Final Order 3

Order Details: COPY OF ORDER
Pdf Text: CS205/24
Shivraj Singh Vs. Vijya Kumar Mishra And Ors.
31.08.2024
Present: None.
1. Arguments on the point of limitation were heard on last date of
hearing. Notice in this matter is yet to be issued.
2. In this suit, plaintiff has prayed for a decree for a sum of Rs. 15
lac with interest amongst other reliefs. Even though, in the title
of the plaint, plaintiff has stated that the present suit is
inter-alia
a suit for specific performance, but in the prayer clause, only
money decree is sought. As per Counsel for plaintiff, plaintiff is
essentially suing the defendants for recovery of the said
amount.
3. In brief, plaintiff alleges that D-1 was his neighbour and he
offered the plaintiff to invest money in a land measuring 300 sq
yds situated at Koshal Puri, Sabhapur, Shahdara, Delhi-94. As
per plaintiff, D-1 represented to plaintiff that he is the owner of
the suit property and the amount invested shall be doubled in
about 4-5 years. This was in 2009.
4. As per plaintiff, plaintiff purchased a piece of land from D-1
and paid Rs. 15 lac to D-1. As per him, he signed some
documents at that time. The said documents are annexed with
the plaint which are described as GPA, Agreement to Sell, Deed
of Will, Possession letter and a Receipt. All the said documents
are dated 17.03.2009.
5. As per plaintiff, by virtue of the said documents, plaintiff
purchased the said land and obtained possession of the same.
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6. It is his case that in July 2021, when he visited the said
property, D-2 was present at the suit property and he learnt that
D-2 had purchased the suit property. He further learnt that the
said property does not fall in a residential area but instead, it is
an agricultural land. Plaintiff claims that he was misled by D-1
to believe that D-1 was the owner of the property when in fact,
D-2 was the owner.
7. Thus, plaintiff claims that he made a police complaint to the
police and asked D-1 to return his money. D-1 did not return the
money and thus, he has filed the present suit against both D-1
and D-2.
8. As noted above, plaintiff is only seeking recovery of Rs. 15 lac
with interest. It is not clear from the prayer clause, as to against
which defendant does the plaintiff want the said decree.
9. It is pertinent to note that despite query of this Court from the
Counsel for the plaintiff, no answer was forthcoming on last
date. Be that as it may, since, as per plaintiff, he gave the
alleged amount of Rs. 15 lac to D-1, there is no cause of action
qua the said recovery against D-2 and therefore, there is no
question of proceeding with the present suit qua D-2.
10.Again, as far as D-1 is concerned, plaintiff claims that he
became owner by GPA etc. dated 07.02.2009. Now, it is settled
law that the said documents does not give any ownership rights
to any person and at best, plaintiff could seek specific
performance of the Agreement to Sell entered between him and
D-1. Now, as already noted, plaintiff is not suing D-1 for
specific performance of the said agreement to sell dated
07.03.2009 (as per the plaint; even though, as per the copy of
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the said document placed on record, the said document appears
to be dated November 2009).
11.But, plaintiff has approached this Court for recovery of Rs. 15
lac on the ground that he was malafidely misled about the suit
property. Thus, in sum and substance, plaintiff appears to be
suing the defendants on the ground that there was a breach of
the agreement to sell. This is on account of the fact that on one
hand, plaintiff has not prayed for specific performance of the
agreement to sell in question and on the other, claimed in para
(13) of the plaint that he had requested the defendant No. 1 to
return double the amount of Rs. 15 lac paid by him to D-1. He
goes on to pray for recovery of the said money in this suit. This
essentially means that plaintiff is claiming breach of the
agreement to sell on the ground that D-1 did not have
ownership of the suit property and it was D-2 who was the
owner and therefore, there was breach of agreement.
12.At this stage, I may note that in para 7 of the plaint, plaintiff
claims that he gave Rs. 15 lac to D-1 in cash and thereafter, the
above described property was handed over to plaintiff. Plaintiff
goes on say that thereafter, he visited the property after 4-5
years to take help of D-1 for sale of the same. But, D-1 did not
take any interest in the request of plaintiff. Plaintiff does not say
how and why does he believe that D-2 is the owner of the
property and why did he not visit the suit property till July
2021.
13.Be that as it may, it appears that after the payment of Rs. 15 lac
was purportedly made on or about 17.03.2009, plaintiff
admittedly visited the property about 4-5 years later and
thereafter, in July 2021. He places on record no document or
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even an averment to show that the actual owner of the property
is D-2.
14.Now, if the agreement to sell the land in question took place on
17.03.2009 and plaintiff had purchased the said land on the
understanding that he would sell the same in 4-5 years time
(after the purchase price has doubled to Rs. 30,00,000/- -- as
per para (2) of the plaint); and despite request after 4-5 years
being made by the plaintiff to D-1 to help him sell the land, the
breach of the said agreement took place on or about 2013 or
2014. This is assuming that the agreement dated 17.03.2009
was an agreement of investment (though couched as an
agreement to sell). Now, if the breach of the said agreement
took place in 2013-2014, Under Article 55 of the Limitation
Act, the present suit for recovery of the money (which
essentially is compensation for the breach of contract between
the parties) could have been filed within 3 years when the
contract was broken. This was on or about 2016-2017.
15. It is pertinent to note that plaintiff has not sought
cancellation of any of the documents, which as per him,
gave title of the property claimed to have been
purchased by him. He does not say why such
cancellation is not sought.
16. It was argued on behalf of the plaintiff that since he
became aware about the ownership of D-2 in July 2021,
therefore, the deception of D-1 came in his knowledge
at that time. But, it is pertinent to note that as per his
own claim, D-2 purchased the suit property from D-1
only. It is not clear from the plaint as to when did D-2
purchase the property from D-1. If the purchase of
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property by D-2 from D-1 is subsequent to the
agreement to sell between plaintiff and D-1, then,
before plaintiff can recover any amount from D-1, he
shall have to seek cancellation of the said agreement to
sell and thereafter, could he recover the money. But, as
noted above, he does not seek cancellation of the said
agreement to sell.
17. Again, if the purported sale by D-1 to D-2 is prior to the
agreement to sell between plaintiff and D-1, such fact
should have been pleaded in the plaint and only
thereafter, could the period of limitation can be
calculated based on the relevant Article under the
Limitation Act.
18. At this stage, I may note that the plaint in this case is
not happily worded and diagrammatically opposite facts
have been pleaded by the plaintiff which does not
appeal to logic. At one place, plaintiff claims that the
defendants have no right, title or interest in the suit
property and they are unathorised occupants (see para
18 of the plaint), at other place he claims that D-2 was
found to be in possession as owner of suit property (see
para 10 of the plaint). No explanation is given by the
Counsel for the plaintiff to clarify the said
contradiction. Again, it is not clear why, if the
defendants are unauthorised occupants, plaintiff is not
seeking possession. Again, it is not clear why, if D-2 is
owner, the date when he became owner is not disclosed
to as to understand the nature of reliefs which can be
sought by the plaintiff. As already noted, even the title
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of this suit contradicts with the eventual prayer made in
this suit.
19. Be that as it may, if it is taken that plaintiff had actually
invested the money in the above described property with
an understanding with D-1 that he would get the
plaintiff to recover twice his investment; and despite
requests of plaintiff made about 4-5 years from 2009,
D-1 did not help plaintiff to recover the said money, as
promised, the breach of the said agreement took place
on or about 2016-2017 and thus, the suit for
compensation of the said breach could have been filed
on or about 2016-2017 (as per Article 55 of The
Limitation Act 1963). The present suit was filed on
06.07.2024. This is clearly barred by time. Accordingly,
the present plaint is liable to be rejected.
20. The matter can be looked at from another angle. As per
plaintiff, after he purchased the suit property, he
became the owner of the same. Now, if as per plaintiff,
he is the owner of the suit property, there is no question
of he having a cause of action to seek recovery of the
consideration paid by him to D-1. Simply put, once the
contract of sale was concluded (after the execution of
sale documents mentioned in para 5 of the plaint on
17.03.2009), the said contract stood performed between
plaintiff and D-1 and therefore, plaintiff can now,
without rescinding the said contract, cannot claim
recovery of the consideration amount paid by him. I
may hasten to add herein that this Court is not holding
that there was any actual sale by virtue of documents
mentioned in para 5 of the plaint. This Court is only
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testing the averment of the plaintiff which is that by
virtue of the said documents, he became the owner of
the suit property. Now if, plaintiff is the owner of the
suit property, without he claiming that the said sale was
a nullity or should be so treated in law or that he has
rescinded the said contract, he cannot seek recovery of
the money paid as consideration to D-1.
21. In the entire plaint, plaintiff does not claim that the said
sale made to him is a nullity or that he has rescinded the
said contract. In fact, he categorically avers that he is
the owner of the suit property and D-1 and D-2 have no
right, title or interest or competence to enjoy the suit
property as they are unauthorised occupants of the same
(see para 18 of the plaint). Now if, the same is taken as
correct, there is no disclosure of cause of action in
favour of the plaintiff to seek recovery of the claimed
amount. On this ground also, the present plaint is liable
to be rejected.
22. Before parting with the order, I may note that despite
opportunity, nothing was argued on behalf of the
plaintiff to show that the present suit will be covered by
any other Article of the Limitation Act and based on the
pleadings, as they are, only the Article of Limitation
Act, discussed above appears to have been applicable to
the facts of the case. Even otherwise, for reasons stated
above, apart from the ground of limitation, the plaint is
liable to be rejected on the ground of non-disclosure of
cause of action. Accordingly, plaint is rejected.
23. Let decree sheet be prepared.
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24.File be consigned to Record Room.
Aashish Gupta
DJ-01/NE/KKD/DELHI
31.08.2024
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