Dismissed

Shaligram Ananda Patil and Others v. Dilip Harakchand Jain

Bombay HC29 Jan 2018CRA/7/2018

Case brief

AI extract

What is this about?

This revision application challenges the Trial Court's refusal to reject a plaint for specific performance as barred by limitation. The High Court held that limitation is a mixed question of law and facts, requiring full construction of plaint averments, and thus the impugned order was not interference-worthy.

What did the court decide?

Application dismissed with no order as to costs.

Shaligram Ananda Patil and Others Vs Dilip Harakchand Jain — Specific Performance | Bombay HC (2018)

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( 1 ) 3-CRA 7 of 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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3 CIVIL REVISION APPLICATION NO. 7 OF 2018

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1) Shaligram Ananda Patil Age: 70 years, Occu.: Agril.

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2) Bharat Ananda Patil (since deceased through his Lrs.)

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2A) Yogesh Bharat Patil Age: 38 years, Occu.: Agril.

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2B) Jayesh Bharat Patil, Age: 35 years, Occu.: Agril.

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2C) Sunandabai Bharat Patil Age: 55 years, Occu.: Agril,

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All through G.P.A.holder

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3)Shivaji Ananda Patil
Age: 65 years, Occu.: Retired,
All R/o.Pailad, At/Post/Tal.Amalner,
Dist.Jalgaon. ..Applicants
VERSUS
.Dilip Harakchand Jain
Age: 50 years, Occu.: Business,
R/o.Dhule Road, At/Post/Tal.Amalner,
Dist.Jalgaon. ..Respondent
...
Advocate for Applicants : Mr.Pawar Pawan B.
Advocate for Respondent : Mr.R.R.Sancheti h/f.
 Mr.R.R.Mantri
...

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( 2 ) 3-CRA 7 of 2018

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CORAM : M.S.SONAK, J. DATE : 29.1.2018

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ORAL JUDGMENT:-

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1)This civil revision application challenges order
dated 28.11.2017 by which the learned Trial Court has
dismissed the applicants' application under Order 7 Rule
11(d) of the Code of Civil Procedure.

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2) The learned counsel for the applicants submits that from reading of the plaint, it is clear that suit for specific performance was barred by law of limitation. He points out that the agreement in this case is dated 29.12.2010. The agreement itself indicates that time or essence of the sale formality has to be completed within nine months i.e. 29.9.2011. He submits that the Suit which is instituted on 21.10.2015 is e x-facie and barred by law of limitation. He relied on Shri Veershaiv Cooperative Bank Ltd. Vs. Arvind Daulu Patil [ 2005 (4) MAH.L.J., 268 ] and Hardesh Ores P.Ltd. Vs. Hede and

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( 3 ) 3-CRA 7 of 2018

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Company [ 2007 (5) MAH.L.J. (SC) 577 ].

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3)In the present case, from the perusal of the plaint,

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it cannot be said that from the statement of the plaint,
it is crystal clear that the Suit stands barred by
limitation. The agreement of which specific performance
is applied for, no doubt, makes reference to nine months
within which the sale formalities are to be completed.
However, there appears no dispute that sell require prior
permission from certain authorities before the same could
be effected. The permission was rejected some time in
2014. The issue as to whether the time or essence of the
contract itself is arguable issue. In any case, at the
stage of application under Order 7 Rule 11(d) of the Code
of Civil Procedure what is relevant is averments in the
plaint and not the defence. As long as the averments in
the plaint do not attract clear bar of limitation, there
is no question of exercising of powers under Order 7 Rule
11 (d) of the Code of Civil Procedure. The issue of

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limitation in the present case at the highest is a mixed
question of law ans facts. Therefore, there is no case
made out to interfere in the impugned order made by which

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the Trial Court has declined to invoke the provisions of
Order 7 Rule 11(d) of the Code of Civil Procedure and
rejected the plaint.

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4) The decision in Shri Veershaiv Co-operative Bank

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Ltd. (supra), is related to framing of preliminary issue.
A preliminary issue is usually framed on the basis of the
defence raised in the written statement. Parties were
also permitted to lead evidence in support of preliminary
issue. The position as regards exercise of powers under
Order 7 Rule 11(d) of the Civil Procedure Code is quite
different. In such a case, the defence is quite
irrelevant.

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5)In Hardesh Ores Pvt.Ltd. (supra) is the only

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authority for the proposition that law of limitation is

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also law for purposes of Order 7 Rule 11(d) of the Code
of Civil Procedure. This Judgment otherwise holds that
for exercise of power under Order 7 Rule 11(d), averments
made in the plaint in their entirety must be held to be
correct. The test is whether the averments made in the
plaint if taken to be correct in their entirety, a decree
would be passed. It is not permissible to cull out a
sentence or a passage and to read it out of the context
in isolation. Although it is the substance and not
merely the form that has to be looked into, the pleading
has to be construed as it stands without addition or
subtraction of words or change of its apparent
grammatical sense. The authority infact assists the
respondent rather than the applicants.

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6)For the aforesaid reasons, this civil revision

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application is dismissed.

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7) There shall be no order as to costs.

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( 6 ) 3-CRA 7 of 2018

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8)It is clarified that observations now made in this

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order are limited for the purpose of deciding applicant's
application under order 7 Rule 11(d) of the Code of Civil
Procedure. Therefore, the Trial Court need not be
influenced by such observations while deciding Suit
including issue of limitation on its own merits and in

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accordance with law.

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SPT/3-CRA 7 of 2018

Shaligram Ananda Patil and Others v. Dilip Harakchand Jain

Case brief

What is this about?

What did the court decide?

Shaligram Ananda Patil and Others v. Dilip Harakchand Jain

Case brief

What is this about?

What did the court decide?

What the court decided

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