Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.59 OF 2020
CNR: MHCC01-000128-2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.59 OF 2020
(HIGH COURT NOTICE OF MOTION NO.824 OF 2012)
IN
SUIT NO.3910 OF 2011
M/s. M.G. Builders .. Plaintiffs
V/s.
1 Mrs. Pitalian Creado & Ors. .. Defendants
Appearances :-
Adv. Sarika Mehra for plaintiffs.
Adv. Gauraj Shah a/w Adv.Trupti Shetty & Adv. Samruddhi Sonar
for defendant no.2 to 4.
Coram : R. M. Sadrani
Judge, City Civil Court,
Greater Bombay, C.R. No.07.
DATED : 11th February, 2021.
ORDER
1 This Notice of Motion is taken out by the defendant
Nos.2 to 4 under Order VII Rule 11 of Code of Civil
Procedure(hereinafter referred to as CPC).
2 Learned Adv. Gauraj Shah for the defendant Nos.2 to 4
argued that the plaintiff is a builder. Defendant Nos.1 to 4 are the
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legal heirs of the original owner of the suit properties i.e. Plot
Nos.335 and 339 ad-measuring 968.90 sq. mtrs(hereinafter
referred to as suit properties). Defendant No.5 is a construction
company with whom there was an agreement in the year 1979 to
sell the suit properties. Defendant No.6 is a Co-operative Housing
society, a building was constructed on the part of the suit
properties. Defendant No.7 is also a builder with whom plaintiff
claiming that the defendant Nos.1 to 4 are creating third party
interest.
3 As per case of the plaintiff, defendant No.5 agreed to
purchase the suit properties from the original owner in the year
1979. There were no any registered conveyance deed in favour of
the defendant No.5. In the year 1985, defendant No.5 agreed to
sell out the suit properties in favour of the plaintiff. Accordingly,
plaintiff was put in possession. It is also case of the plaintiff that
thereafter, plaintiff constructed a building as Co-operative Housing
Society under the name and style as defendant No.6. According to
the plaintiff, he noticed that defendant No.1 to 4 are collecting
rent from some of the tenants on the suit properties. Not only this,
he noticed board of the defendant No.7. On 7th March 2011, he
issued notice to the defendant No.1 to 4 calling upon them to
execute deed of conveyance in respect of the suit properties in
favour of the plaintiff and not to deal with the properties. This
notice was replied by the defendant No.1 to 4 on 31/3/2011
denying all the allegations in the notice and not aware about any
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agreement. It is also stand of the defendant No.1 to 4 that after
demise of the original owner, they being legal heirs, in respect of
plot No.339, therefore, their names were recorded in the revenue
record. He argued that as per agreement executed by the
defendant No.5 in favour of the plaintiff after reading the plaint as
it is and the documents of record, it is clear that sale deed was to
be executed within two years from the execution of that
agreement. As per clause 13 of agreement in respect of plot
No.335 dt.25th February 1985, sale to be executed within two
years. Another agreement in respect of the plot bearing No.339
executed on 9th December 1985 in which as per clause No.18,
conveyance shall be executed within a period of two years of the
payment. He pointed out that as per pleadings itself, entire
payments were done without giving specific date of the payments.
He argued that suit is to be filed within a period of three years as
per entry No.54 of schedule of Limitation Act. Said three years
commenced if the sale deed was not executed within two years as
agreed between the parties. Under these circumstances, suit filed
in the year 2011 is beyond period of limitation.
4 He further argued that suit is value and court fee is
paid on Rs.5,25,000/-, however, suit properties is located in prime
locality of the Vile Parle in urban area and its value in the year
2011 was more than Rs.10 Crores. As the suit is not properly
valued on this ground also suit is required to be dismissed under
Order VII Rule 11 of CPC.
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5 Learned Adv. Sarika Mehra for plaintiffs opposed the
Notice of Motion. She argued that in fact, Notice of Motion is
barred by the principles of res judicata. Defendant Nos.1 to 4 filed
application below Ex.5 under Section 9A of CPC for framing
preliminary issue on the point of limitation raising same grounds
as raised in the present Notice of Motion. Application Ex.5 was
decided on 16/02/2015 observing question of limitation is a mixed
question of law and facts and rejected the application. This order
is challenged before the Hon’ble High Court in Writ Petition
No.8090 of 2015. Hon’ble High Court upheld the order of this
Court observing that issue of limitation can be heard as
preliminary issued. Therefore, present Notice of Motion is not
maintainable and deserves to be rejected. She further argued that
another ground raised in the Notice of Motion is regarding non
payment of court fees. The suit is valued as per consideration
agreed in the agreement and accordingly, court fees is paid. If the
Court direst otherwise, she is ready to comply with the order and
pay deficit court fees if any.
6 After hearing both the sides, I go through record. The
suit is for specific performance of contract alongwith consequential
relief. Question raised regarding value of the suit and inadequate
court fees. As per contention of the advocate for defendant No.2
to 4, suit properties is more than Rs.10 Crores when the suit was
filed. For ready reference, Section 6(xi)(a) of Bombay Court Fees
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Act is reproduced as under.
6. Computation of fees payable in certain suits.
(xi) for specific performance.
In suits for specific performance-
(a) of a contract of sale – according to the amount of
the consideration.
7 After reading above provision, it is clear that court fees
is required to be paid on the basis of amount of consideration
agreed between the parties. Defendants Nos.2 to 4 are not
disputing that both the agreements i.e. consideration is fixed for
plot No.339, Rs.2,25,000/- and consideration is fixed for another
plot No.335 is Rs.3,00,000/-, thus total consideration of
Rs.5,25,000/-. This, it is clear that suit is properly valued.
8 Another ground raised by the defendant Nos.2 to 4
under this Notice of Motion is period of limitation. As per case of
the plaintiff and from the pleadings, original owner and defendant
No.5 entered into an agreement for sale/purchase of those plots
on 17th September 1979. These agreements are not produced by
any of the parties on record, therefore, it is not clear how much
time originally granted to defendant No.5. As per Section 13(1)(b)
of Specific Relief Act, for ready reference produced as under
13. Rights of purchaser or lessee against person with
no title or imperfect title.-(1) Where a person
contracts to sell or let certain immovable property
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having no title or only an imperfect title, the
purchaser or lessee (subject to other provisions of this
Chapter), has the following rights, namely.-
(a)……
(b) where the concurrence of other persons is
necessary for validating the title, and they are bound
to concur at the request of the vendor or lessor, the
purchaser or lessee may compel him to procure such
concurrence, and when a conveyance by other
persons is necessary to validate the title and they are
bound to convey at the request of the vendor or
lessor, the purchaser or lessee may compel him to
procure such conveyance;”
9 In view of above provision without proper evidence, it
is not safe to reach to conclusion that suit is barred by limitation
on the basis of agreement between defendant No.5 and plaintiff.
10 Notice of Motion is moved on the basis of agreement
between defendant No.5 and plaintiff which were executed in the
year 1985. Grounds raised in the Notice of Motion regarding
limitation is based on agreements of the year 1985 which were
executed by the defendant No.5 in favour of the plaintiff agreeing
to execute sale deed within two years, however, defendant No.2 to
4 or their original owners were not party to these agreements.
Therefore, from the record, it is not clear that how much time was
granted to execute the sale deed by the original owners to
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defendant No.5 in the year 1979. There is pleading on the point
that there was an agreement between the original owners and
defendant No.5 in the year 1979, therefore, it is question of law as
well as facts which requires evidence and not pure question of
limitation.
11 Learned advocate for the defendant Nos.2 to 4 placed
his reliance in the matter of Lily Realty Private Limited-Applicant/
Defendant No.11 in the matter between Kalpesh Kantilal Dedhia
V/s. Altius Developers Private Limited & Ors., order passed by
Hon’ble our High Court in Notice of Motion No.1776 of 2015 in
Suit No.512 of 2013., particularly paragraph Nos.16, 34 and 35.
For ready reference, these paragraphs are reproduced as under.
16. In my opinion it is very clear that on these facts
alone, based on a bare reading of the Plaint, the Suit
would be barred by limitation, unless the bar of
limitation is saved by any of the provisions of the Act.
The Plaintiffs, being obviously conscious of this
position, have sought to invoke an exclusion of time in
paragraph 24 of the Plaint. This is really the only issue
to be considered by the Court.
34. The question that was referred to a larger Bench,
as stated in paragraph 5 of the Judgment in Balsaria
Construction (supra), was, “Whether the words ‘barred
by law under Order 7 Rule 11(d) would also include
the ground that it is barred by the law of limitation.”
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35. This question never came to be answered by the
Three Judge Bench constituted in the case of Balsaria
construction, because, as noted in paragraph 6 of the
Final Judgment in Balsaria Construction, the Three
Judge Bench observed as follows:
“…...It is not the case of either side that as an absolute
proposition an application under Order 7 Rule 11(d)
can never be based on the law of limitation. Both sides
state that the impugned judgment is based on the facts
of this particular case and the question whether or not
an application under Order 7 Rule 11(d) could be
based on law of limitation was not raised and has not
been dealt with. Both sides further state that the
decision in this case will depend upon the facts of each
case.”
12 From the reading of paragraph No.16, it is clear that
observation was made by the Hon’ble High Court considering the
facts of that case. From reading paragraph Nos.34 and 35, it makes
clear that point of limitation depends upon the facts of each case.
Considering facts of the present case, in my opinion, defendant
Nos.2 to 4 have not made out a case under Order VII Rule 11 of
CPC to dismiss the suit. Notice of Motion deserves to be rejected.
In the facts and circumstances of case, no order as to cost. Hence, I
pass following order.
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ORDER
1 Notice of Motion No.59 of 2020 is hereby rejected.
2 No order as to cost.
3 Notice of Motion is disposed off accordingly.
(R. M. Sadrani)
Judge,
City Civil and Sessions Court,
Dated : 11/02/2021. Greater Bombay.
Dictated on :11/02/2021.
Transcribed on :11/02/2021.
Signed on :11/02/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.
UPLOADED ON: 12/02/2021.
(Santosh B. Sawant)
(Selection Grade Stenographer)
Name of the Judge(with Court Room
No.)
Shri. R. M. Sadrani, Judge, C.R.No.07.
Date of pronouncement of
Judgment /Order
11/02/2021.
Judgment/Order signed by P.O. on 11/02/2021.
Judgment/Order uploaded on 12/02/2021.
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