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



Shanabhai Popatbhai Bharwad v/s Ballard Project Pvt. Ltd & Others


Company & Directors' Information:- S K B PROJECT (INDIA) PRIVATE LIMITED [Active] CIN = U45202MP2008PTC020457

Company & Directors' Information:- A J PROJECT PRIVATE LIMITED [Active] CIN = U70101WB2006PTC110040

Company & Directors' Information:- M B S PROJECT PRIVATE LIMITED [Strike Off] CIN = U45209GJ2000PTC038147

Company & Directors' Information:- K C PROJECT INDIA PRIVATE LIMITED [Active] CIN = U55101DL1997PTC088558

Company & Directors' Information:- A. H. PROJECT PRIVATE LIMITED [Active] CIN = U45400WB2010PTC141970

Company & Directors' Information:- H E F PROJECT PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1995PTC069794

Company & Directors' Information:- B J S PROJECT PRIVATE LIMITED [Active] CIN = U74900WB2015PTC206605

Company & Directors' Information:- PROJECT Q AND S PRIVATE LIMITED [Active] CIN = U74999HR2020PTC086437

Company & Directors' Information:- K D PROJECT PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC209307

Company & Directors' Information:- E PROJECT PRIVATE LIMITED [Active] CIN = U72300HR2015PTC057142

    First Appeal No. 2812 of 2017 with Civil Application (For Stay) No. 1 of 2017

    Decided On, 24 February 2020

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE A.J. DESAI

    For the Appellant: Mehul S. Shah, Senior Counsel Assisted by Kartikkumar K. Joshi, Advocate. For the Defendants: R.S. Sanjanwala, Senior Counsel Assisted by Sunil S. Joshi, Digpalsngh H. Rathore, Advocates.



Judgment Text


Cav Judgment:

1. ADMIT. Learned advocate Mr. Sunil S. Joshi waives service of admission on behalf of defendant No.1. With the consent of learned advocates appearing for the respective parties, the appeal is taken up for final hearing.

2. The present appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') has been filed by the appellant - original plaintiff challenging the order dated 29.8.2016 passed by learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) (hereinafter referred to as 'the learned Trial Court') below application Exh.17 in Special Civil Suit No.708 of 2014 by which the learned Trial Court has accepted application Exh.17 filed by the respondent No.1 herein - original defendant No.1 under Order VII, Rule 11 (d) of the Code rejecting the plaint, having come to the conclusion that the suit filed by the appellant - plaintiff has been filed beyond the prescribed period underArticle 54of theLimitation Act, 1963 (hereinafter referred to as 'Limitation Act').

3. For the sake of convenience and brevity, the parties to the present proceedings are referred to as per their original position in the suit before the learned Trial Court i.e. appellant - plaintiff and respondent No.1 - defendant No.1, respondent Nos.2 to 9 - defendant Nos.2 to 9.

4. In response to the notice issued by this Court, the respondents have appeared through learned advocates. The defendant No.1 has opposed the appeal through his advocate whereas defendant Nos.2 to 9 have not argued the matter.

5. The facts of the case are that the plaintiff filed a Civil Suit, being Special Civil Suit No.708 of 2014 before the learned to sell dated 2.5.2007 with regard to an agricultural land bearing Survey No.204 of village Odhav, Tal. City, Dist. Ahmedabad admeasuring 23-5-73 Hectare - RA - Sq. Mts. (23,573 Sq. Mts.) for which entire amount of sale consideration i.e. Rs.10,51,000/- was paid by the plaintiff by executing another supplementary deed on the same day i.e. 2.5.2007. A decree was also prayed that the registered Sale Deed having No.12726 of 2008 dated 23.10.2008 executed by the original owners i.e. defendant Nos.2 to 9 in favour of defendant No.1 be declared as null and void.

6. The said suit was filed on 8.10.2014. The defendant No.1 filed an application Exh.17 on 20.4.2015 under the provisions of Order VII, Rule 11 (d) of the Code requesting the learned Trial Court to reject the plaint on the ground that the suit has been filed beyond the prescribed period of limitation provided inArticle 54of theLimitation Act.

7. The said application Exh.17 was opposed by the plaintiff. The learned Trial Court after giving opportunity of hearing to the learned advocates appearing for the respective parties, passed the impugned order and rejected the plaint on the ground that the suit was filed beyond the prescribed period of limitation of three years, prescribed underArticle 54ofLimitation Act.

8. Hence the present appeal.

9. Mr. Mehul S. Shah, learned Senior Counsel assisted by Mr. K. K. Joshi appearing for the appellant - plaintiff has vehemently submitted that the learned Trial Court has committed grave error in accepting the application of the defendant No.1. He would further submit that the learned Trial Court has committed grave error in coming to the conclusion that the time was the essence of the contract and it was fixed in the agreement to sell entered into between the parties. He would further submit that the learned Trial Court has wrongly interpreted the terms and conditions recorded in the agreement to sell and supplementary deed, both executed on 2.5.2007.

9.1 Mr. Shah would further submit that if the agreement to sell and supplementary deed are closely scrutinized and the conduct of the parties are perused and closely scrutinized, time was not the essence of the contract. He would further submit that the suit land was an agricultural parcel of land and, therefore, the said aspect was taken into consideration while executing the agreement to sell. By taking me through the first condition of the agreement to sell dated 2.5.2007, he would submit that time to execute the sale deed was 30 months from the said date, subject to fulfillment of other conditions of the agreement to sell. The said clause itself imposes condition upon the original land owners that they were supposed to and bound to get the land converted from new tenure (restricted land) to old tenure land. The only condition imposed upon the plaintiff was to cooperate for such clearance and conversion. At no point of time, any action was taken by the original land owners to get the suit land converted to old tenure land. He would further submit that as per the said condition of the agreement to sell, the plaintiff was never called upon to pay any expenses and only condition imposed upon the plaintiff was to cooperate in different types of proceedings which are required to be initiated to get it cleared under various land laws. He would further submit that though it has been mentioned in condition No.7 that the possession of the land was not handed over, however, by supplementary deed dated 2.5.2007 (same day), when the entire consideration was paid by the plaintiff to the original land owners, the possession of the open agricultural suit land was handed over to the plaintiff. A specific observation was made in supplementary agreement that the possession has been handed over to the plaintiff.

He would further submit that the plaintiff as well as original land owners were aware that prior to entering into the agreement to sell, the original land owners had executed an agreement to sell in favour of one Kaveri (Odhav) Cooperative Housing Society (Proposed), however, the plaintiff had agreed that the amount liable to be paid to the said Kaveri Society was to be paid by the plaintiff and accordingly, an amount of Rs.95 Lacs was paid to the said Society and in response to the same, agreement to sell which was entered into between the original land owners and the said Kaveri Society was cancelled and original papers regarding that transaction were handed over to the plaintiff, which were produced on the record of the suit in support of the case put forward by the plaintiff.

9.2 Mr. Shah would further submit that the plaintiff had also issued a public notice in the nature of advertisement in a daily newspaper on 28.5.2008, having executed an agreement to sell with the original owners. In response to the said public notice, nobody raised any objection about the same. He would further submit that the possession of the suit land was handed over to the plaintiff and being an agricultural land, the same was kept as it is for considerable long time. During the said period, the plaintiff requested the original owners to get all the necessary permissions under various land laws and get the Sale Deed executed, however, the defendants No.2 to 9 - original owners were assuring the plaintiff to do the needful at the earliest.

9.3 Mr. Shah would further submit that when the plaintiff seriously insisted the original owners to execute the Sale Deed and when they bluntly refused, therefore, the plaintiff raised doubts about their intention and inquired about the status of the land with various departments, where the plaintiff learnt that the land in question was sold by the original owners by registered Sale Deed on 23.10.2008 in favour of defendant No.1. Having come to know about the same in the year 2014, a legal notice dated 10.7.2014 was immediately served to the original owners to execute the Sale Deed and cancelling the registered Sale Deed which was executed in favour of defendant No.1. In response to the said legal notice, an evasive reply was given by the original land owners and, therefore, the plaintiff was compelled to file the suit. He would further submit that even when the suit was filed in the year 2014, the suit land i.e. big parcel of agricultural land was a barren land and, therefore, there was no activity upon the land by the defendant No.1 Company though the Company had purchased the land in question way back in the year 2008. Immediately having come to know about the transfer of the suit land, the suit has been filed in the year 2014 itself and, therefore, the suit has been filed within the prescribed period of limitation as perArticle 54of theLimitation Act.

9.4. By taking me through the notice which has been produced along with the plaint, he would submit that various aspects like reference of agreement to sell, supplementary agreement, transaction cancelled with Kaveri Society etc., have been categorically alleged. However, an evasive reply has been given by the original owners denying the existence of any agreement to sell of 2007. By taking me through the plaint and particularly with regard to the reasons for filing the suit, he would submit that there is elaborate explanation about how the plaintiff came to know about the sale deed of 2008 only in the year 2014 and has filed the suit immediately on 8.10.2014. He would furthersubmit that underArticle 54of theLimitation Act, the time to file a suit for specific performance is three years and the date would start when the date is fixed for the performance or if no such date is fixed and when the plaintiff has notice that performance is refused. He would further submit that there was no date fixed for the performance though there is a reference of 30 months in a clause, but it also clarify that the same would be subject to compliance of other conditions. Therefore, the learned Trial Court has committed an error that the plaintiff ought to have filed the suit immediately on completion of 30 months from the date of execution of the agreement i.e. within a prescribed period of 3 years thereof. He would further submit that when it has been categorically averred in the plaint that the original owners bluntly refused to execute the Sale Deed by replying to notice and had declared that the suit land is sold to defendant No.1, the plaintiff came to know that the performance is refused by the executor of the agreement to sell and from the said date, the limitation would start and, therefore, the suit is filed within a period of 3 years. Therefore, the learned Trial Court ought not to have rejected the plaint under Order VII, Rule 11 (d) of the Code accepting that the suit is barred by law underLimitation Act. He would further submit that the defendant No.1 before purchasing the property had not issued any notice about its intention to purchase the suit land neither they had responded to the public notice issued by the plaintiff in a daily newspaper on 28.5.2008. The property is purchased by the defendant No.1 subsequent to the public notice i.e. in the month of October 2018 and, therefore, it is presumed that the defendant No.1 was aware about the rights of the plaintiff having agreement to sell in his favour.

9.5 In such circumstances, prima facie, suggest that the learned Trial Court ought to have believed in absence of any other material that the plaintiff came to know about execution of the SaleDeed dated 23.10.2008 by the original land owners in favour of defendant No.1 only in the year 2014. In support of his submissions, Mr. Shah has relied on the decision of the Hon'ble Supreme Court in the case ofPanchanan Dhara and others v. Monmatha Nath Maity (Dead) through Lrs. And another, (2006) 5 SCC 340. He would submit that the Hon'ble Supreme Court has held that filing of a suit for specific performance would certainly be governed underArticle 54of theLimitation Actand shall begin from the date fixed for the performance of the contract and the contract is to be performed by both the parties to the agreement and if such performance which is to be not carried out by one of the parties, the limitation would start only on refusal by such party. He would submit that it has also been held in the said case that nature of the agreement is required to be examined and understood the terms and conditions of such agreement. If the Court finds that it is a mixed question of law and facts, the same can be decided at the end of trial. He would submit that in the present case, certain acts were required to be fulfilled by the defendant Nos.2 to 9 - original land owners which were not performed since long and the plaintiff only came to know about refusal when the plaintiff called upon the original land owners to execute the Sale Deed by issuing a public notice in the year 2008 itself. In support of this submission, he has relied on the decision of the Hon'ble Supreme Court in the case ofSurjit Kaur Gill and another v. Adarsh Kaur Gill and another, (2014) 16 SCC 125.

9.6 Mr. Shah has further relied on the decision of the Hon'ble Supreme Court in the case ofRathnavathi and another v. Kavita Ganeshamdas, (2015) 5 SCC 223, wherein it has been held by the Hon'ble Supreme Court that in absence of any fixed date of performance, the limitation would start only from the date when the plaintiff had notice of refusal of the performance. He would further submit that the learned Trial Court has committed anerror in coming to the conclusion that pursuant to the transfer of the property in favour of the respondent No.1 and entries mutated in the revenue record in the year 2008, presumption is to be drawn that the plaintiff was aware about such transaction which had taken place in the year 2008 whereas the suit has been filed in the year 2014. He has also relied on the decision of the Hon'ble Supreme Court in the case of Ahmadsahab Abdul Mulla (2) (Dead) by Proposed Lrs. v. Bibijan and others, (2009) 5 SCC

462. 9.7 Mr. Shah has further relied on the decision of the Hon'ble Supreme Court in the case ofDaya Singh and another v. Gurdev Singh (Dead) by Lrs. And others, (2010) 2 SCC 194 wherein it has been held that it is not expected from a person to check the revenue records every day and mere adverse entry in the revenue record, the period of limitation would not start from the date of such mutation.

9.8 Mr. Shah would further submit thatArticle 54of theLimitation Actcan be divided into two parts i.e. first part is three years from the date fixed for the performance and second part is if no such date is fixed, the limitation would start of three years when the plaintiff has notice that the performance is refused. By taking me through the plaint, he would submit that the cause of action arose only when there was refusal on the part of the original land owners to execute the Sale Deed by replying the notice in the year 2014 and immediately, suit has been filed and, therefore, the learned Trial Court has committed an error in coming to the conclusion that there was fixed date for performing the contract i.e. of 30 months. In support of this submission, Mr. Shah has relied on the decision of the Hon'ble Supreme Court in the case ofMadina Begum and another v. Shiv Murti Prasad Pandey and others, (2016) 15 SCC 322.

9.9 Mr. Shah would further submit that rejection of a plaint by Civil Court while exercising power under Order VII, Rule 11 of the Code and rejecting a plaint at the outset, is of a drastic nature and the Court while dealing with the same, only averments made in the plaint have to be read as a whole. In the present case, a contention has been specifically raised in the plaint that on several occasions, the original land owners were requested to execute the Sale Deed since the total consideration was paid and possession was handed over to the plaintiff. Therefore, the learned Trial Court ought not to have rejected the plaint under Order VII, Rule 11 (d) when the plaintiff had specifically raised a contention about knowledge of refusal of the execution of the sale deed by the original land owners in the year 2014. In support of this submission, he has relied on the decision of the Hon'ble Supreme Court in the case of P. V. Guru Raj Reddy represented by GPA Laxmi Narayan Reddy and another v. P. Neeradha Reddy and others, (2015) 8 SCC 331 wherein it has been held that the plaint can be rejected only if the averments made therein ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law. He has also relied on the decision of the Hon'ble Supreme Court in the case ofUrvashiben and another v. Krishnakant Manuprasad Trivedi, 2019 (1) SCALE

29. 9.10 By relying on the decision of the Hon'ble Supreme Court in the case of Chhotanben and another v. Kiritbhai Jalkrushnabhai Thakkar and others, (2018) 6 SCC 42, he would submit that the above ratio has been reconfirmed by the Hon'ble Supreme Court.

9.11 He has also relied on the decision of this Court in the case of Bahadurbhai Laljibhai Malhotra v. Ambalal Joitaramheir of Joitaram Ranchhoddas and others, 56 (3) GLR 2760 wherein it has been held that mere subsequent sale that too by registered Sale Deed would not apply with regard to limitation unless there are facts suggesting willful lack of inquiry or negligence. He would further submit that the suit land was admittedly open agricultural land till the suit was filed before the learned Trial Court.

9.12 He would further submit that if the plaint is perused, the learned Trial Court ought not to have rejected the application under Order VII, Rule 11 (d). However, after perusing the relevant documents which may be produced by all the parties concerned, the learned Trial Court may frame appropriate issues including the issue of limitation and can come to proper findings even after framing preliminary issue about limitation and that too after recording evidence of the parties. He would further submit that in this case, the appellant has prima facie established that the suit was filed immediately when the original land owners refused to perform their part of contract. He, therefore, would submit that the present appeal may be allowed and the impugned order of the learned Trial Court may be quashed and set aside and the suit be restored and the learned Trial Court may be directed to proceed further with the suit in accordance with law.

10. On the other hand, Mr. R.S. Sanjanwala, learned Senior Counsel appearing with learned advocate Mr. Sunil Joshi for the respondent No.1 has vehemently opposed this appeal and would submit that the learned Trial Court has committed no error and therefore, impugned judgment and order does not call for any interference by this Court. By relying upon the first clause of the agreement to sell dated 2.5.2007, he would submit that time was the essence of the contract. The plaintiff was bound to execute the Sale Deed within a period of 30 months from the date of the agreement to sell which was executed on 2.5.2007. He would further submit that as per the said agreement dated 2.5.2007, the appellant - plaintiff ought to have got the Sale Deed executed on or before 1.11.2009 and in absence of such inaction on the part of the original land owners, the plaintiff ought to have filed a suit within a period of three years as perArticle 54of theLimitation Acti.e. suit should have been filed on or before 2.11.2012 whereas the suit has been filed in the year 2014. Therefore, the learned Trial Court has rightly calculated the period of limitation.

10.1 Mr. Sanjanwala would further submit that time was the essence of the contract. Therefore, the decisions relied upon by Mr. Shah in support of the case of the appellant are not applicable to the facts of the present case. By taking me through the agreement to sell dated 2.5.2007 and the supplementary agreement executed on the same day, he would submit that the said document creates doubt about the intention of the parties since supplementary agreement is typed in April 2007 whereas the agreement is of May 2007. The said thing has been considered by the learned Trial Court and, therefore, there is no need to interfere with the findings of the learned Trial Court. He would further submit that the respondent No.1 has purchased the suit land by a registered Sale Deed, executed way back on 23.10.2008 and has paid the consideration to the tune of Rs.5,65,76,000/- (Rupees Five Crores Sixty Five Lacs Seventy Six Thousand Only). Subsequent thereto, appropriate entries were mutated and the suit land was converted into non-agricultural purposes by competent Revenue authority and, therefore, it is presumed that the appellant was aware about the subsequent sale transactions and other proceedings under various revenue laws.

10.2 By taking me through the notice issued to the original land owners at the instance of the plaintiff, Mr. Sanjanwala wouldsubmit that though it has been alleged in the notice in paragraph 10 that the suit land has been sold to the respondent No.1 on 23.10.2008, the plaintiff came to know about the same only in the year 2014 i.e. first time when he checked the Government register which cannot be believed. He would further submit that though a detailed notice has been served to the original land owners to bring the case within the period of limitation, the plaint is cleverly drafted so that plaint cannot be rejected only on the ground of limitation. In support of this submission, he has relied on the decision of the Hon'ble Supreme Court dated 13.3.2019 rendered in Civil Appeal No.2960 of 2019 in the case ofRaghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Lrs., wherein it has been held that mere clever drafting of a plaint would not debar the Court to exercise his power under Order VII, Rule 11 (d).

10.3 By relying on a decision of the Hon'ble Supreme Court in the case of Ahmadsahab Abdul Mulla (2) (Dead) by Proposed Lrs. v. Bibijan and others (Supra), he would submit that the word "fixed" in essence is elaborately explained by the Hon'ble Supreme Court and has held that in the contract cases, it means having final or crystalised form or character not subject to change or fluctuation. In the present case, it was a period of 30 months within which sale deed was to be executed. Therefore, first part ofArticle 54would be applicable. He has also relied on the decision of the Hon'ble Supreme Court in the case ofMadina Begum and another v. Shiv Murti Prasad Pandey and others (Supra) and would submit that when the date is fixed, the first part ofArticle 54would be applicable and, therefore, the learned Trial Court has rightly rejected the plaint while exercising power under Order VII, Rule 11 (d).

10.4 Mr. Sanjanwala has also relied on the oral judgment dated 15.10.2018 rendered by the coordinate Bench of this Court in the case ofLaxmiben Mafatlal Patel v. Jayantibhai Mafatbhai Pateland 10, rendered in Second Appeal No.273 of 2017 and would submit that if the cause of action pleaded in the plaint is vague as anything, the Court can exercise his powers under Order VII, Rule 11 of the Code.

10.5 He has further relied on the decision of the coordinate Bench of this Court dated 16-17.03.2017 rendered in the case of Hemendra Ishwarbhai Patel through POA Piyush B. Trivedi and 1 v. Gokulbhai Shanabhai - Decd. Through legal heirs and 14, Civil Revision Application No.302 of 2013. He would submit that if it is found by the Court that the plaintiffs have conveniently remained silent as to on which date they came to know about denial of the performance of the agreement and if time is the essence of the contract, a suit filed at belated stage can be thrown away while exercising powers under Order VII, Rule 11 (d).

11. I have heard learned advocates appearing for the respective parties and perused the Records and Proceedings received from the learned Trial Court as well as the judgment impugned in the present appeal.

12. The moot question involved in this appeal is whether in the agreement to sell dated 2.5.2007 for purchase of the suit land, time was the essence of the contract or not and whether the suit even otherwise fall under second part ofArticle 54of theLimitation Actor not ?

13. It is an admitted fact that the suit land belongs to respondent Nos.2 to 9 with whom the plaintiff had executed agreement to sell dated 2.5.2007. If the same is perused, it appears that the price of the suit land was fixed at Rs.10.51 Lacs and it was recorded that, on that day Rs.5.51 Lacs was paid by installments. It was further agreed that the said amount shall be adjusted against the total consideration at the time of execution of the Sale Deed. Thereafter, supplementary agreement was executed on the same day i.e. 2.5.2007 by which the original land owners have declared and accepted that remaining amount of Rs.5 Lacs had also been received by them and have received the total sale consideration of Rs.10.51 Lacs. It is also declared and accepted that vacant and peaceful possession of agricultural land has also been handed over to the plaintiff.

In the above background of facts and to deal with the question of Limitation and when the suit came to be filed for decree of specific performance of agreement to sell, the agreement to sell and supplementary agreement which are on record of the suit are required to be closely scrutinized. Therefore, the conditions of the agreement to sell which are relevant, particularly condition Nos.1 and 10 which are in Gujarati language and the same is translated, the same read as under :-

"(1) Duration of this agreement to sell is fixed for 30 (thirty) months subject to other terms. The Purchaser shall have to convert aforesaid land from new tenure to old tenure within aforesaid duration. The Seller shall give signature and appear as witness in that regard and submit all documents as per the demand of the Purchaser. The Purchaser shall bear the cost for the same.

(2) to (9) .........................

(10) The purchaser shall be entitled to get termsand conditions of this agreement for sell implemented by filing Specific Performance Suit in the court at the cost and risk of the sellers, if the sellers cause delay in the implementation of the same. Under such circumstances, the purchasers shall be entitled to recover the earnest money and money paid towards sale consideration from time to time and towards all other expenses and cost of damages."

14. The first condition if scrutinized at this stage, the validity of the agreement was 30 months from the date of execution of the agreement to sell, subject to other conditions. It further provides that original land owners had to get appropriate permissions to convert the land from new tenure land (restricted land) to old tenure land since the plaintiff though an agriculturist can purchase such land only if the land is converted to old tenure land. The above condition also makes it obligatory upon the original land owners that they have to remain present before the relevant authorities and are supposed to produce relevant documentary evidence.

15. It is an undisputed fact that the original land owners never supplied any order from the competent authority by which the suit land was converted from new tenure land to old tenure land neither any documents were supplied to the plaintiff. Therefore, even though the validity of the agreement to sell dated 2.5.2007 was of 30 months, the same validity would remain in existence unless all conditions are fulfilled by the respective parties. Therefore, when there is a period mentioned for execution of Sale Deed subject to fulfillment of other conditions, in my opinion, such agreement cannot be said that there was a fixed date for performance of the contract and it also cannot be said that timewas the essence of the contract. In condition No.7 of the agreement to sell, it was referred that the possession of the suit land shall be handed over at the time of execution. However, if the supplementary agreement is perused, after receiving the entire amount, the possession of the suit land was handed over to the plaintiff.

It was specifically observed by imposing a condition No.10 by giving a right to the purchaser that the purchaser would be entitled for filing a suit for specific performance if there is delay on the part of the original land owners to abide by the conditions recorded in the agreement. Condition No.13 of the agreement also imposes restrictions upon the original land owners to create any third party rights.

16. As far as applicability ofArticle 54of theLimitation Actis concerned, the same is reproduced as under :-

Description of suit Period of Time from which period

Limitation begins to run

54. For specific Three years (1) The date fixed for the

performance of a performance, or

contract. (2) if no such date is

fixed, when the plaintiff

has notice that

performance is refused.

17. Considering prima facie reading of the agreement to sell dated 2.5.2007 and supplementary agreement, I am of the opinion that there is no date fixed for the performance and, therefore, the decision relied on by learned Senior Counsel Mr. Mehul Shah in the case ofPanchanan Dhara and others v. Monmatha Nath Maity (Dead) through Lrs. And another (Supra) would be applicable to the facts of the present case.

Paragraphs 22 and 27 of the said decision read as under :-

"22. A bare perusal ofArticle 54of theLimitation Actwould show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms ofArticle 54of theLimitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the first respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of (sic time for performance of a) contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company only on 21-8-1985. The suit was filed soon thereafter. The submission of Mr. Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the second respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18-4-1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title.

27. Performance of a contract may be dependent upon several factors including grant of permission by the statutory authority in appropriate cases. If a certain statutory formality is required to be complied with or permission is required to be obtained, a deed of sale cannot be registered till the said requirements are complied with. In a given situation, the vendor may not be permitted to take advantage of his own wrong in not taking steps for complying with the statutory provisions and then to raise a plea of limitation."

18. Similarly ratio laid down by the Hon'ble Supreme Court in the case of Rathnavathi and another v. Kavita Ganeshamdas (Supra) is also applicable. Paragraphs 42 and 43 of the said decision read as under :-

"42. A mere reading ofArticle 54of theLimitation Actwould show that if the date is fixed for performance of the agreement, then non-

compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement.

43. The case at hand admittedly does not fall in the first category ofArticle 54of theLimitation Actbecause as observed supra, no date was fixed in the agreement for its performance. The case would be governed by the second category viz. when the plaintiff has a notice that performance is refused."

19. As far as applicability of second part ofArticle 54of theLimitation Actis concerned, I have gone through the notice dated 10.7.2014 issued by the advocate at the instance of the plaintiff before filing of the suit and considering the refusal by the original land owners vide reply in the year 2014 itself, the suit was filed by the plaintiff immediately after receiving refusal response from the original land owners. The plaintiff along with the plaint has already produced document in the nature of public notice dated 28.5.2008 issued through advocate and published in the newspaper by which it was declared that the plaintiff has already executed agreement to sell and supplementary agreement as well as indemnity bond and declaration and has also declared that the possession of the suit land has been handed over to the plaintiff and public at large was put at guard before dealing with the land in question. It is an admitted position that the suit land admeasuring 23-5-73 Hectare - RA - Sq. Mts. situated at village Odhav which is now part of Ahmedabad city. It is an admitted position that there was no change with regard to physical status of the suit land till some activities started by the respondent No.1 in the year 2017 that too subsequent to filing of the suit, though the same was purchased way back on 23.10.2008 i.e. after public notice dated 28.5.2008. On query, it was admitted on behalf of the respondent No.1 that before purchasing the suit land from the original land owners, no public advertisement was issued at his instance about his intention of purchasing the property. However, the same can be considered at appropriate time since the question for consideration is about provisions ofLimitation Act.

20. As far as the pleading by the plaintiff about the knowledge about sale of the transfer of the property in the name of respondent No.1 is concerned, plain reading of plaint is to be read. In my opinion, this is a triable issue and in the present facts of the case, the observations made by the Hon'ble Supreme Court in the decision in the case of Chhotanben and another v. Kiritbhai Jalkrushnabhai Thakkar and others (Supra) would be applicable. Relevant paragraph 15 of the said decision reads as under :-

"15. What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11 (d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18-10-1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellant - plaintiffs is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers, original Defendants 1 and 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendants 3 to 6. They acquired that knowledge on 26-12- 2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realized the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendants 1 and 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half () portion of the land so designated towards their share. However, when they realised that the original Defenadnts 1 and 2 would not pay any heed to their request, they had no other option but to approach the Court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the trial court opined that it was a triable issue and declined to accept the application filed by Respondent 1 - Defendant 5 for rejection of the plaint under Order 7 Rule 11(d). That view commends to us."

21. Same is the view taken by the Hon'ble Supreme Court in the decision in the case of Urvashiben and another v. Krishnakant Manuprasad Trivedi (Supra). Relevant paragraphs 11, 12 and 14 of the said decision read as under :-

"11. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into.Article 54of theLimitation Act, 1963 prescribes the limitation of three years, for suits for specific performance. The said Article reads as under :-

Suits for 3 years The date fixed for the

specific performance, or, if no

performa such date is fixed, when

nce the plaintiff has notice

that performance is

refused.

12. From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the Sale Deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under O.VII

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R.11(d) of CPC. 14. On the other hand, judgment in the case Gunwantbhai (supra) this Court has held as under :- "8. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed byArticle 54of theLimitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond thre years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof. We have explained the position in the recent decision inR.K. Parvtharaj Gupta v. K.C. Jayadeva Reddy(2002) 2 SCC 428. In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they did not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial." In the aforesaid case, it is clearly held that in cases falling in second limb ofArticle 54finding can be recorded only after recording evidence. The said view expressed by this Court supports the case of the respondent-plaintiff. In the judgment in the case of Rathnavathi (supra) in paragraphs 42 and 43 it was clearly held that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement. In the judgment in the case of Ahmadsahab Abdul Mulla(2)(Dead) by Proposed LRs. v. Bibijan & Ors.14 while interpretingArticle 54of theLimitation Act, it is held that words "date fixed for the performance" is a crystallised notion. The second part "time from which period begins to run" refers to a case where no such date is fixed. In the case of Balsaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors.15 and Chhotanben (supra) this Court clearly held that issue of limitation, being a mixed question of fact and law, is to be decided only after evidence is adduced." 22. In view of the above referred decisions as well as considering the facts and circumstances of the case and considering the agreement to sell and the conditions thereof, I am of the opinion that the learned Trial Court ought not to have rejected the plaint under Order VII, Rule 11 (d) of the Code. Hence, the present appeal is allowed. The impugned order dated 29.8.2016 passed by learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) below application Exh.17 in Special Civil Suit No.708 of 2014 is hereby quashed and set aside. Special Civil Suit No.708 of 2014 is revived. The learned Trial Court shall proceed further with the suit in accordance with law. In view of disposal of main appeal, connected civil application also stands disposed of. 23. It is hereby made clear that this Court has not examined the merits of the case since the plaint was rejected under Order VII, Rule 11 (d). Hence, it would be open for the parties to raise available contentions in the written statement or may file appropriate applications at relevant time. 24. Registry is hereby directed to send the Records and Proceedings to the learned Trial Court forthwith. 25. Upon pronouncement of the judgment, request made by learned advocate appearing for the respondent No.1 to stay the operation of the judgment is refused.
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