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2000 DIGILAW 472 (DEL)

GOBIND RAM v. AMAR SINGH

2000-05-26

K.S.GUPTA

body2000
K. S. GUPTA, J ( 1 ) DEFENDANTS have filed this application under Order VI, Rule 17 read with Section151 Civil Procedure Code for incorporating the following prayer clause at the foot of para NO. 17 ofthe written statement:- "a decree be passed against the Plaintiff whereby declaring that the allegedcancellation of power of attorney is wholly illegal and contrary to law. Befurther ordered that the cancellation is of no effect and the original power ofattorney executed by the Plaintiff in favour of the Defendant No. 3 is still validand can be acted upon as per its construction. "consequential amendments have also been sought in the title and para No. 16of the written statement. ( 2 ) PLAINTIFF has contested the application by filing a reply. The two grounds on whichthe amendments sought are opposed are that the same is barred by limitation andthat in suit No. 1505 / 84 which defendants 1 and 2 have filed against the plaintiff forspecific performance of the agreement to sell dated 9/08/1978, they have alsoprayed for a declaration that the cancellation of general power of attorney dated 9/08/1978 in favour of defendant No. 3 is void. Said suit No. 1505/84 wasconsolidated with the present suit by the order dated 1 1/09/1985. ( 3 ) SUIT was filed by the plaintiff inter alia alleging that he is the sub lessee of Plotno. 1030 (measuring 525 sq. yds.) in Block d in the lay out plan of New Friends Cooperative Hpuse Building Society Ltd. , and the owner of the superstructure constructedthereon. Under an agreement to sell dated 9/08/1978, the plaintiff agreed tosell the said property to defendants 1 and 2 for a sum of Rs. 2,25,000. 00 and on receipt ofrs. 1,25,000. 00out of that amount, the plaintiff delivered the possession of theproperty to said defendants on or about 9/08/1978. In addition to execution ofthe said agreement to sell, the plaintiff also executed a general power of attorney on 9/08/1978 in favour of defendant No. 3, nominee of defendants 1 and 2. It isalleged that defendants 1 and 2 committed defaults in performing their part of theobligation under the said agreement to sell and the same thus stood cancelled andsaid amount of Rs. 1,25,000. 00 paid by defendants 1 and 2 was forfeited by the plaintiff. It isalleged that defendants 1 and 2 committed defaults in performing their part of theobligation under the said agreement to sell and the same thus stood cancelled andsaid amount of Rs. 1,25,000. 00 paid by defendants 1 and 2 was forfeited by the plaintiff. Plaintiff also cancelled the said power of attorney dated 9/08/1978 given infavour of defendant No. 3 at the instance of Defendants 1 and 2 by a deed ofcancellation dated 2/05/1979. Defendants 1 and 2 have not delivered the possessionof said property to the plaintiff despite requests made by the plaintiff. Reliefs claimedin the suit are tor recovery of possession of the said property and a sum of Rs. 10,500. 00. Direction has also been sought tor conducting an enquiry as to the mesneprofits in regard to the said property from 9/08/1978 onwards. ( 4 ) IN the joint written statement filed by defendants 1 to 3, it is not disputed that theplaintiff is a sub lessee of said plot No. 1030 and owner of the superstructure raisedthereon, that under an agreement to sell dated 9/08/1978, the plaintiff agreedto sell the said property to defendants 1 and 2 for a consideration of Rs. 2,25,000. 00; thata power of attorney was executed by the plaintiff in favour of defendant No. 3 on 9/08/1978 and that on receipt of Rs. 1,25,000. 00, possession of the property wasdelivered by the plaintiff to Defendants 1 and 2 on or about 9/08/1978, asalleged. It is further not denied by the defendants that the plaintiff cancelled the saidpower of attorney in favour of Defendant No. 3. It is, however, pleaded that Defendants1 and 2 did not commit any default on the basis of which agreement to sell and theirrevocable power of attorney could be cancelled and amount of Rs. 1,25,000. 00forfeited by the plaintiff. Cancellation of said irrevocable power of attorney is allegedto be in contravention of the terms and conditions of the said agreement to sell. ( 5 ) FACED with the objection of limitation taken in the reply to the amendmentapplication, it was urged by Sh. Jagjit Singh appearing for the defendants that all thefacts and the cause of action leading to the filing of the counter claim have alreadybeen stated in the written statement and the provisions of Section 3 of the Limitationact, therefore, cannot come in the way of the defendants in seeking the proposedamendments. Jagjit Singh appearing for the defendants that all thefacts and the cause of action leading to the filing of the counter claim have alreadybeen stated in the written statement and the provisions of Section 3 of the Limitationact, therefore, cannot come in the way of the defendants in seeking the proposedamendments. Reliance was placed on the decisions in East India Hotels Vs. Ob. Int. Hotel Employees, 1995 R. L. R. 149 and Nalini Dutta Vs. Naginder Sharma,71 (1997) DLT 101. On the contrary relying on the decisions in M/s. Internationalbuilding and Furnishing Company (Cal) Pvt. Ltd. , Vs. Indian Oil Corporation Ltd. ,84 (2000) DLT 483 and Muni Lal Vs. The Oriental Fire and General Insurancecompany Ltd. and Another, AIR 1996 SC 642 , it was contended by Sh. Ishwarsahai, Sr. Advocate for the plaintiff that the proposed amendment in para No. 17 ofthe written statement which seeks to raise a counter claim cannot be legally allowedbeing barred by limitation under Section 3 of the Limitation Act. Admittedly, generalpower of attorney in question in favour of Defendant No. 3 was cancelled by theplaintiff on 2/05/1979 and the suit was thereafter filed on 18/04/1980 and thepresent application seeking amendment was moved by the defendants on 2 8/10/1996, Under Section 3 (2) (b) of the Limitation Act, a counter claim is to betreated as a separate suit and is deemed to have been instituted on the date onwhich it is made in Court. Under Article 58, the period of limitation prescribed toobtain declaration other than those noted in Articles 56 and 57 is three years and thetime from which the limitation begins to run is when the right to sue first accrues. Rightto sue first accrued to defendants 1 and 2 when they learnt about the cancellation ofgeneral power of attorney by the plaintiff under the deed of cancellation dated 2/05/1979. At any rate, on receipt of the summons of the suit by Defendants 1 and 2which was filed on 18/04/1980, it was within their knowledge that general powerof attorney had been cancelled under the said cancellation deed dated 2/05/1979 by the plaintiff. Evidently, the counter claim raised by the defendants is hopelessly barred by limitation. I am supported in this view of mine by the said decisions in M/s. International Building and Furnishing Company (Cal) Pvt. Ltd. , and The Orientalfire and General Insurance Company Ltd. , and Anr. Evidently, the counter claim raised by the defendants is hopelessly barred by limitation. I am supported in this view of mine by the said decisions in M/s. International Building and Furnishing Company (Cal) Pvt. Ltd. , and The Orientalfire and General Insurance Company Ltd. , and Anr. , (supra ). Decisions in East Indiahotels and Nalini Dutta (supra) relied on behalf of the defendants have no applicabilityas the point of limitation was not considered in these cases. Application thusdeserves to be dismissed.