Allowed

Sri.K.H.Hanumanthaiah v. Sri.Prakashchand

Karnataka HC4 Sept 2024CRP/78/2023

Case brief

AI extract

What is this about?

The petitioner challenged the rejection of an application under Order 7 Rule 11 CPC alleging the suit for specific performance was time-barred. The High Court found the suit filed nine years after the agreement, exceeding the 11-month performance period and three-year limitation. The Court allowed the petition, set aside the impugned order, and rejected the plaint.

What did the court decide?

Plaint rejected; impugned order set aside.

Sri.K.H.Hanumanthaiah Vs Sri.Prakashchand — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:36463 CRP No. 78 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CIVIL REVISION PETITION NO. 78 OF 2023 (IO)

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BETWEEN:

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SRI. K.H.HANUMANTHAIAH S/O HANUMAIAH AGED ABOUT 72 YEARS R/AT KETHIGANAHALLI VILLAGE BIDADI HOBLI, RAMANGARA TALUK AND DISTRICT 562019.

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…PETITIONER

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(BY SRI. C VINAY SWAMY, ADVOCATE)

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AND:

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SRI. PRAKASHCHAND S/O H. PARSMAL AGED ABOUT 55 YEARS R/AT NO.18, 3RD CROSS MAHARAJA COMPLEX BVK IYENGAR ROAD BANGALORE 560 009.

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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SMT. VEKATALAKSHMAMMA W/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 55 YEARS

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SMT. RATHNAMMA D/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 50 YEARS

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SMT. HANUMAKKA D/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 46 YEARS

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SRI. MURTHY S/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 44 YEARS

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2 - NC: 2024:KHC:36463 CRP No. 78 of 2023

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SMT. AKKAYAMMA D/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 38 YEARS

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SMT. NAGAMMA D/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 39 YEARS

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SRI. RAMAKRISHNA S/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 37 YEARS

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SRI. RUDRESHA S/O LATE HANUMAIAH @ KUNTEERAIAH AGED ABOUT 35 YEARS

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RESPONDENT NO. 2 TO 9 ARE R/AT KETHIGANAHALLI VILLAGE BIDADI HOBI, RAMANGARA TALUK AND DISTRICT 562019.

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SRI. K.M. RAVINDRA S/O LATE C.K. MAYIGAIAH AGED ABOUT 48 YEARS R/AT KONASALE VILLAGE KOPA HOBLI, MADDUR TALUK MANDYA DISTRICT 571425.

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…RESPONDENTS (BY SRI. L GOPAL GOWDA, ADVOCATE FOR R1; V/O DT. 14.02.2023, NOTICE TO R2 TO R6 IS D/W)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 03.12.2022 PASSED ON I.A 6 IN O.S.NO. 321/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, RAMANAGARA. REJECTING THE I.A.6 FILED UNDER ORDER 7 RULE 11 (A) AND (D) OF CPC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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NC: 2024:KHC:36463 CRP No. 78 of 2023

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ORAL ORDER

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The petitioner challenges the order passed by the Trial Court, which rejected the application filed under Order 7 Rule 11 (a) & (d) of the Code of Civil Procedure (CPC) by the petitionerDefendant No. 9.

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The plaintiff filed a suit in O.S. No. 321/2016 for the specific performance of the agreement of sale dated 03.10.2007 and sought a declaration that the registered sale deed dated 07.07.2011, standing in the name of Defendant No. 10, is not binding on the plaintiff.

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The plaintiff contends that the agreement of sale was executed in his favor by Defendant Nos. 1 to 9, who conveyed the subject property for a valuable sale consideration of Rs. 48,75,000/-, of which a sum of Rs.6,50,000/- was paid in various installments. According to the terms of the agreement, 11 months were stipulated to complete the sale transaction, and the defendants agreed to obtain permission for the sale of the subject land, as it was 'Inamthi land'.

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Despite several requests, the defendants did not perform their part of the contract. Therefore, the plaintiff approached the Office of the Sub-Registrar at Ramanagara and was shocked to learn that an absolute sale deed had been executed in favor of Defendant No. 10 by Defendant Nos. 1 to 9 on

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NC: 2024:KHC:36463 CRP No. 78 of 2023

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07.07.2011. The plaintiff asserts that the cause of action to file the suit arose on 03.10.2007.

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Defendant No. 9 entered appearance and filed an application under Order 7 Rule 11 (a) and (d) read with Section 151 of the CPC, which was rejected by the Trial Court. The Court noted that the suit was filed not only after the lapse of 11 months as specified in the recitals of the sale agreement but also filed 9 years after the date of the agreement of sale, rendering it barred by limitation. The Trial Court's rejection of the application prompted Defendant No. 9 to file the present petition.

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The learned counsel for the petitioner-Defendant No. 9 contends that the agreement of sale was executed on 03.10.2007, and according to its terms, sale deed was to be executed within 11 months. Consequently, the suit filed 9 years after the expiration of the 11-month period is barred by limitation under Article 54 of the Limitation Act. Therefore, the impugned order passed by the Trial Court is not legally sustainable.

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In support of this argument, reliance is placed on the following decisions:

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i) Usha Devi & Ors v. Ram Kumar Singh & Ors, Civil Appeal No. 8446 of 2024, dated 5.8.2024 (2024 INSC 599).

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ii) Fatehji and Company & Ors v. L.M. Nagapal & Ors, AIR 2015 SC 2301.

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NC: 2024:KHC:36463 CRP No. 78 of 2023

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iii) Ramisetty Venkatanna & Ors v. Nasyam Jamal Saheb & Ors, 2023 (246) AIC 98.

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iv) Ragawendra Sharan Singh v. Ram Prasanna Singh ( dead) by LR's, AIR 2019 SC 1430.

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After carefully examining the arguments presented by the learned counsel for both parties and reviewing the plaint and the agreement of sale, the question for consideration is:

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Whether the plaintiff has established that the suit is barred by limitation, and whether the plaint is liable to be rejected under Order 7 Rule 11(a) & (d) of the CPC?

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A review of the plaint indicates that the agreement of sale was executed on 03.10.2007, wherein the defendants agreed to convey the subject property to the plaintiff for a valuable consideration of Rs.48,75,000/-, with certain amounts paid through installments.

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According to the terms of the agreement, the defendants were required to execute the sale deed within 11 months after obtaining the necessary permission from the competent authority. Despite the agreement being executed on 03.10.2007 and the sale transaction to be completed within 11 months, the suit was instituted only in the year 2016. The plaint states that the cause of action arose on 03.10.2007 when the agreement was executed.

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The Apex Court in Usha Devi & Ors v. Ram Kumar Singh & Ors , supra, held that a specific date fixed for performance

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NC: 2024:KHC:36463 CRP No. 78 of 2023

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leads to a limitation period of three years from that date, which would expire on 16.01.1993 in that case.

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In Fatehji and Company & Ors v. L.M. Nagapal & Ors, the Apex Court clarified that Article 54 of the Limitation Act does not differentiate between cases where possession has been delivered in part performance of the agreement and those where it has not. The requirement to obtain permission prior to performance does not prevent the cause of action for filing a suit for specific performance from arising. Moreover, the absence of a specified future date for performance does not constitute a ground for delaying the performance of the agreement.

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The Apex Court in Eldeco Housing and Industries Ltd. v. Ashok Vidhyarthi & Ors , 2023 INSC 1043, 2023 SCC OnLine SC 1612, ruled that the remedy under Order 7 Rule 11 CPC is a special and independent remedy. The Court is empowered to summarily dismiss a suit at the threshold without proceeding to record evidence or conducting a trial if satisfied that the action should be terminated on grounds contained in Order 7 Rule 11. The underlying objective of Order 7 Rule 11 is to prevent unnecessary prolongation of proceedings in cases where a suit is barred by limitation. Thus, it is necessary to conclude sham litigation to avoid wasting judicial resources.

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The power conferred on the Court to terminate a civil action is significant, and the conditions outlined under Order 7 Rule 11 must be strictly adhered to.

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NC: 2024:KHC:36463 CRP No. 78 of 2023

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The legal principles established in the aforementioned decisions can be summarized as follows:

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A plaint may be rejected if it is barred by law, including if it is time-barred under the Limitation Act. The court must rely solely on the averments in the plaint to determine whether it should be rejected, assuming the averments are true. It cannot consider the written statement or other evidence at this stage.

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Limitation issues are mixed questions of law and fact. The starting point of the limitation period depends on the facts of each case and must be determined before concluding whether a suit is time-barred.

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Courts must examine the entire plaint, not just selected portions, to ascertain whether it sets out a valid cause of action or if the suit is barred by law.

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Under Article 58 of the Limitation Act, 1963, the limitation period begins when the right to sue first accrues. Subsequent violations of the right do not reset the limitation period.

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A review of the plaint and the agreement of sale dated 03.10.2007 clearly indicates that the sale transaction was to be completed within 11 months from the date of the agreement. No

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NC: 2024:KHC:36463 CRP No. 78 of 2023

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further extension for completing the sale consideration was stipulated, even after obtaining the necessary permission from the competent authority. An absolute sale deed was executed in favor of Defendant No. 10 by Defendant Nos. 1 to 9 on 07.07.2011. The plaintiff asserts that the cause of action arose on 03.10.2007 and also when he visited the office of the Sub-Registrar in May 2016 (refer to Pg. 28) and became aware of the sale deed executed in favor of Defendant No. 10. This purported cause of action appears illusory and seems to have been fabricated solely to circumvent the provisions of Order 7 Rule 11(d) CPC. Thus, the averments in the plaint clearly indicate that the suit, having been filed 8 years after the expiration of the 11-month period specified in the agreement, is barred by limitation as specified under Article 54 of the Limitation Act.

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Article 54 of the Limitation Act, 1963, stipulates that a suit for specific performance must be filed within 3 years from the date fixed for performance, or if no such date is fixed, from the date when the plaintiff first notices that performance has been refused.

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In light of the foregoing, it is evident from the averments in the plaint that the suit is barred by the law of limitation. Therefore, the impugned order passed by the Trial Court is not legally sustainable. Accordingly, I pass the following:

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ORDER

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i) This CRP is allowed; and

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NC: 2024:KHC:36463 CRP No. 78 of 2023

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ii) The impugned order dated 03.12.2022 passed by the Principal Senior Civil Judge and CJM, Ramanagara in O.S.No.321/2016 on I.A.No.6 is hereby set aside, and I.A. No.6 is accordingly allowed. Consequently, the plaint stands rejected.

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Sd/(HEMANT CHANDANGOUDAR) JUDGE

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Sri.K.H.Hanumanthaiah v. Sri.Prakashchand

Case brief

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Sri.K.H.Hanumanthaiah v. Sri.Prakashchand

Case brief

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Sri.K.H.Hanumanthaiah Vs Sri Prakashchand