Allowed

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

Karnataka HC3 Sept 2024CRP/99/2023

Case brief

AI extract

What is this about?

Revision petition challenging rejection of an Order VII Rule 11 application to reject a plaint for specific performance. Holding that the suit was filed far beyond the three-year period from the date fixed in the agreement, the High Court allowed the petition, set aside the trial court's order and rejected the plaint.

What did the court decide?

Impugned order set aside; I.A.No.5 allowed; plaint in O.S.No.323/2016 rejected.

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

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NC: 2024:KHC:37848 CRP No. 99 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CIVIL REVISION PETITION NO. 99 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. ABHILASH H.S., ADVOCATE)

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AND:

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

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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SRI. NARASAHANUMAIAH, S/O. LATE CHIKKALINGAIAH, AGED ABOUT 72 YEARS, R/AT KETHIGANAHALLI VILLAGE, BIDADI HOBLI, RAMANAGARA TALUK AND DISTRICT – 562 019.

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…RESPONDENTS (BY SRI. GOPAL GOWDA L., ADVOCATE FOR R1)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 03.12.2022 PASSED ON IA NO.5 IN O.S.NO.323/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, RAMANAGARA, REJECTING THE IA NO.5 FILED UNDER ORDER VII RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.

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NC: 2024:KHC:37848 CRP No. 99 of 2023

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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, wherein the application filed under Order VII Rule 11 (a) & (d) of the CPC by the petitioner (Defendant No.2) was rejected.

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The plaintiff filed a suit in O.S. No. 323/2016 for specific performance of the agreement of sale dated 05.07.2008, and for a declaration that the registered sale deed in the name of Defendant No.2 is not binding on the plaintiff.

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The plaintiff’s case is that the agreement of sale was executed in his favor by Defendant No.1, who agreed to convey the subject property for a valuable sale consideration of Rs.6,12,500/-, out of which Rs.1,50,000/- was paid as an advance by way of cash on the date of the agreement. As per the terms and conditions of the agreement, 11 months were fixed for completing the sale transaction, during which time Defendant No.1 was required to conduct a survey, furnish relevant documents pertaining to the suit property, and obtain permission from the competent authority under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act (for short, 'the PTCL Act').

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Despite several requests, Defendant No.1 did not perform his part of the contract. The plaintiff subsequently

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NC: 2024:KHC:37848 CRP No. 99 of 2023

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approached the Office of the Sub-Registrar, Ramanagara, and upon verification, was shocked to learn that an absolute sale deed had been executed in favor of Defendant No.2 by Defendant No.1 on 21.02.2013. The plaintiff stated that the cause of action to file the suit arose on 05.07.2008.

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Defendant No.2 entered an appearance and filed an application under Order VII Rule 11 (a) & (d) read with Section 151 of the CPC, seeking rejection of the plaint on the grounds that there was no cause of action to file the suit and that the suit, having been filed more than three years after the date of the agreement of sale, was barred by limitation. The Trial Court rejected the application, prompting Defendant No.2 to file the present petition.

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The learned counsel for the petitioner (Defendant No.2) argued that since the agreement of sale was entered on 05.07.2008, and the sale was to be executed within 11 months, the suit filed after three years from the expiry of those 11 months was 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 was placed on the following decisions:

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i) Usha Devi & Ors. vs. Ram Kumar Singh & Ors., Civil Appeal No. 8446 of 2024, dated 05.08.2024 (2024 INSC 599).

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NC: 2024:KHC:37848 CRP No. 99 of 2023

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

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iii) Ramisetty Venkatanna and Ors. vs. Nasyam Jamal Saheb and Ors., 2023 (246) AIC 98.

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iv) Raghavendra Sharan Singh vs. Ram Prasanna Singh (Dead) by LR's, AIR 2019 SC 1430.

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After a careful examination of the arguments presented by the learned counsel for the parties, and upon perusal of the plaint and the agreement of sale, the point for consideration is whether the suit is barred by limitation under Order VII Rule 11 (a) & (d) of the CPC, and therefore, whether the plaint is liable to be rejected.

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A perusal of the plaint indicates that the agreement of sale was executed on 05.07.2008, wherein the defendants agreed to convey the subject property to the plaintiff for a sale consideration of Rs.6,12,500/-, out of which a part payment was made by way of cash.

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As per the terms of the agreement, Defendant No.1 was required to execute the sale deed within 11 months after obtaining the necessary permissions from the competent authority. Although the agreement of sale was executed on 05.07.2008 and the sale transaction was to be completed within 11 months, the suit was instituted on 15.11.2016. The plaint states that the cause of action arose on 05.07.2008, the date the agreement of sale was executed.

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NC: 2024:KHC:37848 CRP No. 99 of 2023

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The Supreme Court, in Usha Devi & Ors. (supra), in a similar situation, held that when a specific date is fixed for performance, the limitation period for filing a suit for specific performance is three years from that date.

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The Supreme Court, in Fatehji and Company and Ors. (supra), held that Article 54 of the Limitation Act does not distinguish between cases where possession of the property has been delivered in part performance of the agreement or otherwise. Furthermore, if the defendants are required to obtain permission for performance, the mere failure to obtain such permission does not extend the cause of action for filing the suit.

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A review of the plaint and the agreement of sale dated 05.07.2008 shows that the sale transaction was to be completed within 11 months from the date of the agreement. No further extension of time was stipulated for completing the sale after obtaining the necessary permission. Therefore, the averments in the plaint clearly indicate that the suit, filed after the expiry of the 11-month period, is barred by limitation as specified under Article 54 of the Limitation Act.

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Article 54 of the Limitation Act, 1963, states that a suit for specific performance must be filed within three years from "the date fixed for performance" or, if no such date is fixed, "when the plaintiff has notice that performance is refused."

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NC: 2024:KHC:37848 CRP No. 99 of 2023

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In the present case, the date fixed for performance was 11 months from the date of the agreement of sale, i.e., 05.07.2008. The suit, having been filed in 2016, was clearly beyond the three-year limitation period and is thus barred by limitation under Article 54 of the Limitation Act. Upon examination of the plaint , it may be reasonable inferred that purported cause of action is merely illusory and has been concocted solely to circumvent the provisions of Order 7 rule 11 CPC. Accordingly, I pass the following:

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ORDER

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i) The Civil Revision Petition is allowed.

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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.323/2016 on I.A.No.5 is hereby set aside, and I.A. No.5 is allowed, and consequently, the plaint stands rejected.

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Sd/(HEMANT CHANDANGOUDAR) JUDGE

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RKA

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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