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2011 DIGILAW 517 (CAL)

Ranjan Roy v. Sanjoy Deb

2011-04-08

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendant no.12 and is directed against the order dated December 10, 2009 passed by the learned Civil Judge (Sr. Division), Third Court, Howrah in Title Suit No.22 of 2009 thereby rejecting an application under Order 7 Rule 11 of the C.P.C. filed by the defendant/petitioner herein. The short fact is that the plaintiffs/opposite parties herein instituted a suit being Title Suit No.22 of 2009 before the learned Civil Judge (Sr. Division), Third Court, Howrah against the defendants in respect of the properties as mentioned in the schedule of the plaint. The plaintiffs have prayed for a decree for specific performance of contract, permanent injunction and other reliefs against the defendant nos.1 to 11 contending, inter alia, that a written agreement was held between the plaintiffs in one side and the defendant nos.1 to 11 for the other side for sale of the suit properties by a written agreement dated May 6, 2010. The said suit for specific performance of contract was filed on February 25, 2009. The defendants are contesting the said suit by filing separate written statements. The defendant no.12 has filed a separate written statement contending, inter alia, that he purchased the suit properties at a consideration of Rs.20 lac from the defendant nos.1 to 11 without notice and, thus, the defendant no.12 has the right, title and interest and also possession over the suit property. For that reason, the suit is not maintainable at all and he filed the said application under Order 7 Rule 11 of the C.P.C. for rejection of the plaint. Upon hearing both the sides, the learned Trial judge has rejected that application under Order 7 Rule 11 of the C.P.C. Being aggrieved, this application has been preferred by the defendant no.12. Now the question is whether the impugned order should be sustained. Upon hearing the rival contentions of the learned advocates of both the sides and on going through the materials on record, I find that the defendant no.12 has filed the application under Order 7 Rule 11 of the C.P.C. contending, inter alia, that the suit is barred by limitation. Now the question is whether the impugned order should be sustained. Upon hearing the rival contentions of the learned advocates of both the sides and on going through the materials on record, I find that the defendant no.12 has filed the application under Order 7 Rule 11 of the C.P.C. contending, inter alia, that the suit is barred by limitation. The time was the essence of contract and since the agreement between the plaintiffs and the defendant nos.1 to 11 was held on May 6, 2000 and the deed of sale was to be executed within one year from the date May 6, 2000. The suit as framed, is not maintainable and is barred by limitation. Therefore, the suit is quite hit by Order 7 Rule 11 of the C.P.C. He has relied upon the decision of Ramjan v. Hussaini reported in (1990)1 SCC 104 and decision of Tarlok Singh v. Vijay Kumar Sabharwal reported in (1996)8 SCC 367 . By referring the decision of Ramjan (supra), particularly at page no.107 Mr. Banerjee has submitted that in the instant case, the period of time for execution of the sale deed was for one year from the date of execution of the agreement i.e. on May 6, 2000. Therefore, the said agreement shall be governed by the first part of Article 54 of the Limitation Act and when the application was filed beyond the period of one year, it is barred by limitation and for that reason, the plaint comes within the provision of Order 7 Rule 11(d) of the C.P.C. and the same is liable to be rejected. He has also contended by referring to the decision of Tarlok Singh (supra) and thus, he has submitted that the limitation of period is 3 years and it begins when the last date of the agreement expires that is w.e.f. May 6, 2001. But the instant suit having been filed in the year 2009, it is quite barred by limitation and so it should have been dismissed by the learned Trial Judge. On the other hand, Mr. Tapas Kumar Mukherjee appearing on behalf of the opposite party refers to the decision of 2005(3) CHN 486 and thus, he submits that the time was not the essence of the contract. On the other hand, Mr. Tapas Kumar Mukherjee appearing on behalf of the opposite party refers to the decision of 2005(3) CHN 486 and thus, he submits that the time was not the essence of the contract. In the instant case, because though the agreement lays down the clause that the sale deed is to be executed within one year from the date of May 6, 2000. In fact, out of the total consideration money of Rs.3 lac, his clients have paid a sum of Rs.2 lac and ninety thousand only. The last payment was made on August 14, 2002 as appearing in annexure ‘C’ at page no.50 to the application. The intending vendors took payment after the lapse of one year from the date of agreement and in fact, thereafter when the notice was issued upon the intending vendors and it was refused in 2009 last and the suit having been filed in the year 2009, it is well within the time and so, the suit, prima facie, is not, at all, hit by the provisions of the Limitation Act. Further, as per terms of the contract, Mr. Mukherjee contends, the parties may mutually agree to extend the date. If the situation demands and after completion of the mutation in respect of the lands in favour of the vendors, the sale deed shall be executed in favour of the intending vendees. But uptil now the suit properties have not been mutated in the name of the intending vendors and for that reason the plaintiffs are entitled to get an extension of time and the terms and conditions of the agreement for sale clearly lay down such provisions. Therefore, the suit is not hit, at all, by the provisions of Order 7 Rule 11(d) of the C.P.C. Mr. Mukherjee has also referred to the decision of Panchnan Dhara & ors. V. Monmotho Nath Maiti & anr. reported in (2006) 5 SCC 340 and thus, he submits that once it is found that the time for performance of contract has been extended by the parties, instead of the first part of Article 54, the second part would be applicable. Mukherjee has also referred to the decision of Panchnan Dhara & ors. V. Monmotho Nath Maiti & anr. reported in (2006) 5 SCC 340 and thus, he submits that once it is found that the time for performance of contract has been extended by the parties, instead of the first part of Article 54, the second part would be applicable. Having considered the submissions of the learned Advocates of both the sides and the relevant decisions cited by the parties, I find that the sale deed was to be executed on the happening of certain events which were to take place, that is, mutation and for that purpose if necessary, the parties might extend the time for execution of the deed. The conduct of the parties clearly indicates that they extended the time to perform the contract. Even the decision of Ramjan (supra) lays down that when the agreement lays down that it shall be performed on the happening of a certain event, unless an until that event happens, extension be granted meaning thereby, the time is not the essence of the contract. Even the above proposition has been elaborately discussed in the case of Panchnan Dhara & ors. (supra). In this case, it has been decided that when the time fixed for performance is determinable with reference to the event of perfection of title of the vendors, time is not to be determined by perusal of the agreement of sale. So the second part of Article 54 would be applicable. Therefore, I hold that the conduct of the parties are very much relevant to determine limitation. This decision appears to me to be in consonance with the present case. Therefore, I hold that the question of limitation involves in the instant case on mixed question of fact and law. So, unless and until evidence is recorded, no definite conclusion could be arrived. The plaintiffs have also contended embargo on sale of land for a certain period in respect of lands on both the sides of the Kona Expressway. I am of the view that the evidence is required on behalf of both the sides before coming to the conclusion whether the suit is barred by limitation. The plaintiffs have also contended embargo on sale of land for a certain period in respect of lands on both the sides of the Kona Expressway. I am of the view that the evidence is required on behalf of both the sides before coming to the conclusion whether the suit is barred by limitation. So, unless and until an issue is framed and parties are allowed to evidence, in this regard, it will not be proper to jump to a conclusion that the said suit is barred by limitation. So, this issue shall be kept open for final decision at the time of trial of the suit. The conduct of the intending vendors, prima facie, shows that the period of performance of contract has been extended by the parties by accepting payment after the due date. This being the position, without going into the details more because the suit is pending and my observations are likely to affect the mind of the learned Trial Judge, I am of the view prima facie that the learned Trial Judge has rightly rejected the application under Order 7 Rule 11 of the C.P.C. The impugned order does not call for any interference at this stage. Accordingly, the revisional application is dismissed. The impugned order is hereby affirmed. The suit shall proceed in accordance with law. The question of limitation is kept open for decision at the time of trial. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.