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2025 DIGILAW 597 (AP)

Pilla Maheswar Rao v. Seera Sai Mohan

2025-04-10

R.RAGHUNANDAN RAO

body2025
ORDER : R Raghunandan Rao, J. The respondents herein had filed O.S.No.122 of 2023, before the Principal District Judge, Visakhapatnam, for specific performance of two agreements of sale, dated 08.12.2016. The plaint averments state as follows: A) The suit schedule property, which is 800 square yards of land, belongs to the petitioner and had been purchased from M/s.Vizag Forgings Limited. By then, the property appears to have already been mortgaged to SIDBI Bank and the petitioner required further funds to get the property released from the mortgage. For this purpose, the petitioner entered into an agreement of sale with the father of the respondents, on 08.12.2016, and the said agreement of sale was registered as document No.6727 of 2016. Apart from this registered agreement of sale, another agreement was also entered, on the same day, by the petitioner with the father of the respondents. A reading of both these agreements together would show that the total sale consideration was fixed at Rs.1,01,96,000/- out of which Rs.18 lakhs had been paid. Thereafter, a sum of Rs.30 lakhs was to be paid, at the time of approval of the onetime settlement scheme sought from SIDBI Bank so that the property can be released from the mortgage. The remaining balance was to be paid within six months thereafter and a sale deed would be registered in favour of the father of the respondent. B) The father of the respondent is said to have paid Rs.18 lakhs at the time of execution of the agreement. This amount of Rs.18 lakhs was paid by way of two demand drafts. The first demand draft of Rs.15 lakhs was paid to M/s. Pragnna Welding Institute which was a previous agreement holder and Rs.3 lakhs to the petitioner himself. C) The father of the respondents remitted a sum of Rs.30 lakhs to the loan account of the petitioner, held with SIDBI Bank, on 04.01.2017. Thereafter, a conditional OTS approval, dated 05.01.2017, was issued by SIDBI Bank. The father of the respondents had also paid another amount of Rs.2 lakhs bringing the total sale consideration paid till then, to Rs.50 lakhs. D) The father of the respondents who was put in possession of the property had developed the property further, by constructing an additional floor and continued to enjoy the property. He passed away on 08.05.2021, leaving behind the respondents as his legal heirs. D) The father of the respondents who was put in possession of the property had developed the property further, by constructing an additional floor and continued to enjoy the property. He passed away on 08.05.2021, leaving behind the respondents as his legal heirs. E) The father of the respondents, during his life time, had approached the petitioners, several times with a request to obtain an NOC, from SIDBI, so that registration of the sale deed could be completed. The petitioner kept postponing the matter by saying that the OTS proposal is still under consideration and never took the stand that the OTS proposal had failed. The respondents, after the demise of their father, had again approached the petitioner for completion of the sale transaction by obtaining OTS clearance. As this was not being done, the respondents issued a notice on 16.05.2022 calling upon the petitioner to get the property released from the mortgage and to execute the registered deed of sale by receiving the remaining sale consideration of Rs.51,96,000/-. The petitioner replied to this notice by a notice, dated 30.05.2022, denying his liability and raising various allegations which are not correct. The respondents had thereupon filed O.S.No.122 of 2023, before the Principal District Judge, Visakhapatnam, for specific performance of the two agreements, dated 08.12.2016. 2. During the pendency of the suit, the petitioner moved I.A.No.1961 of 20245, under Order VII Rule 11 of C.P.C., for rejection of the plaint. The case of the petitioner is that the last payment, by the respondents’ father, was on 24.01.2017 whereas the suit was filed on 11.07.2023. The same would stand barred by limitation as the suit was not filed within three years and there was no acknowledgement of debt or denial within three years. Further, no rent had been paid, on the property, from 08.12.2016 and the monthly rent payable for such a property was more than the suit amount. The petitioner also stated that the recitals, in the registered agreement, clearly go to show that the present suit is barred by limitation. However, the details of such other recitals were not set out in the affidavit. The learned counsel, appearing for the petitioner made further submissions. The learned counsel took the stand that the period of limitation, for recovery of any amount, is three years from the last date of payment which is 24.01.2017. However, the details of such other recitals were not set out in the affidavit. The learned counsel, appearing for the petitioner made further submissions. The learned counsel took the stand that the period of limitation, for recovery of any amount, is three years from the last date of payment which is 24.01.2017. As the suit was filed on 20.06.2023 it would have to be rejected as being barred by limitation. Learned counsel also argued that the period of agreement, under clause (3) of the agreement of sale, dated 08.12.2016, was six months from the date of registered agreement and upon completion of these six months, the suit would have to be filed within three years thereafter. As the suit was not filed within that time, the suit would have to be rejected. 3. Learned counsel for the respondents contended that the clauses in the supplementary agreement of sale, dated 08.12.2016, required the petitioner to clear the mortgage before further payment of money could be made and the sale deed was to be obtained by paying the remaining balance. As there was delay by the petitioner in obtaining the one time settlement of the debt, the limitation would only commence from the date of clear refusal which is by way of the reply notice in May, 2022. Since the suit was filed within three years thereafter, issue of limitation would not arise. 4. The trial Court after hearing both sides held that the refusal to perform was only under the reply notice dated, 30.05.2022, and consequently the suit would be within time. Accordingly, the trial Court dismissed this application, by an order dated 30.08.2024. 5. Aggrieved by this order, the petitioner has approached this Court. 6. Sri M.R.K. Chakravarthy, learned counsel for the petitioner contends that the delay in obtaining clearance of the onetime settlement offer made by the petitioner would itself amount to refusal and consequential period of limitation would commence on the date on which the petitioner for the first time indicated that there would be delay in obtaining sanction of the onetime settlement offer made by the petitioner to SIDBI Bank. For this purpose, he relies upon the judgment of the Hon’ble Supreme Court, dated 22.09.2023, in Civil Appeal No.6075 of 2023. 7. This contention does not appear to have been raised before the trial Court. For this purpose, he relies upon the judgment of the Hon’ble Supreme Court, dated 22.09.2023, in Civil Appeal No.6075 of 2023. 7. This contention does not appear to have been raised before the trial Court. However, since this issue has now been raised, it would be appropriate to hear this issue, instead of remanding the matter back to the trial Court. 8. The judgment of the Hon’ble Supreme Court in Civil Appeal No.6075 of 2023, would have to be considered, in the light of the clauses in that agreement. The clauses in that agreement stipulated that permission is needed from the District Magistrate before the sale could be completed. The agreement stated that an application for permission would be filed within eight days from the date of the agreement before the District Magistrate and the purchasers, were to get the sale deed executed in their favour, within 15 days from intimation of receipt of permission from the District Magistrate. Another clause, in the agreement, stated that, in case the vendor does not apply for permission within the stipulated time or does not inform the purchasers after getting permission, the purchasers would have the right to get the sale of the property in question to be executed in their favour through the Court and also to take possession through the Court. In that case, no application was made for obtaining such permission. The Hon’ble Supreme Court also noticed that there was no clear pleading that the purchasers were ready and willing to pay the balance amount and get the sale deed executed in their favour. The Hon’ble Supreme Court after noticing entry 54, of the Schedule to the LIMITATION ACT , which stipulates that the three years period of limitation would commence from the date fixed for performance or if no such date is fixed when the plaintiff has notice that the performance is refused. It was held that the purchasers had notice of refusal to perform in as much as no application for permission had been filed within in the stipulated eight days from the date of agreement, and refused specific performance on the ground that the purchasers had not moved the Court within time. 9. In the present case, there was no such stipulation as to the time within which the OTS clearance was to be obtained. 9. In the present case, there was no such stipulation as to the time within which the OTS clearance was to be obtained. The pleadings in the plaint do not indicate any clear-cut refusal by the petitioner, to obtain the OTS clearance or to execute the date of sale. 10. The issue of whether the interaction between the father of the respondents and the petitioner, regarding the failure of the petitioner to perform his part of the agreement, would amount a refusal, is a question of fact which requires trial to be completed. In any normal case, limitation is always a mixed question of fact and law, unless the pleadings and the facts are without any controversy. In the present case, the contents of the plaint do not make out a case of clear refusal by the petitioner at any point of time till the reply notice, dated 30.05.2022. 11. In such circumstances, neither the order of the trial Court dated 30.08.2024, based on the original arguments nor the fresh arguments made out at the stage of the revision petition before this Court make out a case of for interference by this Court. However, the observations of this Court shall not be taken into cognizance by the Trial Court while deciding the issue of limitation. 12. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed.