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2023 DIGILAW 1276 (BOM)

Veronica Pimento v. Desmond Furtado

2023-06-12

B.P.DESHPANDE

body2023
JUDGMENT/ORDER 1. Admit. 2. Heard Shri R.G. Ramani, learned Senior Advocate for the applicants and Shri C.A. Coutinho, learned Counsel for the respondents. 3. The matter was heard finally at the admission stage itself, with the consent of the respective parties and as pointed out in the order dtd. 18/10/2022. 4. In a nutshell, by present revision, the applicants/original defendants are hereby challenging the impugned order dtd. 17/09/2022 passed by the learned Civil Court, Margao thereby dismissing the application under Order VII Rule 11 CPC. 5. The learned Senior Counsel Shri Ramani strongly contended that on a meaningful reading of the plaint, it is clear that the suit filed for specific performance is hopelessly barred by law of limitation. He further submitted that there is no cause of action for filing of the suit since the agreement of sale is silent as who has to obtain NOC's from the concerned departments. He invited attention to the impugned order and submitted that the Court below committed an error in rejecting such an application. He placed reliance on the following decisions: 1. T. Arivandandam v/s. T.V. Satyapal and Another, (1977) 4 SCC 467 . 2. Shri Vinayak Shankar Bawane and others v/s. Shri Tilakraj s/o. Indrajeet Chaddha, CRA No. 136 of 2019. 6. Per contra, Mr Coutinho appearing for the respondents/plaintiffs would submit that the Trial Court rightly considered Article 54 of the Limitation Act and on that basis concluded that limitation starts only from the date when the plaintiffs had noticed that the performance of the contract is refused. In this respect, he would submit that the plaint if read as a whole would clearly disclose a specific cause of action in paragraph 13 and accordingly a suit is also within limitation. He further submitted that earlier there was no specific refusal to perform their part of a contract. In the alternative, Mr. Coutinho submitted that when the matter comes under the second part of Article 54 of the Limitation Act, the issue of limitation being a mixed question of fact and law is to be decided only on adducing evidence. He placed reliance on the following decisions: 1. Ahmmadsahab Adbul Milla (dead) by proposed Lrs v/s. Bibijan and Ors., 2009(3) Supreme 116 . 2. Urvashiben and Ors v/s. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 . 7. He placed reliance on the following decisions: 1. Ahmmadsahab Adbul Milla (dead) by proposed Lrs v/s. Bibijan and Ors., 2009(3) Supreme 116 . 2. Urvashiben and Ors v/s. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 . 7. A short question which cropped up in the present revision is whether the plaint discloses a cause of action and that it is within limitation. 8. For the sake of convenience, parties are hereinafter referred to as plaintiffs and defendants as they arrayed before the Trial Court. The applicants herein are the original defendants whereas respondents are plaintiffs. 9. The plaintiffs filed suit for specific performance and other reliefs under Sec. 34 of the Specific Relief Act. It is their specific contention that Late Jaime Antonio Pimenta, the predecessor of the defendants was the sole owner of the suit property wherein the mundkarial house was situated. Late Jaime Antonio Pimenta sold part of the respective properties to respective mundkars. Vide an agreement for sale with possession dtd. 14/11/1990 said Jaime Antonio Pimenta had agreed to sell an area of 1195 sq. mtrs. of his property to the father /father-in-law of the plaintiffs for a consideration paid of Rs.6000.00. The plaintiffs disclosed the boundaries of the said plot in paragraph 8 of the plaint. It is further claimed that at the time of execution of an agreement of sell total consideration of Rs.6, 000.00 was paid to Late Jaime Antonio Pimenta by the father/father-in-law of the plaintiffs with due acknowledgement and accordingly possession was handed over to the father/father-in-law of the plaintiffs. Since then the predecessor of the plaintiffs and thereafter the plaintiffs are in possession and enjoyment of the suit plot without any objection or disturbance. 10. It is further case of the plaintiffs that the father/father-in-law of the plaintiffs and also Jaime Antonio Pimenta expired leaving behind plaintiffs and defendants as their legal heirs. During their lifetime, efforts were made to execute a Sale Deed however for one or other reason it was delayed. Due to the death of Jaime Antonio Pimenta and father/father-in-law of the plaintiffs and since the plaintiffs were unaware about the legal heirs of the late Jaime Antonio Pimenta, no steps were taken to execute the Sale Deed. Only after knowing the successor of the late Jaime Antonio Pimenta i.e. the defendants, plaintiffs approached them somewhere in August 2021 with a request to execute Sale Deed. Only after knowing the successor of the late Jaime Antonio Pimenta i.e. the defendants, plaintiffs approached them somewhere in August 2021 with a request to execute Sale Deed. the defendants pleaded their inability to execute Sale Deed as NOC from TCP is required for execution. This inability of the defendants is considered as refusal and accordingly, the suit was filed for specific performance of the contract. 11. On receipt of the suit summons the defendants filed an application vide Exhibit 8 dtd. 27/01/2022 under Order VII Rule 11 CPC claiming therein that (i) Plaint does not disclose a cause of action and (ii) On the face of it suit appears to be barred by law of limitation. 12. The plaintiffs contested the said application which resulted in the passing of the impugned order by the Trial Court, which is assailed in the present revision. 13. With this factual matrix, it is clear from the pleadings as well as from the documents annexed to the plaint which include an agreement for sale with possession, one thing is clear that no time limit was fixed for the performance of the contract. It only mentions that execution of the final Sale Deed will be done as and when all the formalities required for the purpose of NOC of S.P.D.A. is done. In the entire agreement nowhere disclosed as to how has to obtain or carry out formalities. It is no doubt true that Late Jaime Antonio Pimenta being the owner was required to obtain NOC and complete other formalities however since the agreement is silent on this aspect, it cannot be presumed that the owner is duty-bound to perform all such formalities. Be that as it may, admitted fact is that possession was handed over of the suit plot at the time of the agreement of sale and the entire consideration was received by the owner. Therefore, the only formalities which remained to be performed is to execute the Sale Deed. A condition to execute Sale Deed was only to carry out other formalities and to obtain NOC from S.P.D.A. 14. It is admitted fact from the pleadings that there is no clarity about the formalities which were required to be carried out apart from obtaining NOC from S.P.D.A. Agreement is silent as to who was required to perform such duty. A condition to execute Sale Deed was only to carry out other formalities and to obtain NOC from S.P.D.A. 14. It is admitted fact from the pleadings that there is no clarity about the formalities which were required to be carried out apart from obtaining NOC from S.P.D.A. Agreement is silent as to who was required to perform such duty. Admittedly, neither the predecessor nor the plaintiffs sent any notice to the defendants or other predecessors requesting them to perform their duties thereby completing all the formalities or obtaining NOC. According to the plaint, all negotiations were going on orally. 15. As far as the disclosure of cause of action is concerned, Order VII Rule 11 (a) only speaks "where it does not disclose a cause of action". Thus, on a meaningful reading of the plaint where it appears to the Court that the plaintiffs do not disclose a cause of action, such plaint could be rejected but not otherwise. 16. An attempt was made on behalf of the defendants /applicants herein that whatever was stated in the paragraph No.13 of the plaint is only an illusory cause of action and that earlier was a clear refusal to execute the Sale Deed. In this respect contentions raised in the plaint in paragraph 10 were tried to be highlighted. 17. No doubt, the plaintiffs in paragraph 10 of the plaint specifically stated that during the lifetime of Late Jaime Antonio Pimenta and parents of the plaintiffs on many occasions requested him and also his attorney to execute the Sale Deed however for one reason or the other, the execution of Sale Deed was delayed. 18. These pleadings though considered to be clever drafting, nowhere suggest that there was a refusal to execute the Sale Deed. 19. In paragraph 12 of the plaint, the plaintiffs claimed that they approached the defendants somewhere in August 2021 with a request to execute the Sale Deed however they pleaded their inability to do so as NOC from TCP is required. This inability of the defendants is considered by the plaintiffs as a refusal to execute. 20. 19. In paragraph 12 of the plaint, the plaintiffs claimed that they approached the defendants somewhere in August 2021 with a request to execute the Sale Deed however they pleaded their inability to do so as NOC from TCP is required. This inability of the defendants is considered by the plaintiffs as a refusal to execute. 20. In the case of T. Arivandandam (supra), the Hon'ble Apex Court has categorically observed that the Court must remember that if on a meaningful/nor formal/ reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII rule 11, C.P.C. taking care to see that the ground mentioned therein fulfilled. And, if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Chapter X, C.P.C. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. 21. This principle is considered by various subsequent decisions of the Hon'ble Apex Court and other High Courts including this High Court. There is no dispute about the said proposition of how however it clearly lays down that there has to be a meaningful reading of the plaint and if on such reading a Court comes to the conclusion that the plaint does not disclose a clear right to sue, it has to exercise jurisdiction under Order VII Rule 11 CPC. However, the above decision further observed that if clever drafting has created the illusion of a cause of action, then recourse to Order X CPC must be exercised at the first instance so as to nip it in the bud if viewed as vexatious or meritless. 22. In the case of Vinayak Shankar Bawane(supra), the facts which are found in paragraph 10 clearly disclose that a specific time period was fixed in the agreement itself for obtaining NOC i.e. three months, which is not at all a case in hand. Therefore, this case will not help the applicants. 23. The learned Senior Counsel Shri R.G. Ramani heavily placed reliance on the observations in paragraph 15 of the said judgment of Vinayak Shankar Bawane(supra). Therefore, this case will not help the applicants. 23. The learned Senior Counsel Shri R.G. Ramani heavily placed reliance on the observations in paragraph 15 of the said judgment of Vinayak Shankar Bawane(supra). However, such observations are restricted to the fact that the case wherein a specific time limit was fixed for obtaining NOC. 24. In the case of Ahmmadsahab Abdul Milla(supra), the Hon'ble Apex Court while considering Article 54 of the Limitation Act considered the word "date" used in it and observed that it is suggestive of a specific date in the calendar. 25. In the case of Urvashiben (supra), the Hon'ble Apex Court while considering the civil appeal challenging the decision of the Hon'ble Gujarat High Court wherein it was contended that the time was not the essence of the contract and discussed Article 54 of the Limitation Act and observed in paragraph 14 and 15 as under: 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 by Article 54 of the Limitation 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 three 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 in R.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 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 of Article 54 finding 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 and Ors. while interpreting Article 54 of the Limitation 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 and 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. 15. In the case of Balsaria Construction (P) Ltd. v. Hanuman Seva Trust and 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. 15. By applying the aforesaid principles in the judgments relied on by Sri Dushyant Dave, learned senior counsel appearing for the respondent, we are of the considered view that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under O.VII R.11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial. Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC. 26. Applying the above principles to the matter in hand, it is clear that the agreement executed between the parties on 18/11/1990 nowhere speaks about the time limit for obtaining NOCs from S.P.D.A or completing other formalities. Admittedly, possession of the suit plot was handed over to the purchaser, on receipt of the entire sale consideration. Thus, it squarely falls within the scope of the second part of Article 54 of the Limitation Act which speaks that if no such date is fixed, the period of limitation starts when the plaintiffs have noticed that the performance is refused. The Hon'ble Supreme Court clearly observed that the aspect of "the plaintiff has noticed that the performance is refused" is a mixed question of fact and law and needs to be decided only after adducing evidence. Thus, an issue as to when the plaintiffs noticed refusal, is an issue which can be adjudicated after trial. Even assuming that there is an inordinate delay and laches on the part of the plaintiffs as tried to be projected by the defendants, the same cannot be a ground for rejection of the plaint under Order VII Rule 11 (b) of CPC. 27. Even assuming that there is an inordinate delay and laches on the part of the plaintiffs as tried to be projected by the defendants, the same cannot be a ground for rejection of the plaint under Order VII Rule 11 (b) of CPC. 27. Admittedly, the learned Trial Court did not exercise the discretion vested in it under Order X CPC by asking the plaintiffs to lead evidence so as to find out whether there is actual cause of action and when the plaintiffs had noticed the refusal. In the absence of that, averments made in the plaint will have to be looked into alone. Thus a meaningful reading of the plaint would clearly suggest that the refusal of performance as noticed by the plaintiffs was only in August 2021 and hence, the suit is within limitation. 28. There are specific pleadings with regard to the accrual of cause of action, therefore, the contention of the plaintiffs that such pleadings are illusory cannot be gone into at this stage. 29. In the result, the revision fails and hence, the following ORDER 1. The revision stands rejected. 2. Parties shall bear their own costs.