Calcutta High Court
Sanat Choudhuri vs The Estate Of Dr. Narayana Krishna ... on 6 April, 2017
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.1305 of 2015
With
CS No.309 of 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SANAT CHOUDHURI
VERSUS
THE ESTATE OF DR. NARAYANA KRISHNA ACHARI & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 6th April, 2017.
Appearance:
Mr. Abhrajit Mitra Sr. Adv.
Mr. Satadeep Bhattacharya, Adv.
Ms. Anamika Pandey, Adv.
Ms. Amrita Pandey, Adv.
Ms. S. Sharma, Adv.
Mr. K.R. Thakkar, Adv.
Mr. Chayan Gupta, Adv.
The Court: The defendant No.2 is the applicant. This is an application for rejection of the plaint on the ground that the suit is ex facie barred by laws of limitation and also barred by law.
The plaintiff has filed a suit on 26th August, 2013 for a declaration that the Agreement for Sale dated 2nd February, 2008 executed between the plaintiff and the Late Dr. N.K. Achari is valid and subsisting. The plaintiff has also prayed for a decree for specific performance of the Agreement for Sale and other consequential reliefs.2
Shorn of details, the facts narrated in the plaint are:
Dr. N.K. Achari (hereinafter referred to as the "deceased") was a Neurosurgeon. The defendant No.2 is the nephew of the deceased. The plaintiff was engaged in the development of real estate. The deceased requested the plaintiff to arrange accommodation for him in Calcutta. Initially rented accommodation was arranged for the deceased and, thereafter, a flat being No.3B on the 3rd Floor of the building at 8B, Wood Street, Calcutta - 700 016 (hereinafter referred to as the "said flat") which the plaintiff initially negotiated and thought of acquiring for himself from Oxide India Limited was ultimately sold in favour of the deceased on the terms negotiated by the plaintiff with Oxide India Limited with a promise that the plaintiff, in any event, ever intended to sell the said flat would give the first offer to the plaintiff to purchase the said flat. The plaintiff due to long acquaintance with the deceased had agreed to sale on such terms and had negotiated and had facilitated the plaintiff to acquire the said flat on the terms negotiated by the plaintiff.
In or about March, 2007, the deceased entered into an agreement with the plaintiff to sell and transfer and the plaintiff acquired the said flat at and for a total consideration of Rs.30,00,000/-. However, the deceased would be entitled to reside at the said flat along with the plaintiff's family during his visits to Calcutta throughout his lifetime. Since the plaintiff was in America, it was agreed that the deceased would execute conveyance of the said flat in favour of the plaintiff on his return to India. The plaintiff in part- 3 performance thereafter had paid a sum of Rs.15,000/- and an agreement for sale was recorded in a letter dated 8th March, 2007.
On 2nd February, 2008, a formal agreement for sale was entered into. The plaintiff in part-performance of the said agreement was put to possession on 2nd February, 2008. The deceased died on 17th April, 2008. Prior to his death, an envelope was handed over to the plaintiff with instructions to hand over the same to the defendant No.2 up to his death. It later transpired that the said envelope was said to contain a Will in which the defendant No.2 was named as an Executor of the estate of the deceased. Accordingly, the defendant No.2 was requested by the plaintiff to execute the deed of conveyance in favour of the plaintiff. However, in the evening of 24th August, 2010, the defendant No.2 with policemen arrived at the said flat and tried to evict the plaintiff by force unauthorizedly and illegally. The plaintiff immediately contacted to an advocate, Mr. S.K. Ghosh who advised to lodge a complaint before the Consumer Disputes Redressal Commission, West Bengal and, accordingly, on 29th September, 2010, a complaint was lodged and the same was numbered as S.C./C 70 of 2010 praying for the following reliefs:-
(a) to execute and register the deed of conveyance thereby transferring, conveying and selling the suit flat in favour of your petitioner upon receipt of the balance consideration money of Rs.29,85,000/- from your petitioner;4
(b) to pay compensation of Rs.5,00,000/- to your petitioner for causing unnecessary harassments and delay in completing the transaction since 17th April, 2008;
(c) to pay cost of litigation of Rs.25,000/-;
(d) injunction;
(e) and allow any other relief as your petitioner may be entitled to in law and in enquiry;
On 2nd March, 2011, the plaintiff received a copy of the petition being G.A. No.641 of 2011 filed by the defendant No.2 in connection with C.S. No.39 of 2011 in which for the first time, the defendant No.2 disputed an authenticity of the agreement for sale dated 2nd February, 2008. It further transpired that on 3rd August, 2010, a limited Letter of Administration of the Estate of the deceased was granted to Suprakash Sen as the Constituted Attorney of the defendant No.2. It further transpired that Suprakash Sen had purportedly executed a deed of assent in favour of the defendant No.2 on August 18, 2011, the plaintiff's advocate called upon the advocate-on- record of the defendant No.2 to provide particulars and a copy of the deed of assent in respect of the said flat purportedly granted and registered by Suprakash Sen in favour of the defendant No.2.
The defendant No.2 has fraudulently obtained probate of the Will dated 4th February, 2008 from Superior Court of the State of Washington Benton Country by suppressing the existence of the codicil dated 5th March, 2008 and by making other false and untrue representations. The execution of the deed of assent of the said flat in favour of the defendant No.2 is in 5 breach of the agreement of sale dated 2nd February, 2008 and the codicil dated 5th March, 2008. The plaintiff subsequently has received legal advice that the complaint case being No.70 of 2010 filed by him and pending before the Consumer Disputes Redressal Commission is not maintainable as the said Commission does not have the jurisdiction to entertain the same. The said complaint was dismissed for default on September, 2012. The suit was instituted on 26th August, 2013 in which following reliefs are claimed:-
a) Declaration that the Agreement for Sale dated 2nd February, 2008 executed between the plaintiff and Late Dr. N.K. Achari is valid and subsisting and binding on the defendants;
b) Decree for specific performance of the Agreement for Sale dated 2nd February, 2008 in favour of the plaintiff by directing the defendants to execute and register the conveyance in favour of the plaintiff and/or his nominee or nominees and to take all necessary steps in that regard failing which the Registrar of this Hon'ble Court be directed to execute and register the conveyance in favour of the plaintiff or his nominee/s;
c) Permanent injunction do issue restraining the defendants from in any way dealing with disposing off, transferring and/or alienating in any manner whatsoever the said flat being No.3B, 3rd Floor, 8B, Wood Street, Kolkata - 700 016 to any person other than the plaintiff or his nominee or nominees in terms of the said agreement;6
d) The orders dated 3rd August, 2010 and 3rd October, 2012 passed in PLA No.23 of 2010 be recalled and the grant of Letters of Administration to the Estate of Dr. Narayana Krishna Achari to the defendant No.2 be revoked;
e) Delivery up and cancellation of the purported deed of assent in respect of flat no.3B executed and registered by Suprakash Sen in favour of the defendant no.2 on the same being adjudged null and void;
f) Receiver;
g) Injunction;
h) Costs;
i) Further or other reliefs.
Mr. Abhrajit Mitra, learned Senior Counsel appearing on behalf of the applicant/defendant submits that in Paragraph 32 of the plaint, the plaintiff in order to get over limitation has stated that the time spent by him in prosecuting Case No.70 of 2010 before the Consumer Disputes Redressal Commission between September 29, 2010 and September, 2012 be excluded for the purpose of computing the period of limitation which is impermissible as Section 14 of the Limitation Act, 1963 is only applicable to Courts and not only to Consumer Disputes Redressal Forum.
A Division Bench judgment of this Court in the Indian Publishers, Ld. vs. Samuel Charles Aldrige reported at 12 CWN 473 and a Single Bench decision in Inderdeo Prosad Rai Vs. Deonarayan Mahton reported 7 at AIR 1946 Pat 301 are relied upon to show that the plaintiff would be required to establish in no uncertain term that the plaintiff has prosecuted with due diligence before the Consumer Forum as the law requires that a plaintiff cannot take advantage of Section 14 of the Limitation Act when it is clear that owing to his own negligence or default the suit cannot be tried on merits.
The learned Senior Counsel has submitted that the plaintiff has virtually abandoned its case before the Consumer Forum and the said complaint was dismissed for default and not on merits. In the event, the said matter is restored and there is a finding by the Consumer Forum that the said Forum is unable to grant any relief to the plaintiff and a civil suit of proper Forum, the plaintiff perhaps could have taken the benefit of Section
14. A Division Bench Judgment of this Court in Mandira Mookerjee Vs. District Consumer Disputes Redressal Forum and Ors. reported at AIR 2005 Cal 108 Paragraph 7 has been relied upon to show that the complaint case before the Consumer Forum is maintainable and, accordingly, the averment made in Paragraph 32 of the plaint claiming exclusion of time spent before Consumer Disputes Redressal Commission cannot be considered. In any event, the plaintiff has filed a suit for specific performance beyond the period of limitation.
The learned Senior Counsel has referred to the complaint filed before the consumer disputes forum and submits that in paragraph 25 of the said complaint the plaintiff has categorically stated that the cause of action for specific performance arose on 21st August, 2008 when the petitioner 8 requested Dr. Amrit Narayan Achari to execute and register the deed of conveyance in favour of the petitioner in terms of the agreement for sale dated 2nd February, 2008, in view of the demise of Dr. Narayana Krishna Achari on 15th May, 2008. It is also submitted that when the deceased was in the intensive care unit of the Belle Vue, it is well neigh impossible for the deceased to execute any codicil to the Will on 5th March, 2008 and the said document is ex facie and a fabricated document. The suit is barred by limitation and accordingly liable to be dismissed. (Fatehji & Company & Anr. Vs. L.M. Nagpal & Ors. reported at AIR 2015 SC 2301: 2015 (8) SCC 390) The Division Bench judgment of this Court in Kailash Chandra Vs. Nanda Kumar reported at AIR 1944 Cal 385 Paragraph 10 was relied upon to show that in so far as Prayers (d) and (e) are concerned, no suit is maintainable as a judgment of a probate court is in nature of a judgment in rem and it binds all the world. The remedy, if any, is only to file an application for revocation of a grant of probate under Section 263 of the Succession Act and not to file a civil suit. A Single Bench decision of this Court in Rai Br. Pannalal & Ors. VS. Lala Hansraj Gupta & Ors. reported at AIR 1940 Cal 236 was relied upon for the self-same proposition.
This Court while considering the objections raised by the defendants has brought to notice of the learned Counsels a fairly recent decision of the Hon'ble Supreme Court in Andhra Pradesh Power Coordination Committee & Ors. VS. Lanco Kondapalli Power Limited & Ors. reported 9 at (2016) 3 SCC 468 where Section 14 of the Limitation Act, 1963 was succinctly explained. In the said decision it was held that the principles underlying under Section 14 of the Limitation Act will be applicable if any matters filed before a Quasi-judicial Tribunal. The learned Counsel on consideration of the said decision has conceded that the objection raised with regard to the applicability of Section 14 vis-a-vis the Consumer Disputes Redressal Commission would stand withdrawn and such objection was not pressed.
In view thereof, the plaintiff did not raise any further objection on this issue.
However, the other objections have been dealt with by Mr. K.R. Thakkar, Advocate representing the plaintiff in this proceeding. It is submitted by Mr. Thakkar that since the Consumer Forum cannot grant any reliefs as claimed in the suit, it matters little if the complaint case was dismissed for default or otherwise.
It is submitted that the ratio of Mandira Mookherjee (supra) would not apply since in the suit the plaintiff is not seeking enforcement of an agreement between the promoter developer and a prospective purchaser. There is no deficiency of service which requires to be gone into and adjudicated by the Consumer Forum. There is no deficiency as such. The plaintiff is also not a consumer. Since essential elements to become a consumer within the scope of the said Act are absent, the Consumer Forum would not have any jurisdiction to hear the complaint case. The plaintiff, 10 accordingly, was advised to file the suit. It is submitted that the dispute is essentially a civil dispute and has to be tried by the Civil Court.
It is submitted that the suit was filed within the period of limitation of three years when the right to sue accrued. It is submitted that the cause of action, in fact, arose after 2nd March, 2011 when for the first time it came to the knowledge of the plaintiff that the defendant No.2 disputed the authenticity of the Agreement for Sale dated 2nd February, 2008. Due to wrong advice, a wrong forum was chosen for redressal of the grievances by filing a complaint on 29th September, 2010. However, the same was dismissed on September, 2012. Since the proceeding in the first place could not have been initiated before the Commission on 29th September, 2010 and was pursued wrongly, the plaintiff is entitled to the benefit of the time spent therein.
It is submitted that the plaintiff is merely an agreement holder and an agreement holder is not a person having caveatable interest entitled to seek for revocation of probate. This submission is supported by a Division Bench Judgement of the High Court of Madras in Ramani U. Krishnan Vs. Ammini Praveen Joshua @ Veena reported at 2005 (2) CTC 262.
The learned Counsel has also relied upon a Single Bench Judgement of this Court in Smt. Sabita Dey & Anrs. Vs. Neeraj Estate Pvt. Ltd. reported at 1999 (1) CHN 65 for the proposition that all persons claiming to have any interest in estate of the deceased are entitled to apply for revocation and if a person claims that the testator during his lifetime had conveyed his interest in the property covered by the Will to him he cannot be 11 said to be a person claiming to have interest in the estate of the deceased inasmuch as it is his specific claim that the property was not the estate of the deceased at the time of death. Such person, therefore, would not be affected by the grant of probate of a Will by testamentary court, and accordingly, the plaintiff would be entitled to ask for recalling of those orders which are going to affect the plaintiff in preferring his title and which are automatically and likely to follow. In the event, the decree for specific performance is granted in favour of the plaintiff.
The suit is essentially a suit for specific performance of an agreement for sale dated 2nd February, 2008 alleged to have been executed between the plaintiff and late Dr. N.K. Achari. The plaintiff has conveniently in the plaint left out certain essential facts obviously with a view to justify the filing of the suit beyond the period of limitation and has very cleverly introduced a pleading based on Section 14 at paragraph 32 to give an impression that the plaintiff was proceeding with the compliant case before the Consumer Forum diligently and time spent therein may be executed. It is even argued that the said pleading at paragraph 32 was by way of an abundant caution since the other averments made in the plaint would show that the suit was filed within the period of limitation. In support of such contention, reliance has been placed on paragraph 18 of the plaint, which reads as follows:
"On or about 2nd March, 2011, the Plaintiff received a copy of the petition being G. A. No.641 of 2011 filed by the Defendant No.2 in connection with C. S. No.39 of 2011. From the said petition, the plaintiff came to learn for the first time that the defendant no.2 was disputing the authenticity of the Agreement for Sale dated 2nd February, 2008 and wrongfully 12 repudiating the same. Subsequently, the Plaintiff received a copy of the Plaint filed in relation to C. S. No.39 of 2011. The allegations contained in the Plaint are incorrect and are denied. From the plaint filed in C. S. No.39 of 2011, it transpired that the defendant no.2 had obtained probate of the will of the deceased from a court in the United States and had appointed one Suprakash Sen, since deceased as his constituted attorney with instructions to apply for and obtain Letter of Administration to the Estate of the deceased in India. It further transpired that by its order dated 3rd August, 2010 this Hon'ble Court has been pleased to grant a limited Letter of Administration of the Estate of the deceased to Suprakash Sen as the Constituted Attorney of the Defendant No.2."
In deciding the application for revocation of a plaint, in my view the Court can apart from the pleadings referred to the documents relied upon in the plaint if required in order to put an end to an otherwise meritless and frivolous suit. The reference to such pleadings and documents is only to ascertain if the plaint discloses a cause of action and not barred by limitation. Apart from the fact that the plaintiff has failed to furnish acts of due diligence before the Consumer Forum. The plaintiff very conveniently did not refer to the fact pleaded in the complaint case before Consumer Forum where it has been categorically stated that the plaintiff claimed specific performance of the agreement from Dr. Amrit Narayana Achari on 21st August, 2008. The plaintiff cannot postpone the cause of action in the suit. The right to sue against the legal heirs of the plaintiff arose according to the own showing of the plaintiff on 21st August, 2008. Even if one accepts that the Agreement for Sale was valid and binding then in terms of 13 the agreement the transaction was to be completed by September, 2008. The said agreement is binding on the legal heirs, successors and assigns of the deceased. The pleadings before the Consumer Forum shows that the plaintiff has asked the defendant No.2 to execute and register the conveyance on 21st August, 2008. The cause of action in respect of the complaint case as stated in Paragraph 25 reads:-
"25. That the cause of action for this case arose first on 8th March, 2007, when said Dr. Narayana Krishna Achari had confirmed selling the suit flat to the petitioner herein, then on 2nd February, 2008 when the said Dr. Narayana Krishna Achari, had executed the Agreement for Sale, then on 5th March, 2008 when he executed the Codicil revising the his said last Will dated 4th February, 2008, then on 17th April, 2008, when said Dr. Narayana Krishna Achari expired, then on 15th May, 2008, and 9th June, 2008 when the opposite party No.1 had confirmed to have taking steps in the matter of the said Will, then on 21st August, 2008 when your petitioner asked the opposite party No.1 to execute and register the deed of conveyance in favour of the petitioner herein in terms of the said Agreement for Sale dated 2nd February, 2008 and the direction as given in his Codicil dated 5th March, 2008, then on 28th February, 2010 when the opposite party No.15 herein advised the petitioner herein in respect of the goods left by said Dr. Narayana Krishna Achari, then on 3rd May, 2010 when the petitioner sent reply to the opposite party No.15, then on 14th July, 2010, when your petitioner sent reminder to the opposite party No.1 for acting in terms of the Agreement for Sale and the directions given in the Codicil dated 5th March, 2008, and lastly on 27th August, 2010, when M/S. P. Basu & Co, Solicitors & Advocates had given a letter to the Office-in-charge, Shakespeare Sarani, Kolkata, asking him to send them a copy of the undisclosed complaint based on which they have been causing harassments to your petitioner, and the same has been 14 continuing on each date subsequent thereto at Flat No.3B, 3rd Floor at Premises No.8B, Wood Street, Police Station Shakespeare Sarani, Kolkata - 700016, within the jurisdiction of the Hon'ble Commission."
It is not in dispute that the Agreement for Sale even if it is assumed to have been validly executed binds the legal heirs of the deceased and it was on that basis the plaintiff asserted his right and requested Dr. Amrit Narayana Achari to execute the deed of conveyance immediately after the death of deceased. The refusal to execute such deed arose immediately on 21st August, 2006 or soon thereafter. The entire consideration amount was to be paid by September, 2008. Even if it is accepted for the sake of argument that the right of refusal only accrues after August, 2008 since the time for final payment is only in September, 2008 even then the specific performance of the agreement is ex facie barred by limitation as it was known to the plaintiff that the defendant No.2 has refused to execute such conveyance. Article 54 of the Limitation Act, 1963 stipulates that the limitation for filing the suit for specific performance of the contract is three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. The averments made in the complaint case clearly show that on 21st August, 2008 or so soon thereafter the defendant No.2 has refused to execute the deed of conveyance. Apart from the aforesaid, there is neither explanation offered, nor any particulars given in the plaint with regard to due diligence in pursuing his remedy before the Consumer Forum.
The plaintiff says that that codicil of the Will, existence of which has seriously been challenged by the defendant on the ground that it was 15 impossible for the deceased to execute codicil having regard to the fact that at that relevant time the deceased was in I.C.U. at Belle Vue the question remains that the right on the basis of the codicil would be required to be established in a proceeding for revocation and not by filing a suit. The plaintiff on the basis of the codicil would be required to apply for recalling of the orders granting probate in accordance with law as it is alleged that under the codicil the defendant No.2 would be bound to execute the deed of conveyance transferring the property to the property.
These hurdles the plaintiff has failed to cross and, accordingly, in my view, the plaint is required to be nipped in the bud. The Plaint is dismissed under Order 7 Rule 11(d) of the Code of Civil Procedure. However, there shall be no order as to costs.
(SOUMEN SEN, J.) SP/AKG.