Allowed

Sri.K.H.Hanumanthaiah v. Sri Prakashchand

Karnataka HC4 Sept 2024CRP/98/2023

Case brief

AI extract

What is this about?

Civil revision petition challenging rejection of application under Order 7 Rule 11 CPC in a specific performance suit. The Court held that the suit, filed nearly eight years after the agreement's expiry, was barred by limitation under Article 54. The impugned order was set aside and the plaint rejected.

What did the court decide?

Impugned order set aside; plaint rejected under Order 7 Rule 11 CPC.

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

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1 - NC: 2024:KHC:36464 CRP No. 98 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CIVIL REVISION PETITION NO. 98 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, RAMANAGARA TALUK AND DISTRICT- 562 019

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…PETITIONER

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(BY SRI. C VINAY SWAMY, ADVOCATE)

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AND:

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

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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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SRI HANUMANTHAIAH S/O LATE CHIKKAGLAIAH AGED ABOUT 95 YEARS

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SMT GALIHANUMAKKA D/O LATE HANUMANTHAIAH AGED ABOUT 69 YEARS

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SMT KEMPALAKSHMAMMA D/O LATE HANUMANTHAIAH AGED ABOUT 65 YEARS

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SMT CHIKKARUDRAMMA D/O LATE HANUMANTHAIAH AGED ABOUT 64 YEARS

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2 - NC: 2024:KHC:36464 CRP No. 98 of 2023

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SMT MUNINARASAMMA D/O LATE HANUMANTHAIAH AGED ABOUT 62 YEARS

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ALL ARE R/AT KETHIGANAHALLI VILLAGE BIDADI HOBLI RAMANAGARA TALUK AND DISTRICT 562019

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…RESPONDENTS

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(BY SRI. L GOPAL GOWDA, ADVOCATE FOR R1; V/O DT. 20.02.2023 NOTICE TO R2 TO R3 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 3 IN O.S.NO. 324/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, RAMANAGARA. REJECTING THE I.A.3 FILED UNDER ORDER 7 RULE 11 (A) AND (D) OF CPC.

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

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioner challenges the order passed by the Trial Court, rejecting the application filed under Order 7 Rule 11 (a) and (d) of the Civil Procedure Code (CPC) by the petitioner, who is Defendant No.6 in the suit.

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The plaintiff filed a suit in O.S. No. 324/2016, seeking specific performance of an agreement of sale dated 22.05.2008. The plaintiff also sought a declaration that the registered sale deed dated 25.09.2013, executed in favour of Defendant No.6, is not binding upon him.

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NC: 2024:KHC:36464 CRP No. 98 of 2023

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According to the plaintiff, an agreement of sale was executed in his favour by Defendant Nos. 1 to 5 for the sale of the subject property for a consideration of Rs. 30,62,500/-. Out of this amount, the plaintiff claims to have paid Rs. 8,00,000/- in installments. As per the terms of the agreement, 11 months were fixed for completing the sale transaction. The defendants also agreed to obtain the necessary permission for the sale of the property, as it was classified as ‘Inamthi land’.

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Despite repeated requests, Defendant Nos. 1 to 5 allegedly failed to perform their obligations under the agreement. Upon conducting an inquiry at the Office of the Sub-Registrar in Ramanagara, the plaintiff discovered that an absolute sale deed had already been executed in favour of Defendant No.6 by Defendant Nos. 1 to 5 on 25.09.2013. The plaintiff states that the cause of action for the suit arose on 22.05.2008, the date when the agreement was executed.

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Defendant No.6 entered an appearance and filed an application under Order 7 Rule 11 (a) and (d) read with Section 151 of the CPC. The defendant argued that the suit was barred by limitation, as it was filed after 8 years from the date of the agreement, which had an 11-month time frame for execution. The Trial Court rejected the application, prompting Defendant No.6 to file the present petition.

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NC: 2024:KHC:36464 CRP No. 98 of 2023

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The counsel for the petitioner (Defendant No.6) contends that the agreement of sale, dated 22.05.2008, stipulated a period of 11 months for completing the transaction. Therefore, the suit, which was filed 8 years after the expiration of this period, is barred by limitation as per Article 54 of the Limitation Act, 1963. The petitioner submits that the Trial Court's rejection of the application under Order 7 Rule 11 was not legally sustainable.

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In support of the petition, the following decisions were relied upon:

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i) Usha Devi & Ors. v. Ram Kumar Singh & Ors ., Civil Appeal No. 8446 of 2024, dated 05.08.2024 (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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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 LRs, AIR 2019 SC 1430.

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After a thorough examination of the arguments made by both parties' counsel, and after perusing the plaint and the agreement of sale, the primary issue that arises for determination is:

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Whether the suit is barred by limitation, making the plaint liable for rejection under Order 7 Rule 11(a) and (d) of the CPC?

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NC: 2024:KHC:36464 CRP No. 98 of 2023

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On examining the plaint, it is evident that the agreement of sale was executed on 22.05.2008, under which Defendant Nos. 1 to 5 agreed to transfer the subject property to the plaintiff for a consideration of Rs.30,62,500/-, part of which was paid in installments.

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According to the agreement, the defendants were required to execute the sale deed within 11 months after obtaining the necessary permissions from the competent authorities. Although the sale transaction was to be completed within 11 months, the plaintiff only filed the suit in 2016. The plaintiff stated in the plaint that the cause of action arose when he visited the office of the Sub-Registrar in May 2016 and discovered the sale deed executed in favour of Defendant No.6.

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In Usha Devi & Ors. v. Ram Kumar Singh & Ors., the Supreme Court held that when a specific date is fixed for performance, the limitation period begins from that date. In that case, the period of one month expired on 16.01.1990, and the limitation period of 3 years ended on 16.01.1993.

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In Fatehji and Company & Ors. v. L.M. Nagapal & Ors., the Supreme Court ruled that Article 54 of the Limitation Act applies uniformly, regardless of whether possession of the property was delivered in part performance. If a condition like obtaining permission is required before completing the contract, the non-

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NC: 2024:KHC:36464 CRP No. 98 of 2023

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obtaining of permission cannot be a ground for extending the limitation period.

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The Supreme Court, in Eldeco Housing & Industries Ltd. v. Ashok Vidhyarthi & Ors., (2023 INSC 1043: 2023 SCC OnLine SC 1612), clarified that the remedy under Order 7 Rule 11 CPC is an independent and special remedy, empowering courts to dismiss a suit at the threshold if it is barred by law, including limitation. The objective is to prevent the prolonging of litigation, which has no merit.

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The Apex Court further noted that the power conferred under Order 7 Rule 11 is drastic and should only be invoked in clear cases where the conditions stipulated are strictly met.

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What emerges from the legal principles established in the aforesaid decisions is summarised as follows :

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A plaint can be rejected if it is barred by law, including being time-barred under the Limitation Act.

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The court, when considering an application under Order 7 Rule 11, must rely only on the plaint's averments and assume them to be true. Evidence or written statements are not to be considered at this stage.

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Issues of limitation often involve mixed questions of law and fact, which depend on the specific facts of each case.

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NC: 2024:KHC:36464 CRP No. 98 of 2023

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The limitation period under Article 54 of the Limitation Act begins from the date fixed for performance or, if no date is fixed, from the date when the plaintiff becomes aware of a refusal to perform.

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Upon a close reading of the plaint and the agreement of sale, it is clear that the transaction was to be completed within 11 months from 22.05.2008. There was no extension of time agreed upon for the sale. The absolute sale deed in favour of Defendant No.6 was executed on 25.09.2013. The plaintiff's claim that the cause of action arose in 22.05.2008 and also, when he discovered the sale deed, appears to be an afterthought, intended to circumvent the provisions of Order 7 Rule 11(d) of the CPC. The suit was filed well beyond the limitation period of 3 years, stipulated under Article 54 of the Limitation Act.

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In view of the clear provisions of Article 54 of the Limitation Act, 1963, and the fact that the suit was filed nearly 7 years after the expiration of the 11-month period stipulated in the agreement, the suit is barred by limitation. Therefore, the impugned order passed by the Trial Court is not legally sustainable.

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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:36464 CRP No. 98 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.324/2016 on I.A.No.3 is hereby set aside, and I.A. No.3 is 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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