFFICE
AT NO. 583, 9TH MAIN ROAD, OFF CMH ROAD,
INDIRANAGAR, 1ST STAGE,
BENGALURU- 560 038
REP. BY ITS AUTHORISED SIGNATORY
MR. KIRAN POONACHA
...PETITIONER
(BY SRI. DHYAN CHINNAPA, SR. COUNSEL FOR
SRI. SUNDARA RAMAN M. V., ADVOCATE)
AND
M/S. SALARPURIA HI-RISE PRIVATE LIMITED
COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956 AND
HAVING ITS REGISTERED OFFICE
-2-
AT 4TH FLOOR, SALARPURIA WINDSOR,
NO. 3, ULSOOR ROAD, BENGALURU-560 042
REP. BY ITS AUTHORISED SIGNATORY
MR. ASHWIN SANCHETI
.......RESPONDENT
(BY SRI.K.G. RAGHAVAN & SRI. G.L. VISHWANATH.,
SR. COUNSELS FOR SRI. BADRI VISHAL., ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST
THE ORDER DATED 29.06.2024 PASSED ON IA NO.2 IN OS
NO.3130/2024 ON THE FILE OF XXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU., REJECTING THE IA NO.2 FILED
UNDER ORDER 7 RULE 11(a) AND (d) OF CPC., FOR REJECTION OF
PLAINT.
IN CRP NO.468/2024
BETWEEN
MAVERICK PROPERTY INVESTMENTS
PRIVATE LIMITED
COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
AND HAVING ITS REGISTERED OFFICE
AT NO. 583, 9TH MAIN ROAD, OFF CMH ROAD,
INDIRANAGAR, 1ST STAGE,
BENGALURU - 560 038.
REP. BY ITS AUTHORISED SIGNATORY,
MR KIRAN POONACHA.
...PETITIONER
(BY SRI. DHYAN CHINNAPA., SR. COUNSEL FOR
SRI. SUNDARA RAMAN M V., ADVOCATE)
AND
1. M/S. SATTVA DEVELOPERS PRIVATE LIMITED
COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
-3-
AND HAVING ITS REGISTERED OFFICE AT,
4TH FLOOR, SALARPURIA WINDSOR,
NO. 3, ULSOOR ROAD,
BENGALURU - 560 042.
REP. BY ITS AUTHORISED SIGNATORY,
MR ASHWIN SANCHETI.
2. M/S PARTH INFRASTRUCTURE LLP
BODY CORPORATE UNDER THE
LIMITED LIABILITY PARTNERSHIP ACT, 2008,
AND HAVING ITS OFFICE AT,
4TH FLOOR, SALARPURIA WINDSOR NO.3,
ULSOOR ROAD,
BENGALURU - 560 042.
REP. BY ITS AUTHORISED SIGNATORY,
MR. ASHWIN SANCHETI.
3. M/S. TATA CONSULTANCY SERVICES LIMITED
COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
AND HAVING ITS REGISTERED OFFICE
AT TCS HOUSE, 21 D.S. MARG,
FORT, MUMBAI - 400 001.
REP. BY ITS GENERAL MANAGER
MR. K.A. CHINAPPA
.......RESPONDENTS
(BY SRI.K.G. RAGHAVAN & SRI. G.L. VISHWANATH.,
SR. COUNSELS FOR SRI. BADRI VISHAL., ADVOCATE
FOR R1 & R2)
THIS CRP FILED UNDER SECTION 115 OF CPC, AGAINST THE
ORDER DATED 29.06.2024 PASSED ON I.A.NO.2 IN OS
NO.3136/2024 ON THE FILE OF THE XXII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, AT BANGALORE CITY (CCH-7) REJECTING
THE I.A.NO.2 FILED UNDER ORDER VII RULE 11 (d) OF CPC, FOR
REJECTION OF PLAINT.
-4-
THESE PETITIONS HAVING BEEN HEARD AND RESERVED ON
14.02.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS,
THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE R DEVDAS
CAV COMMON ORDER
(PER: HON'BLE MR JUSTICE R DEVDAS)
Although we are dealing with two separate Civil Revision
Petitions arising out of two separate suits in
O.S.Nos.3130/2024 and 3136/2024, nevertheless the two
petitioners are sister concerns/Companies who have business
transaction with two other respondent sister
concerns/companies viz., M/s.Salarpuria Hi-Rise Private
Limited and M/s.Sattva Developers Pvt. Ltd., and therefore,
the matters were clubbed, heard together and are being
disposed of by this common order.
2. For the sake of convenience, the parties shall be
referred to in terms of their ranking before the Trial Court.
3. O.S.No.3130/2024 was filed by M/s.Salarpuria Hi-Rise
Pvt. Ltd. against M/s.Corner Stone Properties Pvt. Ltd., for
-5-
recovery of Rs.37,15,86,284/- in respect of a transaction that
took place in the year 2010-11. Similarly, M/s.Sattva
Developers Pvt. Ltd., along with M/s.Parth Infrastructure filed
O.S.No.3136/2024 against M/s.Maverick Property Investments
Pvt. Ltd. and M/s.TATA Consultancy Services Ltd., for specific
performance of the Memorandum of Understanding (MoU)
dated 01.07.2011, while receiving balance sale consideration
of Rs.34,87,50,000/-. Alternative prayer was also made to
direct the first defendant to pay Rs.141,76,51,481/- as
damages towards the loss in appreciation of value of Schedule
'D' property and an additional prayer to direct the first
defendant to refund Rs.30,43,48,623/- along with interest at
the rate of 18% p.a. from 30.11.2011, etc. The contesting
defendants filed applications under Order VII Rule 11 of the
Code of Civil Procedure to reject the plaints, mainly on the
ground that the suit is hopelessly barred by limitation. Both
the applications having been dismissed, the contesting
defendants have filed these Civil Revision Petitions.
-6-
4. Learned Senior Counsel Sri Dhyan Chinnappa,
appearing for the defendants submitted that admittedly the
parties entered into a Memorandum of Understanding (MoU)
on 14.02.2011 to constitute a Special Purpose Vehicle (SPV),
for joint development of land totally measuring 29 acres 35
guntas. It is not disputed that the Director of the defendant-
Company had entered into a MoU dated 04.12.2010 with the
owners of the property and that he had paid Rs.1,65,00,000/-
as refundable deposit and Rs.95,00,000/- as non-refundable
deposit (totally Rs.2,60,00,000/-) to the owners. The
Director of the defendant-Company had agreed to pay a total
deposit of Rs.10,00,00,000/- to the owners. It is contended
by the plaintiff that it has paid Rs.5,30,00,000/- under the
MoU to enable the defendant to procure the suit schedule
property to further enable the parties to jointly develop the
same. Learned Senior Counsel, while pointing out to the MoU
dated 14.02.2011, submitted that it is clearly stated in
paragraph-VII (3) that by assigning the MoU or other
-7-
arrangements to the SPV, all business risks associated with
the MoU shall devolve fully on the SPV only.
5. Learned Senior Counsel would also submit that a
similar issue between the same parties i.e, M/s.Salarpuria Hi-
Rise Limited and Sri B.P.Kumar Babu arose for consideration
before this Court in CMP No.75/2020 where similar such MoU
was entered into between the parties on the same date i.e.,
04.02.2011 in respect of different set of lands. As in the
present case, there too a legal notice was got issued by the
plaintiff on 13.11.2019 calling upon the defendant to
specifically perform and complete all obligations under the
MoU, failing which the defendant was called upon to refund
the amount deposited by the plaintiff under the MoU, along
with interest. However, since an arbitration clause was
contained in the said MoU, the plaintiff herein had to approach
this Court by filing a Civil Miscellaneous Petition invoking
Section 11(6) of the Arbitration and Conciliation Act, 1996, for
appointment of an Arbitral Tribunal to adjudicate the disputes
-8-
arising out of MoU dated 14.02.2011. This Court has held that
the plaintiff-Company is guilty of waiting for an unreasonably
long time to initiate action against the defendant. It was
noticed that not a scrap of paper is available on record to
show that the parties had mutually agreed to extend the time
for completion of the contract. In view of the time fixed
therein i.e., four months to procure the lands and get the
scheduled lands converted from agricultural to non-agricultural
purposes, this Court held that after lapse of four months, no
efforts were made by the plaintiff-Company to seek repayment
of the advance amount. Accordingly, having come to the
conclusion that it is a clear case of 'deadwood', the CMP was
dismissed.
6. Learned Senior Counsel would submit that although it
is true that the MoU does not contain any specific timeline,
nevertheless, it has been contended in the plaint that the
defendant has played fraud on the plaintiff by giving evasive
reply that it would perform its part of the contract. Learned
-9-
Senior Counsel would submit that having regard to such
averments made in the plaint, Section 17 of the Limitation Act,
1963, would provide that in case the suit is based upon fraud
of the defendant, then the period of limitation shall not begin
to run until the plaintiff has discovered the fraud, with
reasonable diligence. If such is the contention, the plaintiff
cannot contend that for seven years after signing the MoU, the
defendant protracted performance of its part of the contract.
Article 54 of the Limitation Act, provides that the time would
begin to run, if no such date is fixed, when the plaintiff has
noticed that performance is refused. In this regard, attention
of this Court is drawn to the plaint averments where it is
contended that from the year 2012, the plaintiff made several
requisitions, but the defendant failed to provide the requisite
documentation for conducting due diligence in respect of the
schedule property. It is contended that even after repeated
requests, reminders and follow up, from the year 2012 to
2024, at every instance the defendant has pleaded for further
-10-
extension of time to furnish the requisite documentation that
were necessary to conduct the due diligence. It is therefore
clear from the plaint averments, that there is no pleading to
the effect that the defendant gave anything in writing to
extend the period for completion of the MoU. It is submitted
that the Hon'ble Supreme Court has clearly held that mere
exchange of letters or e-mails will not extend the time of
limitation.
7. It is further pointed out that the plaintiff got issued a
legal notice dated 18.12.2019 calling upon the defendant to
come forward to fulfill its obligation under the MoU. It is
stated in paragraph-22 that inspite of the legal notice being
issued, the defendant failed to adhere to the claims of the
plaintiff. For the sake of argument, it was contended that if
the time started ticking for the plaintiff after issuance of the
legal notice dated 18.12.2019, even then the suit should have
been filed on or before 17.12.2022. But the suit is filed on
25.05.2024, long after the period of limitation. The learned
-11-
Senior Counsel would therefore submit that even on a plain
reading of the plaint, it is clear that the suit is barred by
limitation.
8. However, it is stated in paragraph-33 of the plaint that
the suit is filed well within the period of limitation, however by
way of abundant caution, it is also stated that due to COVID-
19 and the orders passed by the Hon'ble Supreme Court on
23.03.2020, the period of limitation in all proceedings under
general or specific laws, whether condonable or not, with
effect from 15.03.2020, the time stands extended. In this
regard, having regard to the submissions made by the learned
Senior Counsel appearing for the plaintiff who had placed
reliance on Cognizance for extension of limitation, In RE
(2022) 3 SCC 117, learned Senior Counsel Sri Dhyan
Chinnappa has taken this Court through the following three
judgments:
i) Sagufa Ahmed and Others Vs. Upper
Assam Plywood Products Pvt. Ltd. &
Others - (2021) 2 SCC 317
-12-
ii) Arif Azim Co. Ltd. Vs. Aptech Ltd. - AIR
2024 SC 1347
iii) Delhi Development Authority Vs. Tejpal
and Others - (2024) (7) SCC 433
9. Learned Senior Counsel submitted that in Sagufa, in
paragraph-17, the directions issued In RE. Cognizance has
been clarified that what was extended by order of the Apex
Court was only the period of limitation and not the period upto
which delay can be condoned in exercise of discretion
conferred by the statute. In Arif Azim, it was clarified,
having regard to the provisions of the Limitation Act that while
extension of prescribed period in relation to an appeal or
certain applications has been envisaged under Section 5, the
exclusion of time has been provided in the provisions like
Sections 12 to 15 thereof. When a particular period is to be
excluded in relation to any suit or proceedings, essentially the
reason is that such a period is accepted by law to be the one
not referable to any indolence on the part of the litigant, but
being relatable to either the force of circumstances or other
-13-
requirements of law. Further in Delhi Development
Authority, it was also clarified that if the limitation period had
already expired before the pandemic, such cases could not
take shelter behind the general relief granted by the Apex
Court. The decision in Sagufa Ahmed, was respectfully
agreed with, in Delhi Development Authority. It is further
submitted that having regard to the undisputed facts, more
particularly, the legal notice issued by the plaintiff on
18.12.2019, three years period for filing the suit came to an
end on 17.12.2022. There was no impediment for the plaintiff
to have filed the suit after 28.02.2022 till 17.12.2022. The
directions issued by the Apex Court will not enable the plaintiff
to claim exclusion of the said period between 15.03.2020 to
28.02.2022.
O.S.3136/2024:
10. M/s Salapuria Hi - Rise Private Limited entered into
MoU with the first defendant on 09.04.2011 for joint
development of 104 acres and 02 guntas wherein the first
-14-
defendant undertook to acquire the said extent of land. It was
represented by the first defendant that it has secured right,
title and interest by way of agreements of sale, in respect of
60 acres of land. The first plaintiff, being the sister concern of
M/s Salapuria Hi - Rise Private Limited, thereafter approached
the 2nd defendant-M/s TATA Consultancy Services stating that
it intended to establish an IT/ITES Special Economic Zone
Project. A supplementary MoU was entered into between M/s
Salapuria Hi - Rise Private Limited and the 1st defendant on
01.07.2011 wherein the 1st defendant was permitted to sell
through the 1st plaintiff, an extent of 35 acres of land to the
2nd defendant, from out of 104 acres and 02 guntas. In
furtherance of supplementary MoU, the 1st defendant and the
2nd plaintiff entered into an MoU on 01.07.2011, under which
the 2nd plaintiff agreed to purchase 35 acres from the 1st
defendant for a sale consideration of Rs.4.5 Crores per acre
(approximately Rs.157.5 Crores for 35 Acres). The 1st
defendant agreed to make out a marketable title within a
-15-
period of 5 months from the date of MoU dated 01.07.2011.
Learned Senior Counsel submitted that the same condition for
completion of the terms of the contract within a period of 5
months is also found in the first MoU dated 09.04.2011. On
01.07.2011, the plaintiffs No.1 and 2 also entered into an MoU
between themselves, wherein the 1st plaintiff agreed to
purchase 35 Acres of land from the 2nd plaintiff, at the rate of
Rs.6.5 Crores per acre. In furtherance thereto, the 1st plaintiff
entered into an MoU with the 2nd defendant on 15.07.2011,
wherein the 2nd defendant agreed to purchase 35 Acres from
the 1st plaintiff at the rate of Rs.7.17 Crores per acre. Further,
the 2nd defendant entered into an agreement of sale on
02.11.2011 with both the plaintiffs.
11. Learned Senior Counsel submitted that the plaintiffs
have made a bald averment that the 1st defendant was unable
to procure the entire extent of land and it went on seeking
extension of time and it is contended that by the conduct of
the parties, it is clear that the time was continuously
-16-
extended. It is clear that there is no documentary evidence to
prove that the parties mutually agreed in writing to extend the
time for completion of the contract. Here again, the plaintiffs
claim that the parties were meeting continuously and have
exchanged letters and e-mails, to support their contention that
the parties mutually agreed to extend the time. It is also
stated in the plaint that the 2nd defendant initiated arbitral
proceedings against the 1st defendant and the plaintiffs. The
arbitral proceedings were held in A.C.No.23 of 2019 by
Hon'ble Justice Shri Jayant Patel. It is pointed out from
paragraph No.26 of the plaint that the 1st defendant opposed
the prayer for specific performance and also attempted to
make a counter claim against the plaintiffs herein. The
Arbitral Tribunal however held that such counter claim inter se
the respondents cannot be considered in the arbitral
proceedings initiated at the hands of the 2nd defendant herein.
12. Learned Senior Counsel would submit that this
averment in the plaint is sufficient to say that the plaintiffs
-17-
have admitted the resistance at the hands of the 1st defendant
to the claim of the plaintiffs. Nevertheless, no action was
initiated by the plaintiffs, within the period of limitation.
However, it is contended that the 1st plaintiff got issued a legal
notice dated 06.08.2019 and the 1st defendant gave a reply on
07.09.2019, refuting the claim of the 1st plaintiff. The 1st
plaintiff filed a Civil Miscellaneous Petition in CMP No.342/2019
seeking appointment of an Arbitrator. However, the said CMP
was rejected by this Court on 17.01.2020. The 2nd plaintiff
also got a legal notice issued on 08.08.2019 and the 1st
defendant gave a reply on 07.09.2019 refuting the claim of
the 2nd plaintiff. The 2nd plaintiff filed a Civil Miscellaneous
Petition in CMP No.381/2019 and the same was dismissed on
17.01.2020. In paragraph No.34 of the plaint, the plaintiffs
have admitted that the two Special Leave Petitions filed by the
plaintiffs were also rejected by the Hon'ble Supreme Court on
18.05.2020. However, it is contended by the plaintiffs that
the arbitral proceeding initiated by the 2nd defendant in
-18-
A.C.No.23 of 2019 was disposed of on 22.03.2021 while
directing the respondents therein to perform their part of the
contract in respect of 18 Acres and 39.5 Guntas of land (land
which was acquired by the 1st defendant). The claim for
specific performance of 8 Acres and 29.5 Guntas were rejected
by the Arbitral Tribunal on the ground that neither the 1st
defendant nor the plaintiffs had title in respect of the said
portion of the land.
13. It is also contended by the plaintiffs that the 1st
defendant had in the meanwhile entered into MoUs with other
entities and the 1st defendant had mortgaged 'C' schedule
property to a Bank. The plaintiffs filed an application under
Section 34 of the Arbitration and Conciliation Act, 1996,
raising a challenge to the arbitral award. It is also stated that
the 2nd defendant also preferred an application under Section
34 of the Act, aggrieved by the rejection of its claim to a
portion of the suit schedule property. Learned Senior Counsel
would therefore submit that it is clear from a plain reading of
-19-
the plaint that although cause of action arose for the plaintiffs
on a reply given by the 1st defendant, refuting the claim of the
plaintiffs on 07.09.2019, the suit is filed on 25.04.2024, long
after the period of limitation had expired. Similar averments
are made in the plaint seeking to take support from the
general directions issued by the Hon'ble Supreme Court
pursuant to the outbreak of COVID-19.
Arguments of learned Senior Counsel
Sri.K.G.Raghavan, on behalf of the plaintiffs:
14. It is contended that in O.S.No.3130/2024, the prayer
is for recovery of Rs.5.30 Crores along with interest. It is
contended that the plaint averments make it clear that the
plaintiff has alleged fraud against the defendant. Therefore, it
is contended that in terms of Section 17 of the Indian Contract
Act, 1872, which defines 'fraud' to mean and include the
enumerated acts therein on the part of a party to the contract,
which includes a promise made without any intention of
performing it, the cause of action would arise only when the
-20-
first defendant expressly denied the claim of the plaintiffs and
not before that. It is contended that a co-ordinate bench of
this Court in CRP No.449/2018 dated 18.06.2024 in the case
of Bhagyaraju Vs. Smt.Prema has held that the cause of
action for suit for recovery of money arises on the date of
refusal to perform obligation.
15. It is contended that similar submission would apply
even in respect of the other suit in O.S.No.3136/2024,
although it is a suit for specific performance of the contract
and a certain timeframe is fixed in the MoU therein. It is
contended that when this Court is considering an application
under Order VII Rule 11 of CPC, the issue of the suit being
barred by limitation, cannot be considered without permitting
the plaintiffs to lead evidence to substantiate its contention.
Learned Senior Counsel has placed reliance on Mr.Jagadish
Poonja Vs. The South Canara Hotel Complex, ILR 2016
KAR 31; Saleem Bhai and Others Vs. State of
Maharashtra and Others, (2003) 1 SCC 557, where it is
-21-
held that while considering such application, the averments
made in the plaint alone are germane. However, since
question of limitation is a mixed question of law and facts, the
plea of limitation cannot be decided as an abstract principle of
law divorced from facts. Plea of limitation can be considered
as a preliminary issue only when the Court is of the opinion
that the whole suit may be disposed of on the issue of law
alone. Nevertheless, under such circumstances, the plaint
cannot be rejected on the ground of limitation without
recording evidence.
16. As regards reliance placed by the learned Senior
Counsel for the first defendant on Delhi Development
Authority (supra) in the matter of general directions issued
by the Hon'ble Supreme Court, learned Senior Counsel
submitted that the observations of the Court must be read in
the context in which they appear. When judgments of Court
are conflicting, the Court should follow the one that lays down
the law correctly. In this regard, attention of this Court is
-22-
drawn to the facts obtained in Sagufa Ahmed, Arif Azim and
Delhi Development Authority (supra), to contend that the
Apex Court was considering issues arising out of an appellate
jurisdiction and not in respect of a suit. Reliance is sought to
be placed on judgments of the High Court of Delhi and the
High Court of Punjab and Haryana.
17. Heard Sri Dhyan Chinnappa, learned Senior Counsel
appearing for the petitioners-defendants and Sri
K.G.Raghavan, learned Senior Counsel appearing for the
respondents-plaintiffs and perused the petition papers.
18. What is glaring in the present cases is the fact that
as between the same parties this Court has already decided in
CMP No.75/2020 dated 21.08.2024 that having regard to the
material available on record, it is clear that the petitioner-
Company (plaintiffs herein) are guilty of waiting for an
unreasonably long time to initiate action against the
respondents. It was observed that no a scrap of paper is
available on record to show that the parties herein mutually
-23-
agreed to extend the time for completion of the contract. This
Court had noticed the decisions of the Apex Court that once a
party has asserted his claim and the other has either denied
such claim or failed to reply to it, the cause of action will arise
after such denial or failure, as the case may be. This Court
has noticed the three principles of law enunciated in the
judgments of the Apex Court regarding the manner in which
the point of time when the cause of action arose may be
determined. In terms of the said judgments of the Hon'ble
Supreme Court, it was important to find the "breaking point"
at which any reasonable party would have abandoned the
efforts at arriving at a settlement and contemplated referral of
the dispute to arbitration. Such breaking point would then
become the date on which the cause of action could be said to
have commenced.
19. Applying the same principles, this Court finds from
the plaint averments in both the suits, that a legal notice was
got issued by the plaintiffs to the first defendant on
-24-
06.08.2019, 08.08.2019 and 18.12.2019. In
O.S.No.3130/2024, when legal notice was issued on
18.12.2019, no reply was given by the first defendant. In
O.S.No.3136/2024, where legal notices were issued on
06.08.2019 and 08.08.2019, replies were given by the first
defendant on 07.09.2019, refuting the claims of the plaintiffs.
It would therefore be futile on the part of the plaintiffs in
O.S.No.3130/2024, to contend that since no reply was given
by the defendant, the time did not commence from the date of
the legal notice. As seen from the facts obtained in both the
suits, business transaction between the parties commenced in
the year 2011. Various MoUs were entered into between the
parties in respect of various immovable properties. It is also
clear that the defendant had not acquired absolute right, title
and interest in the lands which the parties were dealing with.
Although no specific timeframe is fixed in the MoU dated
14.02.2011 (in O.S.No.3130/2024), nevertheless, a legal
notice was got issued on 18.12.2019. Even if it is the
-25-
contention of the plaintiff that no reply was given by the
defendant, nevertheless, the conduct of the defendant, cannot
be held as favourable to the plaintiff. Having regard to the
large number of business transactions between the parties and
the fact that a reply was given by the first defendant on
07.09.2019, even before a legal notice was got issued in the
other case on 18.12.2019, the silence of the defendant in not
giving a reply, is a clear indication that the defendant was not
prepared to comply with the claim of the plaintiff. This aspect
of the matter, coupled with the fact that the first defendant
raised a counterclaim before the Arbitral Tribunal in the year
2019, is a clear indication that the first defendant refuted the
claim of the plaintiffs. Therefore, this Court is of the
considered opinion that the time started ticking for the
plaintiffs from 07.09.2019 when a written reply was given by
the first defendant, refuting the claim of the plaintiffs.
20. The next limb of argument regarding the general
directions issued by the Hon'ble Supreme Court on the
-26-
aftermath of COVID-19 and the benefit flowing out of the
orders passed in Cognizance for Extension of Limitation, In RE
(2022) 3 SCC 117, is to be considered. In Sagufa, the Apex
Court noticed that the lockdown was imposed only on
24.03.2020 and there was no impediment for the appellants to
file the appeal on or before 18.03.2020. It was observed that
to overcome this difficulty, the appellants relied upon the
order passed on 23.03.2020. In paragraph-17 it was held as
follows:
"17. But we do not think that the appellants can
take refuge under the above order in Cognizance
for Extension of Limitation, In re: (2020) 19 SCC
10. What was extended by the above order of this
Court was only "the period of limitation" and not
the period up to which delay can be condoned in
exercise of discretion conferred by the statute. The
above order passed by this Court was intended to
benefit vigilant litigants who were prevented due to
the pandemic and the lockdown, from initiating
proceedings within the period of limitation
prescribed by general or special law. It is needless
-27-
to point out that the law of limitation finds its root
in two Latin maxims, one of which is vigilantibus et
non dormientibus jura subveniunt which means
that the law will assist only those who are vigilant
about their rights and not those who sleep over
them."
21. It is noticeable that in the case of Sagufa the last
date for filing the appeal expired on 02.02.2020 or
18.03.2020, i.e., before the order was passed by the Apex
Court In RE Cognizance. The Apex Court refused to accept the
contention of the appellants therein and declined to give the
benefit of the orders passed by the Apex Court. In Arif Azim,
the last date for raising the claim after expiry of the period of
three years of limitation ended on 27.03.2021. While
analyzing the effect of the orders passed In RE Cognizance on
23.03.2020, it was held in paragraphs-84, 85 and 87 as
follows:
"84. Thus, in ordinary circumstances, the limitation
period available to the petitioner for raising a claim
-28-
would have come to an end after an expiry of three
years, that is, on 27-3-2021. However, in March
2020, the entire world was taken under the grip of
the deadly COVID-19 Pandemic bringing everyday life
and commercial activity to a complete halt across the
globe. Taking cognizance of this unfortunate turn of
events, this Court vide order dated 23-3-2020
passed in Suo Motu Civil Writ Petition No.03/2020
directed the period commencing from 15-3-2020
to be excluded for the purposes of computation of
limitation. The said extension of limitation was
extended from time to time by this Court in view of
the continuing pandemic. As a result, the period
from 15-3-2020 to 28-2-2022 was finally determined
to be excluded for the computation of limitation. It
was provided that the balance period of limitation as
available on 15-3-2020 would become available from
01-03-2022.
85. The operative part of the order dated 10-01-2022
is extracted hereinbelow :
"5. Taking into consideration the arguments
advanced by the learned counsel and the impact
-29-
of the surge of the virus on public health and
adversities faced by litigants in the prevailing
conditions, we deem it appropriate to dispose of
MA No. 21 of 2022 with the following directions:
5.1. The order dated 23-3-2020 is restored and in
continuation of the subsequent orders dated
08-03-2021, 27-04-2021 and 23-09-2021, it
is directed that the period from 15-3-2020 till
28-2-2022 shall stand excluded for the
purposes of limitation as may be prescribed
under any general or special laws in respect of
all judicial or quasi-judicial proceedings.
5.2. Consequently, the balance period of limitation
remaining as on 3-10-2021, if any, shall
become available with effect from 1-3-2022.
5.3. In cases where the limitation would have
expired during the period between 15-3-2020
till 28-2-2022, notwithstanding the actual
balance period of limitation remaining, all
persons shall have a limitation period of 90
days from 1-3-2022. In the event the actual
balance period of limitation remaining, with
effect from 1-3-2022 is greater than 90 days,
that longer period shall apply.
-30-
5.4. It is further clarified that the period from
15-3-2020 till 28-2-2022 shall also stand
excluded in computing the periods prescribed
under Sections 23(4) and 29-A of the
Arbitration and Conciliation Act, 1996, Section
12-A of the Commercial Courts Act, 2015 and
provisos (b) and (c) of Section 138 of the
Negotiable Instruments Act, 1881 and any
other laws, which prescribe period(s) of
limitation for instituting proceedings, outer
limits (within which the court or tribunal can
condone delay) and termination of
proceedings."
87. The effect of the abovereferred order of this
Court in the facts of the present case is that the
balance limitation left on 15-3-2020 would become
available w.e.f. 1-3-2022. The balance period of
limitation remaining on 15-3-2020 can be
calculated by computing the number of days
between 15-3-2020 and 27-3-2021, which is the
day when the limitation period would have come to
an end under ordinary circumstances. The balance
period thus comes to 1 year 13 days. This period of
-31-
1 year 13 days becomes available to the petitioner
from 1-3-2022, thereby meaning that the limitation
period available to the petitioner for invoking
arbitration proceedings would have come to an end
on 13-3-2023."
22. However, in Delhi Development Authority in
paragraph-60, the Apex Court further clarified the position,
while agreeing with the view taken in Sagufa, as follows:
"60. Sagufa Ahmed (supra) construed that the orders
passed In Re: Cognizance for Extension of Limitation
(supra) were intended to benefit vigilant litigants who
were prevented due to the pandemic and the
lockdown, from initiating proceedings within the
period of limitation prescribed by general or special
law. We respectfully agree with the view taken in
Sagufa Ahmed (supra). Consequently, the benefit In
Re:Cognizance for Extension of Limitation (supra) can
be availed by the Appellants only in a case where the
period of limitation expired between 15.03.2020 and
28.02.2022."
-32-
23. Having regard to the law laid down by the Apex
Court, it is clear that the benefit flowing out of the orders
passed In RE Cognizance, cannot be availed by the plaintiffs.
As rightly submitted by the learned Senior Counsel appearing
for the defendants, cause of action arose in both the suits on
07.09.2019 and 18.12.2019. Three years being the period of
limitation for filing the suits, the same would end on
06.09.2022 and 17.12.2022. However, the suits are filed on
25.04.2024, long after the period of limitation. The contention
of the plaintiffs that the period between 15.03.2020 to
28.02.2022 should be excluded while computing the period of
limitation, cannot be accepted and is accordingly rejected.
24. Having regard to the facts narrated hereinabove, it is
clear that from the averments made in the plaint, the issue
regarding limitation can be easily decided without waiting for
evidence to be recorded. The Apex Court in Shri Mukund
Bhavan Trust and others Vs. Shrimant Chhatrapati
Udayan Raje Prathapsinh Maharaj Bhonsle and Another
-33-
- (2024) SCC OnLine SC 3844, has held that though it is a
settled position of law that limitation is a mixed question of
fact and law and the question of rejecting the plaint on that
score has to be decided after weighing the evidence on record,
nevertheless in such cases, where it is glaring from the plaint
averments that the suit is hopelessly barred by limitation, the
court should not hesitate to reject the plaint at the threshold.
25. Consequently, this Court proceeds to pass the
following:
ORDER
i) Both the Civil Revision Petitions are allowed.
ii) The plaints in both the suits i.e., O.S.Nos.3130/2024 and 3136/2024 on the file of XXII Additional City Civil and Sessions Judge, Bengaluru, stand rejected.
Ordered accordingly.
Sd/-
(R DEVDAS) JUDGE JT/DL CT: JL