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2025 DIGILAW 829 (MAD)

Tmt. S. Badhri v. S. Vijayakumar

2025-02-06

R.VIJAYAKUMAR

body2025
ORDER : The first defendant in O.S.No.297 of 2020 on the file of the I Additional District Court, Madurai has filed the above revision petition challenging the dismissal of an application filed under Order 7 Rule 11(d) of C.P.C. (A)Facts which are not disputed are as follows: 2.One Mr.Sundaragopal is the owner of the property. He had executed a registered power deed in favour of the fourth defendant namely A.Jayachandran on 21.03.2012 for dealing with the property including a right to alienate the same. Based upon the above said power deed, the fourth defendant has entered into a registered sale agreement with the plaintiff on 16.07.2012. Under the said sale agreement, the total sale consideration was fixed at Rs.32,00,000/-. Out of which, a sum of Rs. 10,00,000/- is said to have been paid as advance amount to the power agent. A period of two years was fixed as time to complete the sale deed. 3.The original owner of the property had cancelled the power deed on 19.07.2012 and thereafter, he had passed away on 08.11.2019 leaving behind the defendants 1 to 3 as his legal heirs. The plaintiff had issued a legal notice to the defendants on 07.11.2020 calling upon them to execute a sale deed after receiving the balance sale consideration of Rs.5,00,000/-. The first defendant has sent a reply notice on 18.11.2020 contending that the power deed has ready been cancelled and the original owner had not received any amount from the power agent. The fourth defendant had sent a reply on 26.11.2020 that he was not aware of the alleged cancellation of power deed and whatever he had received from the agreement holder, he had paid it to late Sundaragopal. 4.In view of the above said facts, the suit for specific performance came to be filed. Pending suit, the first defendant had filed I.A.No.11 of 2023 to reject the plaint under Order 7 Rule 11(d) of C.P.C on the ground that the suit is clearly barred by limitation. After contest, the said application was dismissed by the trial Court on the ground that the limitation is a mixed question of law and facts and therefore, it cannot be decided in an application for rejection of plaint. Challenging the said order, the present civil revision petition has been filed. After contest, the said application was dismissed by the trial Court on the ground that the limitation is a mixed question of law and facts and therefore, it cannot be decided in an application for rejection of plaint. Challenging the said order, the present civil revision petition has been filed. (B)Contentions of the counsels appearing on either side are as follows: 5.The power deed was executed by the original owner on 21.03.2012. Based upon the said power deed, the power agent / 4 th defendant has executed a registered sale agreement in favour of the plaintiff on 16.07.2012. The advance amount of Rs.10,00,000/- said to have been paid to the power agent was not handed over to the principal. Therefore, he had cancelled the power deed on 19.07.2012. No further amount was received either by the original owner or his legal heirs. The legal notice was issued by the plaintiff only on 07.11.2020 which is not only beyond the period of two years mentioned in the sale agreement, but also three years after the period mentioned in the sale agreement. The suit came to be filed only on 07.12.2020. Therefore, the suit is clearly barred by limitation. When there is no factual dispute with regard to the dates and events, the issue of limitation need not be relegated to trial. 6.The learned counsel for the petitioner had relied upon the Hon'ble Division Bench judgement of our High Court reported in 2020 (1) CTC 38 (K.Murali Vs. M.Mohamed Shaffir); 2021 (1) TLNJ 72 (Civil) (Gowrishankar and another Vs.Balakumar and others); 2021(3) Madras Weekly Notes (Civil) 176 (G.Anandthapadmanaban Vs.Jayalakshmi P.Balu @ Chinnasamy) and the judgment of the Hon'ble Supreme Court reported in 2019 (2) CTC 823 (Raghwendra Sharan Singh Vs.Ram Prasanna Singh (dead) by Lrs. in support of his contentions. 7.Per contra, the learned counsel appearing for the respondent/plaintiff had contended that the cancellation of power deed was not brought to the notice of the power agent or the agreement holder. Out of total sale consideration of Rs.32,00,000/-, Rs.27,00,000/- has already been paid by him. A sum of Rs.5,00,000/- paid on 10.02.2015, Rs.4,00,000/- on 20.03.2017 and Rs.8,00,000/- on 10.05.2019 to the power agent who had in turn had handed over the same to the owner of the property. He had further contended that the power agent has also issued receipts for those payments. A sum of Rs.5,00,000/- paid on 10.02.2015, Rs.4,00,000/- on 20.03.2017 and Rs.8,00,000/- on 10.05.2019 to the power agent who had in turn had handed over the same to the owner of the property. He had further contended that the power agent has also issued receipts for those payments. The first defendant had issued a reply notice on 18.11.2020 wherein they had refused to execute the sale agreement. The suit has been filed on 07.12.2020 within a period of one month from the date of refusal. Therefore, the suit has been filed in time. Hence, he prayed for sustaining the order passed by the trial Court. 8.I have considered the submissions made on either side and perused the material records. 9.The execution of the registered sale agreement by the power agent in favour of the plaintiff on 16.07.2012 is not in dispute. The registered sale agreement records that a sum of Rs.10,00,000/- has been received by the power agent. Thereafter, the plaintiff is said to have paid Rs.17,00,000/- to the power agent after obtaining proper receipts from him. The receipt of entire Rs.27,00,000/- from the plaintiff is admitted by the power agent in his reply notice dated 23.11.2020 which is enclosed along with the plaint. 10.A perusal of the sale agreement reveals that it has been entered into on 16.07.2012 in which a period of two years has been specified for completion of the sale deed. Apart from the payment of advance of Rs.10,00,000/-, the balance Rs.17,00,000/- is said to have been paid by the plaintiff to the power agent only after the expiry of this two year period. However, it is contended by the plaintiff as well as the power agent that the entire amount of Rs.27,00,000/- out of Rs.32,00,000/- has been handed over to the original owner namely Sundaragopal. 11.In paragraph No.4 of the written statement, the first defendant has contended that the power deed was cancelled only on the ground that the power agent has not handed over the advance amount of Rs.10,00,000/- to the vendor. Therefore, it is clear that when the power deed was cancelled on 19.07.2012, the vendor was aware that already a registered sale agreement has been entered into by his power agent with the plaintiff. However, there is no record to show that the cancellation was informed to the plaintiff/ agreement holder. Therefore, it is clear that when the power deed was cancelled on 19.07.2012, the vendor was aware that already a registered sale agreement has been entered into by his power agent with the plaintiff. However, there is no record to show that the cancellation was informed to the plaintiff/ agreement holder. 12.The learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court reported in 2019 (2) CTC 823 Raghwendra Sharan Singh Vs.Ram Prasanna Singh (Dead) By Lrs wherein the Hon'ble Supreme Court has rejected the plaint on the ground of limitation. A perusal of the said judgment reveals that the suit was filed for partition, without challenging a gift deed. When the deeds are not in dispute, the Hon'ble Supreme Court has proceeded to reject the plaint on the ground of limitation. The learned counsel for the petitioner has also relied upon a Division Bench judgment of this Court reported in 2020 (1) CTC 38 (K.Murali Vs.M.Mohamed Shaffir) wherein a specific performance suit based upon a sale agreement dated 10.03.2008 was filed in the year 2013. On the facts of that case, the Hon'ble Division Bench found that there are no disputed facts and proceeded to reject the plaint. The learned counsel for the petitioner has also relied upon a judgment of this Court reported in 2021 (1) TLNJ 72 (Civil) (Gowrishankar and another Vs.Balakumar and others) wherein a prayer was sought for to declare a sale deed dated 16.02.2012 as null and void in a suit filed on 23.11.2015. Considering the fact that there is no dispute with regard to the dates, had proceeded to reject the plaint. 13.The learned counsel for the petitioner has also relied upon another judgment reported in 2020 (3) MWN (Civil) 267 (A.E.Gopalan Nambiar Vs.Nirmala Thambi and others) wherein a suit for specific performance was filed in the year 2011 relying upon the sale agreement dated 19.06.1987, the High Court has rejected the plaint on the ground of limitation, applying Article 54. 14.The following factual disputes arise for consideration. a)Whether the power agent had handed over Rs.27,00,000/- to the vendor or not? b)Whether the alleged receipt of sale consideration after the period specified in the agreement would extend the period of agreement or not.? c)Whether the power agent and the agreement holder were put on notice about the cancellation of power deed or not. ? a)Whether the power agent had handed over Rs.27,00,000/- to the vendor or not? b)Whether the alleged receipt of sale consideration after the period specified in the agreement would extend the period of agreement or not.? c)Whether the power agent and the agreement holder were put on notice about the cancellation of power deed or not. ? 15.The primary contention of the learned counsel for the petitioner is that the period specified in the agreement had expired on 16.07.2014 and therefore, the suit filed on 07.12.2020 is barred by limitation in view of Article 54 of Limitation Act. When the above said factual issues have got relevance to consider the period of limitation, unless the above said factual disputes are resolved during the trial, the plea of limitation would continue to be a mixed question of law and facts. 16. In the present case, the plaintiff contends that he had paid Rs.27,00,000/- out of Rs.32,00,000/- to the power agent and the power agent admits the receipt of the said amount. However, the legal heirs of the principal contend that the power deed was cancelled and no amount was paid by the power agent. That apart, the first defendant had refused to execute a sale deed in his reply notice dated 18.11.2020 and the suit has been filed within a month. When the application for rejection of plaint was filed, the chief examination of PW1 was already completed and it was posted for cross examination. In such circumstances, this Court is of the considered opinion that the plaint cannot be rejected at the threshold stage until the factual disputes are resolved. The trial Court has rightly dismissed the application for rejection of plaint. 17.In view of the above said deliberations, there are no merits in the revision. This Civil Revision Petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.