Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010134842019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4934 OF 2019
IN
SUIT NO.1166 OF 2018
Mr. Yogesh Kanji Manek and another., ...Plaintiffs.
Versus.
M/s. Samta Builders Pvt. Ltd., and others. ...Defendants.
Appearance:
Advocate Jayesh Jain for Plaintiffs.
Advocate Vikramjeet Garewal for defendants.
CORAM : HIS HONOUR JUDGE
R.V. Bhakta
COURT NO.2
DATED : 22nd August, 2024.
ORAL ORDER
This is the notice of motion taken by the defendants to reject the
plaint under order VII Rule 11 of the C.P.C. on the ground of limitation.
2. The plaintiffs have contested the present notice of motion by
filing their reply in which they have denied most of the averments of
the notice of motion which are going against their interest.
-- 1 of 7 --
ORDER ..2..
3. From the rival pleading of both the parties following points arises
for my determination and I have recorded my findings thereon as
under:-
Sr. No. POINTS PENDINGS
1. Whether the defendants prove that
the plaintiffs suit is liable to be
rejected under Order VII rule 11 of
the C.P.C. on the ground of
limitation ? In the negative.
2. What order and decree ? As per final order.
REASONS
AS TO POINT NO.1 :
4. It is the case of the defendants that the plaintiffs have filed
present suit against them for specific performance of the agreement i.e.
allotment letter dated 20.10.2003. The defendants added that they have
terminated the said allotment letter by virtue of notice dated
17.11.2006. Therefore, the plaintiffs were well aware that by virtue of
termination notice dated 17.11.2006 the defendants have refused to
perform the contract. As a result, as per section 54 of Limitation Act,
the plaintiffs ought to have filed this suit within a three years from the
date of termination of the allotment letter. However, the plaintiffs have
field the present suit in the year 2018 ie., after more than 9 years from
the date of cause of action. Hence, the plaintiffs suit is hopelessly barred
on the ground of limitation. In support of this the defendants have
relied on a case law in a case of
Kanayalal Madhavji Thakkar V/s. Shree
Padmanabh Builders., reported in 2011(1) Mh.L.J., 939 in which it has
held that "if any statement in the plaint which has to be accepted on its
face in arriving at a determination as to whether the suit is barred by
any law, no amount of evidence can be let in for the purpose making
that determination". The defendant has also relied on a case law in case
-- 2 of 7 --
ORDER ..3..
of
Raghwendra Sharan Singh V/s. Ram Prasanna Singh (Dead) by legal
representatives., reported in (2020) 16 SCC 601 in which it has held
that "plaintiff cannot be allowed to circumvent that provision by means
of clever drafting so as to avoid mention of those circumstances by
which suit stood barred by limitation". In short the defendants have
relied on number of case laws in which it has held that if the suit is
hopelessly barred on the ground of limitation plaint can be rejected
under order VII rule 11 of the C.P.C.
5.
Per contra it is the case of the plaintiffs that they have filed the
present suit against the defendants for the compliance of the allotment
letter dated 20.10.2023 as per the MOFA which provides continuous
cause of action to the plaintiffs until the builder comply his part. They
further added that the question of limitation is a mix question of the
facts and law which has to be decided on merit. It is their further case
that initially they had filed a case against the defendants before the
District Consumer Forum on 21.01.2013. Thereafter, they challenged
the order of District Consumer Forum before the State Consumer Forum
in which permission is granted to them to file a suit before this Court as
per the order dated 08.08.2016 passed by the State Consumer Forum.
After that they have filed the present suit on 09.01.2018. Hence suit is
well within limitation.
6. I have gone through the notice of motion, say, citations and heard
argument of both the sides.
7. It is to be noted here that the Clause (d) of Rule 11 of Order 7 of
C.P.C. provides that in case where the suit appears from the statement in
the plaint to be barred by any law the plaint shall be rejected by the
-- 3 of 7 --
ORDER ..4..
Court. Clause (d) of Rule 11 of Order 7 of C.P.C. applies to those cases
only where the statement made by the plaintiffs in the plaint without
any doubt or dispute shows that the suit is barred by any law in the
force. It further provides that provisions of clause (d) of Rule 11 of the
Order 7 of the C.P.C. can be invoked only when suit is barred by any law
in view of the statement made by the plaintiffs themselves in the plaint.
8. It is needless to mention here that it is the settled position of law
that the question of limitation can be decided on admitted facts, it can
be decided as a preliminary issue under Order 14 Rule 2(2)(b) of C.P.C.
Once facts are disputed about limitation, the determination of the
question of limitation also cannot be made under Order 14 Rule 2 (2) of
C.P.C. as a preliminary issue or any other such issue of law which
requires examination of the disputed facts. The issue of limitation is
mixed question of law and facts.
9. In the background of above said legal position it is necessary to
examine the plaint to verify that whether the plaintiffs suit is prima
facie barred by law of limitation which has to be rejected under Order
VII Rule 11 of the C.P.C.
10. As stated supra, it is the case of the defendants that the plaintiffs
suit is hopelessly barred by law of limitation. According to the
defendants that as per the notice dated 17.11.2006, the defendants
have terminated the allotment letter dated 20.10.2003. Therefore, the
plaintiffs ought to have filed this suit within a three years from the date
of receipt of the above said termination notice dated 17.11.2006.
According to the defendants that though the plaintiffs in their say
raised the contention that they have filed their suit under the provisions
-- 4 of 7 --
ORDER ..5..
of MOFA Act, the provisions of MOFA Act, are not applicable to them as
they are the investors and not consumers. As a result, the plaintiffs suit
is under the provisions of Specific Relief Act, which has to be filed
within three years from the date of cause of action under section 54 of
the Limitation Act.
11. On the contrary, it is the case of plaintiffs that they have filed the
present suit under the provisions of MOFA Act, which provides
continuous cause of action until the builder comply their part. It is the
further contention of the plaintiffs that the questions whether the
plaintiffs are investors or consumers and whether the suit is within a
limitation or not, have to be decided on merit after full fledge trial on
the basis of evidence available on record.
12. In this suit it is admitted fact on record that the defendants have
executed allotment letter dated 20.10.2003 in favour of the plaintiffs in
respect of suit property. As stated supra, it is the case of the defendants
that on 17.11.2006 they have terminated the above said allotment
letter/agreement by sending termination notice to the plaintiffs.
Therefore, on the date of termination letter dated 17.11.2006 the
plaintiffs come to know that the defendants have refused to perform the
contract. Therefore, the date of termination of the contract is a date of
cause of action. As a result, the plaintiffs ought to have filed this suit
within a three years from the date of termination notice dated
17.11.2006. Hence as per article 54 of the Limitation Act, plaintiffs suit
is barred by way of limitation.
13. On the contrary as stated supra, it is the case of the plaintiffs that
they have filed the suit against the defendants under the provisions of
-- 5 of 7 --
ORDER ..6..
MOFA Act, which provides continuous cause of action until the builder
complete their part. On this point, it is the contention of the defendants
that the plaintiffs are investors and not consumers and therefore, the
provisions of MOFA Act, are not applicable to them. In my view,
whether the plaintiffs are investors or consumers and whether their suit
comes under the MOFA Act or not, is a question which has to be decided
on merit by giving fair opportunity to both the parties to lead the
evidence. Hence, to decide this question full fledge trial is required.
Furthermore, it is needless to mention here that the limitation is a mix
question of facts and law which has to be decided on merit. Specifically
when there is a dispute regarding application of MOFA Act. As a result,
the case laws cited by the defendants are not applicable here.
14. At this juncture, it is further necessary to mention here that it is
an admitted fact on the record the plaintiffs are fighting their legal
battle before the consumer court since 2012. In these circumstances, if
the plaintiffs suit is dismissed at this initial stage without giving them
an opportunity to lead evidence on the above said questions, it will
amounts to refuse them to give fair opportunity to context their suit on
merit. Hence, plaint cannot be rejected under VII Rule 11 of the C.P.C.
Hence, following order.
ORDER
1. Notice of Motion No.4934 of 2019 stands rejected.
2. No order as to costs.
(R.V. Bhakta)
Judge
City Civil Court, Gr.Mumbai
Date : 22.08.2024
Typed on : 22.08.2024
HHJ signed on : 22.08.2024
-- 6 of 7 --
ORDER ..7..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 22.08.2024, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.V. Bhakta
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
22.08.2024
JUDGMENT/ORDER signed by P.O.
on
22.08.2024
JUDGMENT/ORDER uploaded on 22.08.2024
-- 7 of 7 --