Madras High Court
M.Venugopal (Died) vs Interchand D.Kochar
CRP. No.5395 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on:17.07.2025 Pronounced on:12.09.2025
CORAM
THE HONOURABLE MR.JUSTICE P.B.BALAJI
CRP. No.5395 of 2024
and CMP. No.30042 of 2024
M.Venugopal (died)
M.Sukumari (died)
M.Sriram
Petitioner
Vs
1.Interchand D.Kochar
2.C.Sakkubai
3.S.Gopinath
4.Manoharan
Respondents
PRAYER: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order and decretal order dated
21.10.2024 in I.A. No.1 of 2023 in O.S.No.4638 of 2020 on the file of
VII Additional City Civil Court, Chennai.
For Petitioner : Mr.V.V.Sairam
For Respondents : Mr.T.Dhanasekaran for R1
Mr.M.Manivannan for
Mrs.S.Karpagavarthini for R2 to R4
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CRP. No.5395 of 2024
ORDER
The defendants 1, 5 and 6, being unsuccessful in an attempt to reject the plaint in I.A. No.1 of 2023 in O.S. No.4638 of 2020 are the revision petitioners.
2. I have heard Mr.T.R.Rajaraman and Mr.V.V.Sairam, learned counsel for the revision petitioner and Mr.T.Dhanasekaran, learned counsel for the first respondent and Mr.A.Manivanannan for Mrs.Karpagavarthini, learned counsel for the respondents 2 to 4.
3. The learned counsel for the revision petitioner would first and foremost state that the suit being one for specific performance and even according to the suit documents, the land belonging to a Temple, there is a clear bar for sale of the suit property without prior sanction of the Commissioner, Hindu Religious and Charitable Endowment Department under Section 34 of the Hindu Religious and Charitable Endowment Act, 1959 ( in short ‘HR &CE Act’). It is therefore contended that the prayer itself is not maintainable and further the primordial ground on which the rejection of the plaint was sought for is that the suit is also hopelessly 2/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 barred by limitation.
4. In support of his contentions, the learned counsel would rely on the following decisions:-
(i) Sri Mukunth Bhavan Trust and others Vs. Shrimant Chhaptrapati Udayan Raje Pratpsinh Maharaj Bhonsle and Another, reported in, (2024) SCC Online SC 3844;
(ii) Shabeer (Dead) through Lrs Vs. Anjuman (Since Deaceased) through Lrs., reported in 2023 INSC 898;
(iii) Paramasivam Vs. Elumalai, in S.A.No.175 of 2018 dated 22.03.2024;
(iv) The Government of Tamil Nadu rep. By its Secretary to Government, and another Vs. G.Nanda and others, in A.S. No.423 & 925 of 2025 dated 08.01.2024;
(v) K.Ithayaselvi Vs. Sub Registrar, Sub-Registration Officer, Mylapore, reported in W.P. No.675 of 2010 dated 01.02.2010; and
(vi) Rajesh Kumar Vs. Anand Kumar and Ors, reported in Civil Appeal No.7840 of 2023 dated 17.05.2024.
(vii) Vinod Popli Vs. Ragini Popli and Others, reported in AIR 3/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 2015 (NOC) 1122 (DEL.); and
(viii) Suman Lata Sharma Vs. Vinod Kumar Sharma and others, reported in (2017) SCC Online Del 11395,
5. Per contra, learned counsel for the contesting first respondent would submit that the suit has been filed within three years from the date of refusal and therefore, it is clearly maintainable under Article 54 of the Limitation Act, 1963 and there is no case made out for rejection of the plaint under Order VII Rule 11 CPC. The learned counsel would also rely on the decision of the Hon’ble Supreme Court in P.Kumarakurubaran Vs. P.Narayanaan and others, reported in (2025) SCC Online 975 and Ramilaben Devji Jodhani Vs. Ishvarlal Mangnlal Sha, reported in AIR Online 2023 Guj 1515. He would therefore pray for dismissal of the revision petition.
6. The learned counsel appearing for the respondents 2 to 4 would adopt the arguments of Mr.T.R.Rajaraman and Mr.V.V.Sairam and state that they are bonafide purchasers for consideration and their purchase has to be necessarily protected and the suit being clearly barred by limitation, 4/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 the plaint ought to have been rejected.
7. I have carefully considered the submissions advanced by the learned counsel for the parties.
8. The sale agreement is entered into between the plaintiff and the first defendant on 10.09.2001. Subsequently, the plaintiff has passed away and the agreement is sought to be enforced against his legal heirs who are defendants 5 and 6. The defendants 2 to 4 are purchasers from defendants 5 and 6. According to them, they are bonafide purchasers, without notice of the agreement of sale in favour of the plaintiff. On going through the plaint, I find that the plaintiff/first respondent herein has stated that the first defendant intended to sell the plaint schedule properties and the plaintiff evinced interest to purchase the same and an agreement of sale was entered into on 10.09.2001, which was also registered on the file of the Sub Registrar, Sowcarpet. It is contended by the plaintiff that out of the agreed sale consideration, the plaintiff had paid an advance of Rs.1,00,000/- and balance Rs.5,00,000/- is payable at the time of registration of the sale deed. Specifically averring that the 5/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 agreement did not stipulate any time for performance and the agreement on the contrary required the first defendant to vacate the tenant in occupation of suit property, the parties therefore, consciously, did not fix any time under the said agreement of sale.
9. It is also contended that the first defendant executed a registered power of attorney in favour of the plaintiff. According to the plaintiff, even the balance amount of Rs.5,00,000/- has been paid and the first defendant has made an endorsement on 12.03.2003 acknowledging receipt of the entire sale consideration and in token thereof, he has also handed over the original title deeds of the schedule mentioned property. The plaintiff further claims that he came to know that the first defendant had sold the property to the second defendant on 10.11.2008 in respect of a portion of the property and another sale deed, in respect of the remaining portion of the property, in favour of the defendants 3 and 4 on the same day.
10. According to the plaintiff, the defendants 2 to 4 are not bonafide purchasers for value without notice since the agreement of sale 6/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 is a registered agreement. It is also the contention of the plaintiff that a notice was issued on 10.03.2010 narrating the above facts and contemplating legal action. The defendants 2 to 4 sent a reply through their lawyer claiming that the intended claim for specific performance was barred by limitation. He would also contend that the first defendant received further monies only in order to vacate tenants and the first defendant never informed the plaintiff regarding the tenants vacating and handing over possession and the agreement also not being cancelled. The plaintiff has filed the suit for specific performance with an alternative prayer to pay damages to the tune of Rs. 25,00,500/-.
11. It is the contention of the defendants that the alleged payment of Rs.5,00,000/- is not true and the receipt on which, reliance is placed on by the plaintiff, it is a fabricated document. It is also contended that the property has already been sold and the purchasers are bonafide purchasers and the suit for specific performance is belated and clearly exhibits lack of readiness and willingness on the part of the plaintiff. The other argument is that the superstructure alone belongs to the first defendant and the agreement of sale which includes the land on which 7/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 the building has been put up, admittedly belonging to the HR & CE Department, the prayer sought for is also not maintainable.
12. In Saradamani Kandappan Vs. S.Rajalakshmi and others, reported in (2011) 12 SCC page 18, which has been relied upon by the learned counsel for the petitioner, the Hon’ble Supreme Court held that merely because the suit is filed within a period of limitation, ignoring time limits stipulated in the agreement then, it is not necessary to decree such a suit for specific performance and fact that the limitation of three years is avialable does not mean that a purchaser can wait for one or two years to file a suit and thereafter, obtain specific performance.
13. In K.Ithayselvi’s case (referred herein supra), this Court finding that the property belongs to Temple, the Trustees or the Manager of the Temple had no right to sell the property to any other person, without the permission of the HR & CE Board, and when there was no sanction under Section 34 (1) of the HR & CE Act, then the transaction was null and void.
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14. In Shri Mukund Bhavan Trust's case (referred herein supra), the Hon’ble Supreme Court rejected the plaint on the ground that the suit is barred by limitation. In Government of Tamil Nadu rep. By the Secretary to Government, HR & CE Department's case, (referred herein supra), this Court finding that the suit property belongs to the Temple, held that no suit is maintainable in view of the express bar under Section 108 of the HR & CE Act.
15.In the decision rendered by me in Paramasivam’s case, (referred herein supra), in a Second Appeal, on facts, I held that the claim under a receipt could not have been genuine and on that ground, I dismissed the Second Appeal affirming the concurrent findings that the plaintiff was not entitled to the relief of specific performance as he had failed to prove the existence of a valid concluded contract and also readiness and willingness to perform his part of the contract.
16. In P.Kumarakurubaran’s case (referred herein supra), the Hon’ble Supreme Court referred to T.Arivandandam Vs. T.V.Satyapal, reported in (1977) 4 SCC 467 and held that cause of action for filing the 9/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 suit is a bundle of facts and the issue of whether the suit is barred by limitation would be a mixed question of fact and law and therefore, Order VII Rule 11 CPC cannot be invoked and when the Trial Court had rightly dismissed the Application for rejection of plaint, then the High Court in revision ought not to interfere unless, there was an absence of jurisdictional error or perversity in the order of the Trial Court.
17. In Ramilaben Devji Jodhani’s case, Gujarat High Court referring to Article 54 of the Limitation Act, held that rejection of the plaint under Order VII Rule 11 of CPC was not proper on the facts of that case.
18. I have also had the benefit of the notice dated 10.03.2010 issued by the plaintiff and the reply notice issued by the first revision petitioner on 23.04.2010 as well as the sale deeds dated 10.11.2008 which are pertaining to superstructure alone. The said sale deeds have been executed by the first defendant during the lifetime and there is a clear admission that the land belongs to temple Sri Malleeswar and Srichenna Kesava Perumal.
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19. In any suit for specific performance, limitation period has to be viewed from the terms and conditions that have been agreed upon by the parties. If the agreement stipulates a time frame within which, the sale deed to be executed, then, the limitation would start from the said date and the suit would have to be filed within a period of three years from the date so mentioned in the agreement of sale. However, if an agreement of sale does not stipulate any time, then the second limb of Article 54 of the Limitation Act would come into play and the plaintiff is entitled to file a suit within a period of three years from the date of noticing refusal on the part of the defendant to come forward to execute the sale deed in favour of the plaintiff.
20. On going through the agreement of sale in the present case, it is evidently clear that the parties did not agree upon any specific time frame. In Clause 8, it is stated that the vendor has agreed to vacate the tenants in occupation of the schedule property, on signing of the Agreement of Sale. No doubt in the schedule of properties, it is agreed by the first defendant that he would convey land as well as house and superstructure at D.No.92, then Door No.89 and at present Door No.216, 11/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 Anna Pillai Street, Chennai-600 079. However, in the preamble to the said agreement of sale, I find that the first defendant has represented that his father purchased the schedule mentioned property under an absolute sale deed in Doc. No.815 of 1954 dated 26.09.1957 and thereafter, under the Will of this father dated 17.05.1972 which has also been probated before this Court in OP. No.392 of 1984, on 10.01.1985, the vendor viz., first defendant became the absolute owner of the property.
21. Having represented so and entered into an Agreement of Sale, it is not open to the defendants to now take advantage of their own wrong or suppression of fact of property belonging to the Temple and state that the property cannot be alienated and that there is a statutory bar. Even if it is found, after trial that the property belongs to HR & CE Department, the plaintiffs may still be entitled, subject to the oral and documentary evidence adduced by the parties, to purchase the superstructure atleast, if not the land. Therefore, the claim of the revision petitioner that the land is belonging to the HR & CE and it was only the superstructure that has been sold cannot be of any avail to the revision petitioner, that too, in an Application filed by them seeking rejection of the suit for specific 12/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 performance.
22. Coming to the other argument, with regard to limitation having found that the agreement does not stipulate any particular date for completion, in terms of the second limb of Article 54 of the Limitation Act, the plaintiff is certainly entitled to institute the suit within the period of three years from the date of noticing refusal by the vendor to come forward to complete the transaction.
23. In this regard, I have examined the plaint averments and allegations as well as the exchange of notices between the parties. In an application for rejection of the plaint under Order VII Rule 11 CPC, I am mindful of the fact that the Court can look into only the plaint averments and allegations and suit documents and nothing more. Therefore, straightaway, I reject the additional typed set II which has been filed by the revision petitioners to contend that the deeds of sale in respect of superstructure alone have been executed on 10.11.2008 in favour of the other defendants who are supporting the defendants 2 to 4. 13/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024
24. In the notice dated 10.03.2010, preceding the filing of the suit, the plaintiff has stated that entire sale consideration has been paid and that the first defendant had promised to vacate the tenants, for which alone, the balance sale consideration has also released and without honouring the sale agreement, the first defendant has proceeded to alienate the property in favour of the addressees 2 to 4.
25. It is also specifically contended that the plaintiff came to know about the same only after getting an encumbrance certificate. A reply notice was sent by the first defendant admitting the execution of sale agreement, but denying the claim of payment of entire sale consideration. It is also stated by the first defendant that in and by letter dated 18.06.2006, the plaintiff had stated categorically that there is no mutual claim against each other and that the sale agreement would be discharged.
26. It is also contended that the claim for specific performance is hopelessly time barred and only an attempt to extract money from the first defendant. The first defendant has also stated that he has filed a suit 14/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 in O.S. No.3513 of 2010 against the plaintiff for injunction. It is thereafter that the suit has been filed on 1st of July 2011. I have already found that the second limb of Article 54 alone would come into play in the facts of the present case as there has been no specific time agreed between the parties for completion of the contract. Therefore, the notice of the refusal on the part of the defendant is only in 2010, when the plaintiff has sent a notice after noticing entries in the Encumbrance Certificate that the property has been disposed of in favour of the defendants 2 to 4. Even in the plaint, the Encumbrance Certificate was filed as a document which is dated 30.12.2009. Therefore even assuming the said date can be imputed as the date of knowledge of an implied refusal on the part of the defendants, then the suit filed on 01.07.2011 is clearly within three years. It is totally another aspect as to whether the plaintiff, in such circumstances, can be said to be ready and willing or whether he is entitled to discretionary relief of the specific performance. These issues can only gone into after the parties, lead oral and documentary evidence and the issues arising in the suit are tested by the Trial Court, based on the pleadings and evidence on record. However, the attempt on the part of the defendants to throw out the plaint on the 15/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 ground of limitation at this stage, is certainly not acceptable.
27. On the facts of the present case, it is clear that even the question of limitation would only be a mixed question of fact and law, requiring evidence to be adduced by the parties. The plaint is not one which can be summarily thrown out, on reading of the plaint alone, holding that the suit is barred by limitation.
28. Insofar as the decisions relied with regard to maintainability of the suit on the ground that the land belonging to the HR & CE Department, I do not see the said decisions being relevant for the purposes of the present case since the first defendant has himself represented to be the absolute owner of the land and superstructure and under such premise has agreed to sell the property to the plaintiff. Therefore, the first defendant or his legal heirs now cannot take advantage of their own wrong and attempt to non suit the plaintiff. It is however, a matter for trial and the parties will always be at liberty to contest this issue with regard to whether the land belongs to the HR & CE or not and if so, whether the suit is maintainable, or to what reliefs 16/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 the plaintiff would be entitled to.
29. The learned counsel for the petitioner has relied on the decisions of the Hon'ble Delhi High Court in Vinod Popli Vs. Ragini Popli and Others, reported in AIR 2015 (NOC) 1122 (DEL.), and Suman Lata Sharma Vs. Vinod Kumar Sharma and others, reported in (2017) SCC Online Del 11395, for the proposition that no Court will lend its aid to a man who found his cause of action upon an immoral or illegal act. In other words, the principles of 'in pari delicto' is relied on to non-suit the plaintiff. In Vinod Popli's case, (referred herein supra), the plaintiff tried to evade creditors by setting up a make believe divorce and therefore, the Court held that the plaint was liable to be rejected.
30. In Suman Lata Sharma's case, (referred herein supra), the Delhi High Court found that the plaintiff had not disclosed the actual transaction in the plaint and holding the plaintiff guilty of hiding true nature of transaction to defraud revenue, invoked the principle of 'in pari delicto' rejected the plaint. I do not see see how these two decisions would apply to the facts of the present case.
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31. I have already discussed the issue regarding inclusion of the land also in the agreement of sale. The revision petitioners/predecessors in interest has represented himself to be the owner of the land and superstructure while entering into the agreement of sale. Therefore, the plaintiff cannot be non suited on the ground that the plaintiff is attempting to knock away the land belonging to the Temple. In any event, even assuming it is ultimately found that the land cannot be subject matter of the agreement of sale, the plaintiff would certainly be entitled to purchase of the superstructure atleast, in the event of establishing his readiness and willingness at trial. In fact, there is also an alternate prayer for damages. In view of the above, the doctrine of 'in pari delicto' cannot be invoked in the facts of the present case, that too, in an Application under Order VII Rule 11 CPC.
32. In Shri Mukund Bhavan Trust’s case (referred herein supra), the Hon’ble Supreme Court allowed an Application for rejection of the plaint by setting aside the orders of the Courts below on finding that it was glaring even from the plaint averments that the suit is hopelessly barred by limitation and therefore, proceeded to hold that the litigation 18/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 was exfacie an abuse, as it was barred by law of limitation and liable to be rejected under Order VI I Rule 11 (d) CPC.
33.In Saradamani Kandappan’s case, (referred herein supra), the Hon’ble Supreme Court, no doubt held that the suit for specific performance need not be decreed merely because which is filed within a period of limitation. However, the said case was not arising out of an Application under Order VII Rule 11 CPC, but a decree in a suit for specific performance was being tested by the Hon’ble Supreme Court.
34.In Kumarakurubaran’s case, (referred herein supra), the Hon’ble Supreme Court held that if limitation is a mixed question of fact and law, then rejecting the plaint on the ground of limitation under Order VII Rule 11 CPC is ruled out and also went on to hold that the Trial Court order was well reasoned and it had rightly held that issue of limitation necessitated adjudication upon evidence and the plaint cannot be rejected on the ground that it is barred by limitation.
35. In Ramilaben Devji Jodhani's case (referred herein supra), the 19/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/09/2025 07:48:28 pm ) CRP. No.5395 of 2024 Gujarat High Court held that in terms of Article 54 of the Limitation Act, limitation would start from the knowledge of the plaintiff regarding a fraudulent sale, having found that the agreement in question in the suit did not have a specific date for completion of the transaction.
36. In the light of the above, I do not see the decisions in Saradamani Kandappan and Shri Mukund Bhavan Trust's cases (referred herein supra) applying to the facts of the present case. As rightly held by the Gujarat High Court in Ramilaben Devji Jodhani's case (referred herein supra), when the agreement does not stipulate any specific time period or a date within which the agreement has to be concluded, then the plaintiff is entitled to file a suit within three years from the date of noticing refusal. I have already discussed the relevant dates herein above and found that the plaint cannot rejected summarily invoking under Order VII Rule 11 CPC. The Trial Court also rightly discussed all these issues and has come to the right conclusion that the Application for rejection of the plaint is not maintainable. I do not find any infirmity or perversity in the order passed by the Trial Court and the revision is liable to be dismissed.
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37. Accordingly, this Civil Revision Petition is dismissed. No costs. Connected Miscellaneous Petition is also dismissed.
12.09.2025 rkp Index : Yes Internet : Yes To:
The VII Additional City Civil Judge, Chennai.21/22
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