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2023 DIGILAW 878 (GUJ)

Ram Shyam Traders v. Kamalaben Ramanbhai Patel

2023-07-19

ANIRUDDHA P.MAYEE

body2023
JUDGMENT : ANIRUDDHA P. MAYEE, J. 1. The present Civil Revision Application is filed impugning the order dated 16.10.2020 passed by the City Civil Court, Ahmedabad below application Exh.52 in Civil Suit No. 1784 of 2013 whereby the learned Trial Court has rejected the application preferred by the applicant herein under Order-VII Rule-11 of the Code of Civil Procedure, 1908 [“CPC” for short] for rejection of the plaint on the ground of limitation. 2. The brief facts in the present case are that, original plaintiffs-respondent Nos. 1 to 4 herein have filed the Civil Suit No. 1784 of 2013 in the City Civil Court, Ahmedabad pertaining to land bearing Survey No. 557 paiki (West) admeasuring 3 Acres and Survey No. 556 admeasuring 39 Gunthas at Ishanpur, Ahmedabad. That one Shri Ramanbhai Nathabhai Patel was the actual owner and possessor of the subject lands and the said Shri Ramanbhai Nathabhai Patel along with the respondent Nos.7 and 8 were the Directors in the respondent No. 5 company. That the subject land was given on rent to the respondent No. 5 company in the year 1984 for the period of 11 months and thereafter to the respondent No. 6 company in the year 1985. That the respondent Nos.5 and 6 companies obtained financial assistance from Nutan Nagrik Cooperative Bank [“the Bank” for short]. That so as to assist in the availing of the financial loan, late Shri Ramanbhai Nathabhai Patel mortgaged the subject lands in favour of the Bank by way of equitable mortgage and deposited the title deeds of the subject lands to the Bank. It is alleged by the respondent Nos.1 to 4-original plaintiffs that late Shri Ramanbhai Nathabhai Patel as well as the respondent No. 2 herein resigned as Directors in the respondent Nos.5 and 6 companies and in view of their resignations, the mortgage of the subject land created in favour of the Bank came to an end. It is further their case that the Bank no longer possesses any right as the mortgagee in respect of the subject land. It is further their case that when the respondent Nos.5 and 6 companies failed to repay the loan availed by them, the Bank filed two suits against the respondent companies and their Directors before the Board of Nominees seeking recovery of the total outstanding dues with interest. It is further their case that when the respondent Nos.5 and 6 companies failed to repay the loan availed by them, the Bank filed two suits against the respondent companies and their Directors before the Board of Nominees seeking recovery of the total outstanding dues with interest. That in the said recovery suits, Shri Ramanbhai Nathabhai Patel as well as the respondent No. 2 were joined as party defendants. That the subject land was claimed as a mortgage property. Since they have persons dealing inter-se between the applicant and the respondents herein, it is the case of the applicant herein that it offered to pay the total dues in respect of the financial assistance availed by the respondent Nos.5 and 6 companies. It is their case that during the pendency of the recovery suits, the applicant herein has paid the outstanding due amount in favour of the Bank. It is further alleged that in view of the aforesaid payment made by the applicant, the mortgagee and mortgagor relationship between late Shri Ramanbhai Nathabhai Patel and the Bank came to an end and the subject lands become mortgage free. That in view of the payment of the outstanding dues of the respondent Nos.5 and 6 companies, the Bank executed two transfer of mortgage deeds in favour of the applicant herein on 27.3.1992 transferring mortgage rights in respect of the subject lands in the favour of the applicant and consequently, the applicant was added as a plaintiff No. 2 in the said recovery suits. That late Shri Ramanbhai Nathabhai Patel passed away on 17.1.2012. That after the demise of Shri Ramanbhai Nathabhai Patel, the respondent Nos.1 to 4 herein filed a Civil Suit No. 1784 of 2013 in the City Civil Court, Ahmedabad praying for a declaration that the mortgage rights of the applicant herein have come to an end and redemption of mortgage was prayed for. That the applicant herein has thereafter filed application below Exh.52 under Order-VII Rule-11(d) of CPC praying to pass necessary orders that the suit is barred by law of limitation. That the original plaintiffs-respondent Nos.1 to 4 herein filed their reply. By the impugned order dated 16.10.2020, the learned Trial Court has rejected the application below Exh.52 holding that since the issue of limitation was a mixed question of law and facts, a trial was necessary in the present case. That the original plaintiffs-respondent Nos.1 to 4 herein filed their reply. By the impugned order dated 16.10.2020, the learned Trial Court has rejected the application below Exh.52 holding that since the issue of limitation was a mixed question of law and facts, a trial was necessary in the present case. Aggrieved, the applicant has preferred the present Civil Revision Application. 3. Learned counsel for the applicant submitted that the applicant has preferred the application at Exh.52 under the provisions of Order-VII Rule-11 of CPC on the ground that the suit is barred by principles of foreclosure and redemption and the suit is barred by law of limitation. He submits that it is the duty of the plaintiffs to make specific pleadings and averments in the plaint on the issue of limitation. It is further submitted that the Court is bound to exercise jurisdiction under Order-VII Rule-11 of CPC to reject the plaint in absence of specific pleadings. It is submitted that in the entire plaint, there is no pleading that the suit is not barred by limitation as prescribed in law. It is further evident from the pleadings that the alleged cause for which the suit is filed was hopelessly time barred at the time of filing of the suit. Further, that there is absolutely no averment as to when the applicant herein came in possession of the subject properties and further when the original plaintiffs-respondent Nos.1 to 4 herein acquired the knowledge of the same. It is further argued that the present suit would be governed by the provisions of Article 61(b) of the Indian Limitation Act, 1963 [“Limitation Act” for short]. A perusal of the plaint shows that there is no averment as to when such possession was transferred in favour of the applicant herein. It is further submitted that a meaningful comprehensive reading of the plaint shows that even as per the say of the original plaintiffs, the possession of the subject lands was with the applicant herein since 20 years prior to 2013. Further, it was the duty of the original plaintiffs-respondent Nos.1 to 4 herein to make a specific averment with respect to possession as well as limitation. Further, it was the duty of the original plaintiffs-respondent Nos.1 to 4 herein to make a specific averment with respect to possession as well as limitation. It is further argued by learned advocate that the only relief sought for in the plaint is declaration that the applicant herein has not derived any right as a mortgagee and by declaring the same, further declaration is sought that the subject properties are free from mortgage. However, no prayer for possession is sought under the prayer clause. It is submitted that the relief sought by the original plaintiffs-respondent Nos.1 to 4 herein does not fall under the purview of Article 56 or Article 57 of the Limitation Act. Thus, as a consequence, the same falls within the purview of Article 58 of the Limitation Act. The period of limitation as provided under Article 58 of the Limitation Act is of 3 years from the date when the right to sue has accrued. Hence, in the present case, as per the pleadings, the right to sue first accrued on 31.3.1990 and therefore, the limitation period of 3 years would expire on 31.3.1993. That the present suit was filed on 9.7.2013 i.e. after a gross inordinate delay of approximately 20 years. Thus, the suit of the original plaintiffs-respondent Nos.1 to 4 herein is hopelessly barred by limitation and the plaint was required to be rejected. It is further submitted that the original plaintiffs-respondent Nos.1 to 4 herein have sought relief of redemption of mortgage with possession. The provisions of Section 60 and Section 67 of the Transfer of Property Act are material in respect of such prayer. It is the case of the applicant that once a decree for foreclosure has been passed, the respondent Nos.1 to 4 herein are debarred from bringing such action. That Section 60 of the Transfer of Properties Act mandates that the payment of outstanding dues is a prerequisite for seeking decree or relief of redemption. In the present case, the pleadings as well as the prayers reveal that the respondent Nos.1 to 4 are seeking a decree i.e. relief of redemption without offering any payment of outstanding dues in favour of the applicant herein. In the present case, the pleadings as well as the prayers reveal that the respondent Nos.1 to 4 are seeking a decree i.e. relief of redemption without offering any payment of outstanding dues in favour of the applicant herein. It is further submitted that the respondent Nos.1 to 4 have not pleaded in the suit that Shri Ramanbhai Nathabhai Patel was also not aware of the possession of the subject properties being with the applicant herein. In view thereof, the relief as sought for by the respondent Nos.1 to 4 would fall within the purview of Article 61(b) of the Limitation Act. The said Article 61(b) provides for limitation period of 12 years from the date when the transfer becomes known to the plaintiffs. In the present case, the transfer was effected on 27.3.1992 and thus, the limitation period of 12 years has expired on 27.3.2004 and the present suit is filed on 9.7.2013, i.e. after gross delay of 9 years. In view thereof, it was submitted that the suit filed by the original plaintiffs-respondent Nos.1 to 4 is hopelessly barred by limitation and the application below Exh.52 under Order-VII Rule-11 of CPC was required to be allowed and the plaint was required to be rejected. 4. Per contra, learned advocate for the respondent Nos.1 to 4-original plaintiffs has submitted that the plaintiffs have filed the present suit for redemption of mortgage declaration and permanent injunction on 9.7.2013. The first prayer in the suit is for declaration that in view of two separate transfer deeds dated 27.3.1992, the defendant No. 1 has got no right of a mortgagee and that the suit property is free from mortgage. In the alternative, it is prayed that if the Court comes to a conclusion that in view of two separate transfer deeds dated 27.3.1992 that the defendant No. 1-applicant herein has got right of mortgagee, then, for a declaration that the defendant No. 1-applicant herein has not implemented the said right within the period of limitation and therefore, there is no right as a mortgagee, and to pass an order of redemption of mortgage and order the applicant herein-defendant No. 1 to hand over the vacant and peaceful possession of the suit property. The second prayer in the suit is regarding permanent injunction against the defendant No. 1-applicant herein. The second prayer in the suit is regarding permanent injunction against the defendant No. 1-applicant herein. It is submitted that the suit of the plaintiffs is not barred by law of limitation. The suit is filed for redemption of mortgage, possession and injunction in view of Article 61 of the Limitation Act. Article 61(a) of the Limitation Act provides for a limitation period of 30 years for a suit for redemption or recovery of possession of immovable property mortgaged by the mortgagee from the date such a right accrues for redemption or to recover possession. In the present case, since the suit is for redemption and for recovery of possession therefore, Article 61(a) of the Limitation Act would be applicable and the suit is filed within the period of limitation. It is further submitted that the plaintiffs have made a specific pleading in respect of execution of two separate transfer of mortgage deeds in favour of the applicant herein without the knowledge and consent of late Shri Ramanbhai Nathabhai Patel. That it is further averred that after a period of 20 years, the applicant herein-defendant No. 1 has tried to enter its name in the suit property and filed RTS application No. 676 of 2011 before the City Dy. Collector, Ahmedabad and the City Dy. Collector, Ahmedabad vide order dated 30.4.2013 has ordered to file the said application. When the plaintiffs came to know about the same, they have filed a suit on 9.7.2013. Thus, the pleadings are very clear that the plaintiffs came to know about the two separate transfer deeds only in the year 2013 and thereafter, they have filed the suit immediately and therefore, as the limitation starts from the date of knowledge, the suit is also within time. It is further averred by the plaintiffs that the transfer of mortgage deeds dated 27.3.1992 executed in favour of the defendant No. 1-applicant herein by the Bank are not registered documents and therefore, the limitation will start from the date of actual knowledge of the plaintiffs. It is submitted that while deciding the application under Order-VII Rule-11 of CPC, the plaint along with the documents produced are required to be seen and the written statement or defence of the defendants cannot be taken into consideration. It is submitted that while deciding the application under Order-VII Rule-11 of CPC, the plaint along with the documents produced are required to be seen and the written statement or defence of the defendants cannot be taken into consideration. It is further submitted that in the present case, the plaint cannot be dismissed as barred by limitation under Order-VII Rule-11(d) of CPC without proper pleadings and without framing the issue of limitation and taking the evidence. It is further submitted that the learned Trial Court has rightly rejected the application at Exh.52 as preferred by the applicant herein on the grounds that the issue of limitation is a mixed question of law and facts and evidence is required to be led from the plain reading of the plaint to decide the said issue. Further, learned advocate submits that the present Civil Revision Application be dismissed. 5. Heard learned advocates for the parties at length and perused the documents on record. 6. The essential averments in the plaint are that in the year 1986-1987, the respondent No. 5 herein-original defendant No. 2 in the suit had taken a loan from the Bank for the purpose of business and late Shri Ramanbhai Nathabhai Patel stood as a guarantor as he was also one of the Directors of the respondent No. 5-company. He had executed a memorandum of deposit of Title Deed with respect to the suit properties and thereby created an equitable mortgage deed. The respondent No. 6-company also took a loan from the said bank. 7. That on 31.3.1990, late Shri Ramanbhai Nathabhai Patel had resigned from the Directorship of the respondent No. 5-company and the respondent No. 2 herein had also given resignation on 31.3.1990 as Director from the respondent No. 6-company. That, thereafter, late Shri Ramanbhai Nathabhai Patel and the respondent No. 2 herein informed the bank regarding their resignation and requested to relieve them as guarantors from the respondent Nos.5 and 6 companies. That, thereafter, the bank filed Lavad Suit Nos.506 of 1991 and 509 of 1991 before the Board of Nominees against the respondent Nos.5 and 6 companies. In the said Lavad Suits, late Shri Ramanbhai Nathabhai Patel and the respondent No. 2 herein were also joined as parties even though they had resigned as Directors of the said companies. That, thereafter, the bank filed Lavad Suit Nos.506 of 1991 and 509 of 1991 before the Board of Nominees against the respondent Nos.5 and 6 companies. In the said Lavad Suits, late Shri Ramanbhai Nathabhai Patel and the respondent No. 2 herein were also joined as parties even though they had resigned as Directors of the said companies. The said two Directors appeared in the Lavad Suits and filed their written statement contending that they had already resigned as Directors and therefore, they are not liable or responsible for the loan. The said suits came to be compromised by the applicant herein and the Bank executed two separate transfer of mortgage deeds dated 27.3.1992 in favour of the applicant herein where late Shri Ramanbhai Nathabhai Patel and the respondent No. 2 herein were not parties to the said consent terms or the transfer deeds. It is alleged that since late Shri Ramanbhai Nathabhai Patel and the respondent No. 2 herein were not parties to the consent terms, no award was passed against them. The pleadings reveal that there is no sale- deed in favour of the defendant No. 1 herein. No valuable consideration is established in respect of the suit lands. It is the case of the applicant-original defendant No. 1 that on 27.3.1992, the defendant No. 1 paid the dues of the respondent Nos.5 and 6 companies to the Bank and the Bank had executed two transfer of mortgage deeds in favour of the applicant. That in the year 2011, the applicant had filed RTS No. 767 of 2011 before the City Dy. Collector, Ahmedabad for mutating his name in the revenue records, the said request was rejected. In the circumstances, the respondent Nos.1 to 4 herein, who are the original plaintiffs, filed the present suit being Civil Suit No. 1784 of 2013 before the City Civil Court, Ahmedabad for redemption of mortgage declaration and permanent injunction. 8. In the said plaint, it is averred that late Shri Ramanbhai Nathabhai Patel expired on 17.1.2012. That, thereafter, the applicant herein, for the first time, after a period of 20 years from the date of compromise deed, tried to mutate its name in the revenue records by making an RTS application No. 767 of 2011 before the City Dy. 8. In the said plaint, it is averred that late Shri Ramanbhai Nathabhai Patel expired on 17.1.2012. That, thereafter, the applicant herein, for the first time, after a period of 20 years from the date of compromise deed, tried to mutate its name in the revenue records by making an RTS application No. 767 of 2011 before the City Dy. Collector, Ahmedabad, who rejected the said application on 13.4.2013, which is the cause of action for filing the present suit and seeking the reliefs as prayed for. 9. The Hon’ble Supreme Court in case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) through LRs. and Others, 2020 SCC Online SC 562 has held as under: “34. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. 35. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 36. In Azhar Hussain vs. Rajiv Gandhi this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words: “12......The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.” 37. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.” 37. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.” 10. In the present case, the applicant herein has filed application under the provisions of Order-VII Rule-11(d) of CPC, more particularly in respect of the bar under the law of limitation. The Order-VII Rule-11(d) of CPC reads thus: “Order-VII Rule-11: Rejection of Plaint The plaint shall be rejected in the following cases: (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) Where the suit appears from the statement in the plaint to be barred by any law.” A bare perusal of the provision shows that the only statement in the plaint is to be considered to decide the bar of any law. 11. It is the case of the applicant that the suit is barred by the law of limitation in view of Article 58 read with Article 61(b) of the Limitation Act, whereas the case of the original plaintiffs-respondent Nos.1 to 4 is that the suit is filed within limitation on conjoint reading of Article 58 read with Article 61(a) of the Limitation Act. The relevant Articles of the Law of Limitation reads as follows: “Part-III Suits relating to declarations: Article 58: To obtain any other declaration. Three years When the right to sue first accrues. Part-V Suits relating to Immovable Property: Article 61: By a mortgagor: (a) To redeem or recover possession of Immovable property mortgaged. Thirty years When the right to redeem or to recover possession accrues. (b) To recover possession of Immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration. Twelve years When the transfer becomes known to the plaintiff. 12. Thirty years When the right to redeem or to recover possession accrues. (b) To recover possession of Immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration. Twelve years When the transfer becomes known to the plaintiff. 12. By the present application under Order-VII Rule-11(d) of the CPC, the Court is called upon to give a finding whether the present suit would come within the provisions of Article 58 read with Article 61(a) of the Limitation Act as per the original plaintiffs; or whether the suit is covered by the provisions of Article 58 read with Article 61(b) of the Limitation Act as per the applicant herein. This Court is of the considered opinion that on a plain meaningful reading of the plaint along with the documents annexed therewith, no such finding can be rendered at this stage unless appropriate issue is framed and evidence is led in respect of the applicability of the relevant Articles as canvassed by the original plaintiffs as well as the applicant - original defendant No. 1. In an application under Order-VII Rule- 11 of CPC, this Court cannot adjudicate such an issue on the basis of bare averments in the plaint. If the plaint is read as a whole, then, the fact shows that late Shri Ramanbhai Nathabhai Patel was a mortgagor and the Bank was the mortgagee as per the original transaction. Only an equitable mortgage was created by depositing the Title Deeds. The possession of the suit lands was not given to the Bank as per the original mortgage deed. Thereafter, the said loan transaction came to be settled in the Lavad Suits by the applicant herein and by consent, the mortgage deeds came to be transferred to the applicant herein to which late Shri Ramanbhai Nathabhai Patel and the respondent No. 2 herein were not parties. The emphasis of the applicant is on the proposition that the present case will be covered under Article 58 read with Article 61(b) of the Limitation Act. The said proposition is in respect of the recovery of possession of the immovable mortgage property. At this stage, on plain reading of the plaint without leading any evidence, no clear cut finding can be given whether the suit comes under the provision of Article 61(b) of the Limitation Act or not. The said proposition is in respect of the recovery of possession of the immovable mortgage property. At this stage, on plain reading of the plaint without leading any evidence, no clear cut finding can be given whether the suit comes under the provision of Article 61(b) of the Limitation Act or not. The Order-VII Rule-11(d) of the CPC does not provide for any preliminary trial or inquiry. The present proposition as canvassed by the learned advocate for the applicant shows that the applicability of the provisions of Article 58 read with Article 61(b) of the Limitation Act involves mixed question of law and facts which cannot be concluded at this stage. To reject a plaint, it has to be read as a whole meaningfully and the pleadings are to be construed without addition or subtraction of words. If the case of the original plaintiffs-respondent Nos.1 to 4 herein is considered, the prayer as prayed for is in respect of the redemption of mortgage as well as recovery of possession, which are two independent reliefs under Article 61(a) of the Limitation Act. The first relief with respect to the declaration would be covered under Article 58 of the Limitation Act. The original plaintiffs have specifically sought relief with respect to the redemption of mortgage along with the possession. Prima-facie, such a relief will be covered under Article 61(a) of the Limitation Act. 13. Considering the legal principles as enunciated by various judgments, in an application under Order-VII Rule-11 of CPC, the Court has to only examine whether the plaint and the contents of the documents are such that there is no scope for the parties to go to trial on the claims made by the original plaintiffs and that the plaint deserves to be rejected at the threshold. It would necessarily will have to be analyzed as to whether in the facts and circumstances of the present case and considering the pleadings in the plaint as well as documents annexed thereto whether the present suit would be covered under the provisions of Article 61(a) or Article 61(b) of the Limitation Act. There is a latent ambiguity which is giving rise to the necessity for leading of evidence in the present case which would require a full trial with an opportunity for the parties to lead evidence. There is a latent ambiguity which is giving rise to the necessity for leading of evidence in the present case which would require a full trial with an opportunity for the parties to lead evidence. At this stage, no emphatic finding can be rendered as to whether the suit will be covered under the provisions of Article 61(a) or Article 61(b) of the Limitation Act. The plaint cannot be rejected on the ground that it is barred by limitation on the face of it. The question as raised by the applicant will have to be answered after giving an opportunity to the parties to lead evidence as it is found to be a mixed question of law and facts. The judgments relied upon by the learned counsel for the applicant will not come to the aid of the applicant in view of the aforesaid observations. The rest of the contentions as raised by the applicant herein along with the judgments relied upon are more in the nature of opposition to the suit and by way of reply to the averments and the same cannot be taken into consideration at this stage. 14. By the impugned order, the learned Trial Court has given cogent reasons and findings for rejection of the application under Exh.52 under Order-VII Rule-11 of CPC. The learned Trial Court has dealt with all the submissions and contentions as raised by the parties. The learned Trial Court has also properly appreciated the law as laid down by the Hon’ble Supreme Court through various judgments as relied upon by the parties to the lis. 15. In view of the aforesaid observations, no interference is called for in the impugned order dated 16.10.2020 passed by the City Civil Court, Ahmedabad below application Exh.52 in Civil Suit No. 1784 of 2013. The present Civil Revision Application is devoid of merits and is dismissed accordingly. Interim relief granted earlier stands vacated forthwith. No order as to costs. 16. That after the pronouncement of the judgment, the learned advocate for the applicant prays that the present judgment and order be stayed for a period of 4 weeks so as to enable the applicant to approach the higher forum by way of appeal. 17. The said prayer is rejected.