w w w . L a w y e r S e r v i c e s . i n



Beach Towers Condominium & Another v/s Bombay Dyeing & Manufacturing Company Limited & Others


Company & Directors' Information:- C & C TOWERS LIMITED [Active] CIN = U45206HR2009PLC038928

Company & Directors' Information:- THE BOMBAY DYEING AND MANUFACTURING COMPANY LIMITED [Active] CIN = L17120MH1879PLC000037

Company & Directors' Information:- R K MANUFACTURING CO LTD [Active] CIN = L27209WB1984PLC037758

Company & Directors' Information:- R K MANUFACTURING CO LTD [Active] CIN = L27209GJ1984PLC098951

Company & Directors' Information:- INDIA MANUFACTURING CORPORATION PRIVATE LIMITED [Active] CIN = U24100DL2010PTC198947

Company & Directors' Information:- H M TOWERS PRIVATE LIMITED [Active] CIN = U85110KA1996PTC020382

Company & Directors' Information:- S I A MANUFACTURING PRIVATE LIMITED [Active] CIN = U74120UP2013PTC057004

Company & Directors' Information:- S K M MANUFACTURING PRIVATE LIMITED [Active] CIN = U17200DL2011PTC223768

Company & Directors' Information:- R K TOWERS INDIA PRIVATE LIMITED [Active] CIN = U74899DL1976PTC008446

Company & Directors' Information:- S T S MANUFACTURING PRIVATE LIMITED [Active] CIN = U28112TZ2006PTC012940

Company & Directors' Information:- A S P MANUFACTURING COMPANY PVT LTD [Active] CIN = U27109WB1991PTC051461

Company & Directors' Information:- D D TOWERS PRIVATE LIMITED [Active] CIN = U45200PB2005PTC028227

Company & Directors' Information:- A K MANUFACTURING PVT LTD [Active] CIN = U51909MN1988PTC003110

Company & Directors' Information:- M R DYEING PRIVATE LIMITED [Active] CIN = U17120MH2005PTC150387

Company & Directors' Information:- I T A C (INDIA) MANUFACTURING CO LTD [Dissolved] CIN = L51109WB1982PLC034689

Company & Directors' Information:- R R TOWERS PRIVATE LIMITED [Active] CIN = U45201DL2001PTC112814

Company & Directors' Information:- M B TOWERS PRIVATE LIMITED [Active] CIN = U65991UP1996PTC020736

Company & Directors' Information:- J D MANUFACTURING CO PVT LTD [Active] CIN = U51909WB1996PTC079825

Company & Directors' Information:- A S P MANUFACTURING COMPANY PVT LTD [Not available for efiling] CIN = U36900WB1991PTC005146

Company & Directors' Information:- K P TOWERS PRIVATE LIMITED [Active] CIN = U70101RJ1997PTC013828

Company & Directors' Information:- B R D MANUFACTURING PRIVATE LIMITED [Active] CIN = U51109WB1997PTC085188

Company & Directors' Information:- V I P TOWERS PVT LTD [Amalgamated] CIN = U45201WB1996PTC079615

Company & Directors' Information:- R J S MANUFACTURING PRIVATE LIMITED [Active] CIN = U27104DL1997PTC090521

Company & Directors' Information:- B U MANUFACTURING PVT LTD [Active] CIN = U51109WB1982PTC035271

Company & Directors' Information:- M M MANUFACTURING PVT LTD [Active] CIN = U26922WB1993PTC059837

Company & Directors' Information:- J. C. MANUFACTURING INDIA PRIVATE LIMITED [Active] CIN = U21099WB2020PTC236821

Company & Directors' Information:- S B MANUFACTURING PRIVATE LIMITED [Strike Off] CIN = U31506WB1999PTC088567

Company & Directors' Information:- S. L. TOWERS PRIVATE LIMITED [Active] CIN = U70200WB2019PTC235260

Company & Directors' Information:- R P L DYEING PRIVATE LIMITED [Strike Off] CIN = U17120MH1999PTC119345

Company & Directors' Information:- K. V. J. MANUFACTURING INDIA PRIVATE LIMITED [Active] CIN = U29308DL2017PTC320213

Company & Directors' Information:- K R TOWERS PRIVATE LIMITED [Active] CIN = U70103OR2020PTC033380

Company & Directors' Information:- A T E MANUFACTURING CO PRIVATE LIMITED [Amalgamated] CIN = U28999GJ1973PTC002296

Company & Directors' Information:- J K TOWERS PRIVATE LIMITED [Active] CIN = U45209WB2008PTC124220

Company & Directors' Information:- J P MANUFACTURING AND CO PVT LTD [Strike Off] CIN = U51226WB1982PTC034927

Company & Directors' Information:- D. K. MANUFACTURING (INDIA) LIMITED [Strike Off] CIN = U37200WB2011PLC170403

Company & Directors' Information:- J J DYEING PRIVATE LIMITED [Active] CIN = U18109HR2016PTC064228

Company & Directors' Information:- A P DYEING PVT LTD [Strike Off] CIN = U51494WB1992PTC055135

Company & Directors' Information:- B M DYEING PVT LTD [Active] CIN = U17297WB1983PTC037003

Company & Directors' Information:- S M MANUFACTURING COMPANY PRIVATE LIMITED [Active] CIN = U34300HR1997PTC057824

Company & Directors' Information:- G K MANUFACTURING PRIVATE LIMITED [Strike Off] CIN = U34300PB2012PTC036073

Company & Directors' Information:- P & B MANUFACTURING PRIVATE LIMITED [Active] CIN = U29254TN2010PTC076696

Company & Directors' Information:- B. V. H. MANUFACTURING INDIA PRIVATE LIMITED [Active] CIN = U74999GJ2018FTC100633

Company & Directors' Information:- H M DYEING LIMITED [Under Liquidation] CIN = U74899DL2005PLC139287

Company & Directors' Information:- R A MANUFACTURING COMPANY PRIVATE LIMITED [Strike Off] CIN = U36900HR2012PTC047669

Company & Directors' Information:- D. P. TOWERS PRIVATE LIMITED [Strike Off] CIN = U45201DL1987PTC027884

Company & Directors' Information:- S N TOWERS PRIVATE LIMITED [Active] CIN = U70109WB2010PTC142785

Company & Directors' Information:- M K TOWERS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC060144

Company & Directors' Information:- S S TOWERS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC060157

Company & Directors' Information:- K C TOWERS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC060163

Company & Directors' Information:- K J TOWERS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC060174

Company & Directors' Information:- S B TOWERS PRIVATE LIMITED [Strike Off] CIN = U45400WB2008PTC124856

Company & Directors' Information:- R N TOWERS PVT LTD [Active] CIN = U74899DL1988PTC030737

Company & Directors' Information:- A K R MANUFACTURING PRIVATE LIMITED [Active] CIN = U19200RJ2012PTC041177

Company & Directors' Information:- P & C TOWERS PRIVATE LIMITED [Active] CIN = U45400DL2008PTC183330

Company & Directors' Information:- M R TOWERS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC035352

Company & Directors' Information:- R V TOWERS PRIVATE LIMITED [Active] CIN = U45400DL2011PTC222351

Company & Directors' Information:- C N C MANUFACTURING PRIVATE LIMITED [Strike Off] CIN = U64204DL2015PTC281449

    Suit No. 771 of 2012 with Notice of Motion No. 904 of 2012

    Decided On, 06 March 2017

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE G.S. PATEL

    For the Plaintiffs: M.K. Ghelani, Armin Wandrewala, i/b Akshay Vani, Advocates. For the Respondents: D1, J.D. Dwarkadas, Senior Advocate with Neville Mukherjee, i/b Veritas Legal, D2, N.H. Seervai, Senior Advocate with Mandakini D.S. Singh, Advocates.



Judgment Text

Oral Judgment:

A. INTRODUCTORY

1.On 28th March 2015, Mrs RS Dalvi J framed this preliminary issue on a limitation plea raised by Defendants Nos. 1 and 2: whether the Suit is within time? Since this is an issue of limitation, though taken as a jurisdictional bar, I will proceed on the basis that the question to be answered is whether any of the reliefs sought in the plaint are barred by limitation. Had this jurisdictional bar been pleaded on account of a statutory prohibition or territorial limitation, the question might have been whether the suit as a whole is barred. When it comes to limitation, however, it is always possible that one or more of the reliefs are within time, while others are beyond limitation. All have proceeded on this basis.

2.On 28th March 2014, all three parties agreed that no evidence was necessary and that they would proceed on the available documents.

3.The 1st Plaintiff is a condominium of flat owners in a building known as Beach Towers. The 2nd Plaintiff is the President of the condominium and owns one of the flats in Beach Towers. The apartment tower, with two wings, was constructed in the late 1970s. The location is important: it stands towards very nearly the end of a P Balu Marg, a lane that runs east-west perpendicular to the arterial Old Cadell Road (Veer Savarkar Marg), Prabhadevi, Mumbai. The suit concerns four plots of land here, all of the Mahim Division, all contiguous: Plot Nos. 1286-A (2,176.43 sq mtrs); 1286-C (4,677.29 sq mtrs); 1287-C (671.40 sq mtrs); and 1287-D (672.24 sq mtrs). Beach Towers stands on plot No 1286-C. To the south of this plot is Plot 1286-A. On this stands an old bungalow, Beach House, owned by the 1st Defendant, Bombay Dyeing, a company controlled by the Wadia family. Beach House is the Wadia’s family home. Due west of the Beach House plot is a narrower strip of land, Plot 1287-C. On this, there is a swimming pool. It overlooks the sea front. To the north of the swimming pool plot (and therefore west of the Beach Towers plot) is another smaller strip of land, also overlooking the sea, and on this there is a garden. Thus, Beach House is fronted to its west by the swimming pool and garden plots, and on the seaward (western) side there is, I am told, an embankment or promenade just above the beach, but this is not motorable. Beach House, the swimming pool and the garden all existed as on 29th March 1980, a date of some consequence. East of the Beach House plot is Plot No. 1286-B, on which stands the Deep Lakshmi Cooperative Housing Society; we are not concerned with this plot. Access to Beach House is from an extension of Hatiskar Marg, a lane to the south. Hatiskar Marg also runs in a north-south direction to the east of the Beach Towers plot and intersects P Balu Marg. Beach Towers thus has access from P Balu Marg and Hatiskar Marg.

4.The Plaintiffs say they are entitled to access and use the garden plot and the swimming pool plot; Bombay Dyeing and the 2nd Defendant ('NWSL', another company in the Bombay Dyeing group) have unlawfully excluded the Plaintiffs from these; and have also illegally constructed two compound walls that cut through the Beach Towers plot in a sort of chicane curve (south-north), in addition to taking away for themselves another small piece of the Beach Towers plot. The Plaintiffs assail various documents and deeds by which, they allege, Bombay Dyeing contrived to ‘reserve to itself’ all this land by establishing covenants running with the land. The Plaintiffs want these documents declared illegal, null and void; a similar declaration that the exclusion of the Plaintiffs from these lands and the restriction of their claimed rights in one particular document is unlawful; another declaration that the 1st Plaintiff is the absolute owner of all these disputed lands; a possession decree in respect of these lands; an order of restraint against Bombay Dyeing and NWSL from preventing the Plaintiffs’ use of these lands; an order of demolition of the compound walls; delivery of possession of a security cab and toilet block; restoration of one particular stilt parking in Beach Towers’ Wing 2; an order of disclosure; a mandatory injunction to Bombay Dyeing to obtain a building completion certificate from the Municipal Corporation of Greater Mumbai (the 3rd Defendant, 'MCGM'); and damages of Rs.100 crores for deprivation of the use of these lands.

5.For clarity, a reproduction of a sketch plan from Exhibit 'D' to the plaint at page 161 is appended to this order. The disputed land is the portion in yellow wash. I have also taken the liberty of appending a Google Earth image, for a more realistic depiction of the disputed properties.

6.It seems to me self-evident that every single relief turns on the Plaintiffs being able to obtain the first three declarations, and that the second and third declarations necessarily hinge on the first. The suit is thus principally for a declaration and possession of immovable property. The question, for the purposes of limitation, must therefore be: when did the Plaintiffs’ right to sue first accrue? Or perhaps when did the Plaintiffs’ right to sue accrue? The answer to either of these must be the starting point of limitation. These questions raise the next enquiry: when did the Plaintiffs learn, or first learn, of the so-called infringement of their rights?

7.Mr Dwarkadas and Mr Seervai for Defendants Nos.1 and 2 say that the suit is hopelessly out of time. The Plaintiffs knew of the documents restricting their rights at the very latest five years before they filed their suit, and very possibly much earlier. Individual flat owners in Beach Towers had agreements that referenced the very documents now assailed. Full particulars of those documents were disclosed. The Condominium itself was supplied copies of the relevant documents in February 2007, and those documents referenced the covenants running with the land and the restrictions that the Plaintiffs, for the first time, seek to set aside in a suit filed in 2012. The plaint itself shows that the Plaintiffs’ architect reported on so-called plot area discrepancies in 2005, and the Plaintiffs’ lawyers obtained documents evidencing the covenants and restrictions in 2007. Every prayer in the suit, Mr Dwarkadas and Mr Seervai say, is time-barred.

8.Mr Ghelani for the Plaintiffs disagrees. He says there is no limitation that attaches to a suit such as this. There are documents of which the Plaintiffs had no knowledge till 2010, and they brought suit in 2012, well within time. Besides, he says, the Plaintiffs seek the enforcement of a statutory obligation cast on Defendants Nos. 1 and 2 under the Maharashtra Apartment Ownership Act, 1970 ('the MAO Act'); each day that the Defendants Nos.1 and 2 fail to discharge their obligation furnishes the Plaintiffs with a fresh starting point of limitation. This is also, he says, a case of a continuing wrong, and therefore the date of knowledge of any particular document now impeached is wholly immaterial.

9.I have considered the rival submissions and the material on record. In my judgment, none of the final reliefs in the Suit are within time. I have held against the Plaintiffs and for Defendants Nos. 1 and 2 on the preliminary issue. My reasons follow.

B. FACTS

10.On 6th March 1978, Bombay Dyeing obtained exemption under Section 20 of the Urban Land Ceiling Act, then applicable, in relation to these lands. On 4th September 1978, the terms and conditions of this exemption were slightly modified. A month later, on 6th October 1978, those conditions were made applicable only to a portion of the land admeasuring 380.60 sq mtrs. On 4th June 1979, Bombay Dyeing obtained approval for amalgamation of these four plots.

11.As I have noted, Beach House, the swimming pool and the garden all existed on 28th March 1980. On that day, Bombay Dyeing executed a ‘Deed Poll’, self-declaring a formulated scheme for the use of all four plots. These plots were described in the second, third and fourth schedules to the Deed Poll. It provided that Bombay Dyeing (and its successors-in-title) would have exclusive use of the portions disputed in this suit: the swimming pool plot, the garden plot and a swathe of what was later to become the Beach Towers plot. This is the portion in yellow wash in the appended sketch plans. The Deed Poll also reserved to Bombay Dyeing a right of way over the Beach Towers plot. The yellow portion that cuts through the Beach Towers plot was forever to remain open-to-sky and unbuilt. The Deed Poll was not registered. On 29th June 1983, Bombay Dyeing executed a Deed of Confirmation, which it had registered on 6th July 1983. The Deed Poll was annexed to the Deed of Confirmation. The two compound walls are shown in the plan annexed to the 1983 conveyance.

12.On 27th March 1981, Bombay Dyeing leased to NWSL the Beach House plot and some portions of the other three plots for five years from 1st February 1981. That lease was renewed periodically. NWSL continued as the lessee of the Beach House plot and the appurtenant specified lands, viz., disputed (yellow-shaded) portions. On 29th September 2000, NWSL purchased the reversionary rights for these lands.

13.Construction of Beach Towers began in March 1979. On 11th March 1982, the MCGM approved plans (amended in April 1979). On 30th April 1982, the MCGM granted an occupation certificate, and the Beach Towers construction was completed on that date.

14.The Plaintiffs say this occupation certificate required the demolition of the compound walls. These, the Plaintiffs say, were always temporary and had a small gate. The walls still exist, and the gate is always locked. The result, the Plaintiffs complain, is that they are denied all access to the rest of the property to which they are entitled (the yellow-shaded, disputed lands).

15.On 17th August 1983, Bombay Dyeing sold the Beach Towers Plot, the swimming pool plot and the garden plot (with some exclusions to cover inter alia the Land Ceiling Act exempted land) to its wholly-owned subsidiary, SCAL Investments Limited ('SCAL'). The conveyance specifically referenced, and was subject to, the reservations and restrictions in the Deed Poll. Some flats in Beach Towers were also excluded from this conveyance. There followed a second conveyance on 14th March 1984 from Bombay Dyeing to SCAL, this time of the Beach House plot and some flats from Beach Towers. Errors in the conveyance of 1984 were corrected by a separate Deed of Rectification dated 3rd May 1984.

16.In 1986, SCAL sold flats in Beach Towers to various apartment purchasers. Bombay Dyeing and NWSL say that before executing these Agreements of Sale, the intending purchasers were given inspection of the other documents, including the conveyance of 17th August 1983 - a document that specifically referenced the Deed Poll of 1980 - and the Agreements for Sale all record this inspection. There is, too, a further recital in Clause 22 of these Agreements for Sale that the flat purchaser agreed to buy the apartment in question subject to the restrictions, limitations and covenants in the 17th August 1983 conveyance. The 2nd Plaintiff himself executed an Agreement for Sale dated 8th April 1986 for Flat No.11 on the 1st floor of Beach Towers in these terms. SCAL sold some eight flats in Beach Towers to persons who were not employees of Bombay Dyeing or its group companies, though other flats were occupied by employees of the Bombay Dyeing group.

17.The 2nd Plaintiff’s Agreement for Sale dated 8th April 1986 is not annexed to the Plaint.

18.On 27th May 1986, the 2nd Plaintiff signed another agreement while taking possession of Flat No. 11 in Beach Towers.

19.On 1st September 1989 SCAL made a declaration ostensibly under Section 2 of the MAO Act. This created the 1st Plaintiff condominium. This was registered with the Sub-Registrar of Assurances, Mumbai on 11th September 1989. This Declaration in terms said that the swimming pool and garden plots (with their attendant structures) would not be granted to the Condominium, and the 1st Plaintiff’s rights were subject to the covenants running with the lands as set out in the two conveyances of 1983 and 1984. The Declaration set out what was not conveyed or transferred to the Condominium: eight apartments and two parking spaces; the swimming pool and garden plots; and an area of the Beach Towers plot pro-rated to eight apartments (about 381 sq mts). To this declaration was annexed a plan, and it shows the two compound walls. Later, every purchaser in Beach Towers executed his or her own Deed of Apartment. Each of these references the 1983 and 1984 conveyances, the rectification deed, their respective registration umbers and mentions that there are restrictions, limitations and covenants running with the land. The area of 381 sq mts is also mentioned as being retained by Bombay Dyeing (indeed, as being required to be retained by Bombay Dyeing because of the land ceiling exemption order). The swimming pool and garden find specific mention too.

20.On 20th April 2001, SCAL merged with Bombay Dyeing. The properties conveyed to SCAL thus became the properties of Bombay Dyeing.

21.The Plaintiffs say that the outside flat purchasers were kept in dark about their rights as apartment owners in Beach Towers. They only gradually gained more knowledge and the Plaintiffs say in paragraph 5(M) that it was only in 2005 that:

'they came to realize that they had been short-changed by the Defendant No. 1, the Promoter, in respect of open spaces, parking spaces, garden areas, recreational areas, etc. which in law they are entitled to.'

22.On 13th January 2005 the Condominium appointed an Architect to survey the property ostensibly to ascertain 'the true factual position, especially as regards general common areas and facilities'. The condominium received a Report dated 24th August 2005. This said that the actual area of the land in possession of the condominium was about 1,275.44 sq mtrs less than it ought to have been given the area on Plot No 1286C on which Beach Towers stands. The Report also said that Plots Nos. 1287C and 1287D were not in physical possession of the Plaintiffs and this was said to be unlawful.

23.In paragraphs 5(N) to 5(P) of the Plaint, the Plaintiffs say that their Advocates were able to obtain copies of some of the documents that are impeached in this Suit only in early 2007.

24.On 9th July 2007 the Condominium wrote to Bombay Dyeing setting out its grievances. Chief among these was the Condominium’s complaint that there was a shortfall in the land conveyed to it. Bombay Dyeing replied on 26th September 2007. A copy of this Reply is at Exhibit 'P' at pages 436-437. Bombay Dyeing completely denied the Plaintiffs’ claim. What is important for our purposes is that on the second page of this letter Bombay Dyeing clearly said that a complete copy of SCAL’s declaration dated 1st September 1989 was made available to the Condominium in that year itself. In any case, Bombay Dyeing offered inspection. It also said that the plan annexed to the declaration was annexed to the Conveyance dated 17th August 1983 and inspection of this plan was given to each flat purchaser, and this was recorded in the individual flat purchasers’ agreement for sale.

25.The Plaintiffs claim that it was only some time in August/September 2007 that they learnt of the Deed Poll of 28th March 1980. The Plaintiffs say they obtained a copy of this Deed Poll only on 25th February 2008.

26.I will pause here for a moment to note that this Suit itself was filed on 13th February 2012.

27.There then followed certain further correspondence which I do not think is necessary to examine for the present purposes.

28.On 7th May 2010, the Plaintiffs filed Writ Petition No. 1108 of 2010 seeking a demolition of the compound wall/walls. The MCGM filed an Affidavit. On 5th July 2011, the Writ Petition was disposed off apparently with a direction or liberty to the Plaintiffs to file a suit, a writ petition being inappropriate. The Petition was rejected.

C. THE RELIEFS IN THE SUIT

29.The final reliefs in the present Suit, numbered from (a) to (k) are these:

'(a) that this Hon’ble Court be pleased to declare that the impugned documents mentioned in paragraphs 7(I) to (IX) hereinabove (Exhibits L, M, N, R and S hereto) are bad in law, illegal, null and void ab initio and not binding upon the Plaintiff No. 1 insofar as they purport to prejudicially affect the rights of the Plaintiff No. 1 in the said balance property shaded in yellow colour in the sketch Exhibit D hereto, admeasuring 2,619.08 square meters, described in the Schedule Exhibit E hereto;

(b) that this Hon’ble Court be pleased to declare as illegal, unlawful, null and void ab initio and not binding upon the Plaintiff No. 1 all references in the said Deed of Declaration dated 1st September 1989 that purport to restrict the rights of the Plaintiff No. 1 in the said balance property shaded in yellow colour in the sketch Exhibit D hereto, admeasuring 2,619.08 square meters, described in the Schedule Exhibit E hereto or exclude any part of the said balance property on account of alleged restrictions and/or reservations and/or alleged covenants running with land set out in any of the documents impugned herein;

(c) that this Hon’ble Court be pleased to declare that the Plaintiff No. 1 is the sole and absolute owner of and has full right, title and interest in the said balance property shaded in yellow colour in the sketch D hereto, admeasuring 2,619.08 square meters, described in Schedule Exhibit E hereto and that it is entitled to exclusive use occupation and possession thereof;

(d) that this Hon’ble Court be pleased to pass a decree of possession in favour of the Plaintiff No. 1 of the said balance property shaded in yellow colour in the sketch Exhibit D hereto, admeasuring 2,619.08 square meters, described in the Schedule Exhibit E hereto;

(e) that this Hon’ble Court be pleased to pass an order of permanent injunction restraining the Defendants 1 and 2, their servants agents and employees from interfering with or restraining the Plaintiffs or the members of the Plaintiff No. 1 or their families from entering upon and/or using the said balance property shaded in yellow colour in the sketch Exhibit D hereto, admeasuring 2,619.08 square meters, described in the Schedule Exhibit E hereto;

(f) that this Hon’ble Court be pleased to pass a mandatory order, ordering and directing the Defendants or any of them to forthwith dismantle and/or demolish the impugned compound walls, shown in the sketch plan Exhibit E hereto, which are admittedly unauthorized and illegal;

(g) that this Hon’ble Court be pleased to pass a mandatory order directing the Defendant No. 1 to handover possession of Security Cabin with toilet block to Plaintiff No. 1;

(h) that this Hon’ble Court be pleased to pass a mandatory order directing the Defendant No. 1 to restore the Suit Parking No. 7 in Wing No. 2 of the building to its original position;

(i) that this Hon’ble Court be pleased to pass a mandatory order directing the Defendants 1 and 2 to disclose:-

(i) layout conditions of the suit property; and

(ii) Lease Deed dated 26th September, 1986;

(j) that this Hon’ble Court be pleased to pass a mandatory order, ordering and directing the Defendant No. 1 to obtain Building Completion Certificate from Defendant No. 3;

(k) that this Hon’ble Court be pleased to pass a decree for damages for Rs 100 crores jointly and severally against Defendant Nos. 1 and 2 for fraudulently depriving the Plaintiff No. 1 from using the said balance property shaded in yellow colour in the sketch Exhibit D hereto,

admeasuring 2,619.08 square meters, described in the Schedule Exhibit E hereto;'

30.I am not in this order concerned with the merits of the challenge or the Plaintiffs’ case. My task is only to see whether these reliefs are brought within time, that is to say, if they fall within one or more of the applicable Articles or Sections of the Limitation Act 1963. The relevant pleading in the plaint is in paragraph 27 and this is what it says:

'27. The Plaintiffs say and submit that they ultimately obtained the documents impugned hereinabove only by around August 2010. The material and relevant facts entitling the Plaintiffs to have the documents impugned herein set aside first became known to the Plaintiffs only around August 2010, and hence the suit is within time. In any event and without prejudice to the aforesaid it is submitted that since the impugned documents, in so far as they purport to prejudicially affect the rights of the Plaintiff No. 1 in the suit property are against statute, untenable and unlawful, and are null and void ab initio, vitiated by fraud and not binding upon the Plaintiffs, the question of limitation does not arise. Moreover, the Defendant No. 1 and/or 2 have committed a systematic fraud which vitiates everything. The Plaintiffs had pursued the remedy of writ in so far as the impugned compound walls are concerned and have, by the said order dated 5 July 2011, been relegated to a civil suit. The impugned compound walls, being illegal and in breach of the OC, constitute a recurring breach and cause of action every day that they continue to stand. In any event, and without prejudice to the aforesaid contentions, the Plaintiffs submit that no part of the cause of action is barred by limitation.'

31.Prayer (a) quoted above challenges nine documents listed in paragraph 8 (wrongly mentioned as paragraph 7 in the prayer). (Paragraph 7 at page 23 of the Plaint says thisJ

These are, in sequence:

'7. The Defendant No.1 has also, in concert and collusion with the Defendant No.2, purported to impose restrictions on the suit property repugnant to the interest created in favour of the Plaintiffs, which is impermissible in law, and not binding on the Plaintiffs.'

(I) The Deed of Confirmation dated 29th June 1983 by which the Bombay Dyeing registered its Deed Poll of 28th March 1980;

(II) The Deed Poll dated 28th March 1980;

(III) The Conveyance dated 17th August 1983 to the extent that it reserves the property to Bombay Dyeing or to the 2nd Defendant or prejudices the Plaintiffs’ rights;

(IV) The Conveyance of 14th March 1984 again to the extent that it prejudices the Plaintiffs’ rights;

(V) The Deed of Rectification dated 3rd May 1984 between Bombay Dyeing and SCAL;

(VI) The Lease Deed dated 26th September 1986 between SCAL and the 2nd Defendant in relation to one particular item of one particular clause (item (c) in clause 1);

(VII) The Lease Deed dated 26th September 1986 between SCAL and the 2nd Defendant in relation to one particular item of one particular clause (item (d) in clause 1);

(VIII) The Indenture of Lease dated 27th March 1981 between the Bombay Dyeing and the 2nd Defendant to the extent it prejudices the Plaintiffs; and

(IX) The Deed of Confirmation dated 27th March 2002 made by Bombay Dyeing read with an Indenture of Conveyance of Reversion dated 24th November 2000 between SCAL and the 2nd Defendant again to the extent that it prejudices the Plaintiffs.

32.Prayer (a) makes it clear that the purpose of this challenge is to secure to the Plaintiffs an area of 2,619.08 sq mtrs described in Exhibit 'E' to the plaint - the one shown in the yellow wash. This is described in Exhibit 'E' to the plaint, thus:

'ALL THAT piece or parcel of land situated at P. Balu Marg, Prabhadevi, Mumbai 400 025 bearing Final Plot No 1286C (part) admeasuring 1,275.44 square meters, Final Plot No 1287C admeasuring 671.40 square meters and Final Plot No 1287D admeasuring 672.24 square meters in aggregate admeasuring 2,619.08 square meters.'

33.This is the very land that has been so shown in the antecedent documents.

D. SUBMISSIONS & FINDINGS

34.Mr Ghelani’s submission is that no period of limitation applies to this suit. His reasoning is that the Plaintiffs’ complaint is about a ‘series of acts’ and each furnishes the Plaintiffs with a fresh starting point of limitation. The acts of Defendants Nos. 1 and 2 constitute continuing breaches within the meaning of Section 22 of the Limitation Act 1963 and a fresh period of limitation begins to run at every moment of time during the breach. Section 22 of the Limitation reads thus:

'22. Continuing breaches and torts- In the case of a continuing breach of contract in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.'

35.He then submits that several of the documents impeached came to the Plaintiffs’ knowledge only in 2007 and some even as late as 2010 - such as document (VIII) and others have not been disclosed to this day - documents at (VI) and (VII). All of these documents being interlinked, in his submission, there would be no question of applying a bar of limitation. The date of knowledge of the document is thus irrelevant.

36.He suggests in the alternative that what the Plaintiffs seek to do is to enforce a statutory right. The statute casts an obligation on the Defendants first to execute a conveyance of the disputed property in favour of the Plaintiffs and, secondly to make available the disputed property by putting the Plaintiffs in possession of it. The prayers for demolition of the compound wall and the challenge to the documents are all consequential. When the statute creates an obligation, Mr Ghelani submits, for every day that the Defendants do not fulfil their obligation, there is a fresh starting point of limitation. In support of this submission Mr Ghelani seeks to place reliance on the decision of a learned Single Judge of this Court in S Irani (Sorkhab) v M/s Dinshaw & Dinshaw & Ors (1999 Cri.L.J. 240)to suggest that an offence under Section 11 of the MAO Act constitutes a continuing offence attracting Section 472 of the Code of Criminal Procedure 1973. I am unable to see how this principle has any application at all to our purposes of limitation. Every day’s non-fulfilment of a statutory obligation may certainly give rise to a criminal liability under a particular statute. But this will not extend the time for the purposes of a civil suit; nor does it mean that each day the obligation is not fulfilled provides a new starting point of limitation, nor that on each day the obligation remains unfulfilled there is a fresh ‘right to sue’.

37. Mr Dwarkadas submits that what the Plaintiffs claim is in essence an escape from the covenants running with the land and contained in the documents executed between the Defendants Nos. 1 and 2. Those documents (including the Deed of Confirmation, the two conveyances of 1983 and 1984, the Deed of Rectification and the individual flat purchase agreements) are all registered.

38. Bombay Dyeing constructed Beach House some time before 1980. It was then that the swimming pool on Plot No. 1287C and garden on Plot No. 1287D were put in. This was the subject matter of the Deed Poll of 28th March 1980 - ensuring that Beach House had uninterrupted and exclusive use of the land on which swimming pool and garden stood. This reservation is reflected in every single subsequent document and it is this exclusive reservation that the Plaintiffs now seek to displace by challenging these documents. In paragraph 5(O), the Plaintiffs refer to the Agreement of 1986 with the 2nd Plaintiff (the President of the Condominium) for the purchase of Flat No. 11 in Beach Tower. The relevant portions of this document are set out in paragraph 7(xi) of the Affidavit in Reply to the Notice of Motion. This extracts make it clear that in the individual flat purchase agreements there is an express reference to the conveyance on 17th August 1983 and to the existence of Beach House on Plot No. 1286A, the swimming pool on 1287C and the garden on 1287D; with the further confirmation that the garden and swimming pool are for the exclusive use of the Beach House and for no part of the Beach Towers property. This is said to be a covenant running with the land. The Deeds of Apartment with individual flat purchasers also contain such references, and the relevant portions are set out in 7(xiii) of the Affidavit in Reply.

39. Mr Dwarkadas’s submission is that these covenants to which the Plaintiffs have agreed cannot be displaced in this roundabout manner. The Plaintiffs’ own documents - i.e., their own flat purchase agreements and apartment deeds - make it clear that they had knowledge of the conveyance and the covenants as also of the Deed Poll. The restrictions in the Deed Poll of 28th March 1980 specifically preserve to Bombay Dyeing and for the use of Beach House the swimming pool plot and the garden plot and other lands in the Beach Tower plot.

40. The consequence of this, Mr Dwarkadas says, and I think he is correct, that the Plaintiffs’ knowledge of the restrictions and reservations is no later than 1986, the year of the 2nd Plaintiff’s Agreement for Sale. This is when the Plaintiffs at the very latest learnt of the so-called restrictions of their rights or the transgression of their rights. This is when their right to sue first arose. The suit is, therefore, in his submission, entirely out of time.

41. The 1st Plaintiff Condominium was formed on 1st September 1989. This was by SCAL’s Deed of Declaration dated 1st September 1989, and this too makes reference to the conveyances of 1983 and 1984 and the Deed Poll of 28th March 1980. Thus, there is possibly an alternative date when the Plaintiffs became aware of the restrictions and reservations mentioned earlier, and this is no later than 1st September 1989.

42. As we have seen, separate Deeds of Apartment were executed by the owners of apartments. These Deeds of Apartments reference the earlier Conveyance Deeds and their serial numbers. Mr Ghelani’s complaint that some of the earlier documents were registered in Chennai is of no moment; that is where SCAL had its registered office. In any case, these particulars were all available in the various Deeds of Apartment including the 2nd Plaintiff’s Deed of Apartment dated 7th May 1990, and his Agreement for Sale of April 1986.

43. What the Plaintiffs seek is a dislodging of reservations that were always in place and were meant for the benefit or use of Beach House. It seems to me that Mr Dwarkadas is correct.

44. For any civil suit, time stops running only on the happening of one of two events: the filing of a suit, or the grant of an anti-suit injunction. Questions of renewed starting points of limitation, or of exclusion of time taken pursuing a cause elsewhere, stand apart. The first enquiry must, therefore, be as to when time began to run against the Plaintiffs. For this, one must look to what it is the plaint seeks, and which Article of the Limitation Act would correctly apply to it.

45. The Suit is principally one for declaration and then for consequential rights. It would be covered by Article 58 or Article 113 of the Schedule to the Limitation Act 1963. Article 58 requires a Suit to be filed within three years of the right to sue first accruing. Article 113, a residuary provision, provides a period of three years of limitation from the date when the right to sue accrues. It is impossible for the Plaintiffs to contend that their right to sue accrued only in September 2010, because that is when they first got hold of some documents. The previous documents mentioned earlier clearly show that the Plaintiffs and their constituent members were aware of the reservations embedded in these documents. From the documents that are on record it seems to me clear that the Plaintiffs were aware of the previous documents, or must be deemed to have been aware of them, because the documents to which they are themselves signatory referred to the preceding documents, the covenants, restrictions and reservations.

46. As to the Plaintiffs’ assertion that the copy of the Deed of Declaration by SCAL did not have annexed to it the necessary plans is an assertion that is required to be proved. The Plaintiffs chose to lead no evidence. This allegation is without proof. The Declaration Deed is of September 1989. It references the conveyances. Those conveyances and the declaration all being registered, the Plaintiffs are deemed to have had notice and knowledge.

47. Explanation (1) to Section 3 of the Transfer of Property Act makes it clear that when there is a registered instrument in respect of an immovable property there is a deemed notice from the date of registration. The registration serial numbers, registration dates and the particulars of eight documents are all mentioned specifically in the Plaintiffs’ own title documents. As we have seen, this puts the Plaintiffs’ date of knowledge well prior to three years before the Suit was filed.

48. Section 47 of the Registration Act also says that the registration relates back to the date of execution of the document.

49. Of particular relevance is the 1st Defendant’s Advocate’s letter of 7th February 2007 forwarding to the 1st Plaintiff certified copies of the conveyance deed of 17th August 1983, the conveyance deed of 14th March 1984 and the Rectification Deed of 3rd May 1984. This letter is annexed to the plaint. The letter provides the necessary registration numbers as well and the place of registration. These documents were with the Plaintiffs at least since 2007. Yet we find that these documents are amongst those sought to be impeached in prayer clause (a) of the present Suit.

50. The plaint itself makes for a strange reading. As I have noted the Plaintiffs became aware of the discrepancy in the area, and this is what they now want back, from their own Architect’s Report. This is of 2005. Then the plaint says that the Plaintiffs’ Advocates obtained copies of some of the documents in 2007. How it can then be contended that a Suit of 2012 is yet maintainable and within limitation to challenge those documents remains unexplained.

51. All of this means that for nearly twenty years after the date of SCAL’s declaration of 1989 there was no complaint in regard to any of these registered documents. Knowledge of these documents is well before August 2010. Whether one looks at Article 58 or Article 113, in my view, the Suit is clearly out of time.

52. There is a cause of action pleaded in paragraphs 14 and 27 of the plaint alleging fraud. Section 17(1)(d) of the Limitation Act reads thus:

'17. Effect of fraud or mistake-

(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act -

(a) ---

(b) ---

(c) ---

(d) where any document necessary to establish the right of the Plaintiff or Applicant has been fraudulently concealed from him;

the period of limitation shall not being to run until the Plaintiff or Applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the Plaintiff or the Applicant first had the means of producing the concealed document or compelling its production.

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.'

53. The plaint contains no detail of this so-called fraud. The allegation of fraud seems to be based on the documents itself and nothing beyond. This fraud, if required to save limitation, would need to be proved by leading evidence. The Plaintiffs chose not to do so. But this might beg the question. To the allegations of fraud and concealment, as Mr Seervai would have it, the answer is another question: 'What fraud? What concealment?' If the Plaintiffs chose not to read or examine their own documents, the consequences lie at their door.

54. As to the allegation that the documents assailed are illegal and contrary to law, there are no particulars at all. There is nothing shown as to how these documents transgressed a particular law.

55. Mr Dwarkadas submits also and again I think correctly that the case made out under Section 22 of the Limitation Act is completely misconceived. Section 22 refers to not to a continuing right but to a continuing wrong. This is a continuing source of injury. If the wrongful act causing injury is complete, there is no question of its continuance although its effect, and the damage that results, may indeed continue. The scope of this Section, corresponding to Section 23 of the previous Limitation Act, was explained by the Supreme Court in Balakrishna Savalram Poojari Waghmare & Ors v Shri Dhyaneshwar Maharaj Sansthan & Ors (AIR 1959 SC 798)in these words:

'31. Section 23 refers not to continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked. Where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of Section 23 in such a case.'

This has also been followed in Udai Shankar Awasthi v State of UP & Anr. (2013) 2 SCC 435).

56. Importantly Article 58 speaks of when the right to sue first accrues as opposed to the wording of Article 113 which speaks of a three year period when the right to sue accrues. This means

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that the Plaintiffs cannot look to subsequent dates to save the bar of limitation. 57. Returning to the plaint, prayers (a) and (b) are clearly the primary prayers and prayers (c) to (i) are consequential. As to the question of compound walls, there is nothing shown to demonstrate that the compound walls are illegal. Their continuance is not a continuing breach. The Plaintiffs knew of these compound walls at least since 2005. The walls are shown in the plan annexed to the 1983 conveyance and in later documents too. In any case, the Plaintiffs are very much on site and they could not have been unaware of the existence of these compound walls. 58. As to the relief in respect of the security cabin and toilet block mentioned in prayer clause (i), the right to sue for this relief arose on 21st October 2009 when the Plaintiffs by their Advocate’s letter at Exhibit 'V' (page 512) demanded possession. This was when the right to sue arose. A suit had to be brought within three years of that date. The result is that prayer clause (g) and consequential prayer (h) would be time barred. 59. The relief in prayer clause (j), quite apart from whether Plaintiffs have any locus to make any such demand in a civil suit, is also out of time. This would also be covered by Article 113 of the Limitation Act and the right to sue for this arose in 2005 or even earlier and certainly not within three year period before the Suit was brought. 60. This leaves the question of prayer for damages. This is clearly a claim for compensation for the breach alleged. If the main relief is time barred, then so is this one. 61. I am unable to understand how any part of this suit is in time. Mr Seervai is correct in saying there is neither fraud nor concealment. Three documents (or sets of documents) are crucial: the Agreements for Sale of 1986, SCAL’s MAO Act declaration of 1989 and the Apartment Deeds of 1990. Each of these mentions the covenants, restrictions and limitations now sought to be displaced. Each mentions the preceding documents instituting those covenants and restrictions. Knowledge of those restrictions and covenants is not and cannot be pegged to any later date. The Condominium was born with these covenants and restrictions; they were not later imposed. Each apartment owner took his apartment subject to those covenants and restrictions. If there was any doubt about the date of knowledge, it is surely put to rest by the Plaintiffs’ own assertion of alleged transgressions of their rights gleaned from their commissioned Architect’s report of 2005 and their advocates’ search of 2007. The right to sue for a declaration of title and ownership was thus in 1986 or, at the very latest, in 2007. In either case, this puts the suit out of time. 62. In any case, SCAL’s declaration of 1989 under the MAO Act is the Condominium’s ‘birth certificate’. It must be taken as a whole and this means accepting all that it says. That declaration cannot stand if what it says - the covenants, the two previous conveyances of 1983 and 1984 and so on - are challenged. If those preceding documents fall, so does the MAO Act declaration by SCAL in 1989. This is equally true of the Agreement for Sale for individual apartments of 1986 and the Apartment Deeds of 1990. These documents all contain unmistakable references to the preceding documents and the covenants running with the lands, restrictions, limitations and specifically mention the areas not conveyed to the Condominium. The Agreements for Sale and Apartment Deeds also specifically mention that the purchasers have satisfied themselves and have inspected the previous documents, and about this there is no explanation at all. This is a specific documentary statement as to knowledge. 63. Mr Ghelani’s submission that I must consider the plaint on a demurrer is incorrect. This is an issue under Section 9A of the CPC, not an application under Order VII Rule 11. The issue is of limitation, always a mixed question of fact and law. E. CONCLUSIONS & ORDER 64. In my judgment, the entire Suit and all the reliefs sought are beyond limitation. The Suit is dismissed. In the facts and circumstances of the case there will be no order as to costs. 65. In view of this, the Notice of Motion is also dismissed with no order as to costs.
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