Case Note & Summary
The petitioners, who were defendants in a suit for specific performance, challenged an order of the City Civil Court, Mumbai, which rejected their application (Notice of Motion No.3049 of 2017) seeking rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908. The suit was filed by the respondent (plaintiff) for specific performance of an agreement for sale dated 20.12.2006, which stipulated that the sale deed would be executed by 31.03.2007. The plaintiff paid an earnest amount of Rs.1,00,000 and alleged that the defendants failed to execute the sale deed despite repeated requests. The suit was filed on 27.04.2017, nearly ten years after the stipulated date. The defendants contended that the suit was barred by limitation under Article 54 of the Limitation Act, 1963, which requires a suit for specific performance to be filed within three years from the date fixed for performance. The trial court rejected the application, holding that the question of limitation was a mixed question of fact and law. The High Court allowed the writ petition, holding that from the plaint itself, it was clear that the time for performance was fixed as 31.03.2007, and the suit filed in 2017 was ex facie barred by limitation. The court also noted that there was no averment of readiness and willingness on the part of the plaintiff after 2007, which is essential under Section 16(c) of the Specific Relief Act, 1963. The court set aside the trial court's order and allowed the application for rejection of the plaint.
Headnote
A) Limitation Act, 1963 - Article 54 - Suit for Specific Performance - Time for performance fixed - Suit must be filed within three years from the date fixed for performance - Agreement dated 20.12.2006 fixed 31.03.2007 as the date for performance - Suit filed on 27.04.2017 is clearly barred by limitation - Held that the suit is ex facie barred by limitation and the plaint is liable to be rejected (Paras 6-10).
B) Code of Civil Procedure, 1908 - Order VII Rule 11(d) - Rejection of Plaint - Where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected - The plaint itself shows that the agreement was to be performed by 31.03.2007 and the suit was filed in 2017 - No prayer for extension of time or acknowledgment of liability - Held that the plaint is liable to be rejected as barred by limitation (Paras 11-13).
C) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must aver and prove continuous readiness and willingness to perform the contract - In the plaint, there is no averment of readiness and willingness after 2007 - Held that the plaint does not disclose a cause of action and is liable to be rejected (Paras 14-15).
Issue of Consideration
Whether the suit for specific performance of an agreement for sale is barred by limitation and whether the plaint is liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, set aside the order dated 6th October 2017 passed by the City Civil Court, Mumbai, and allowed the Notice of Motion No.3049 of 2017, thereby rejecting the plaint in S.C. Suit No.1295 of 2017 as barred by limitation.
Law Points
- Limitation Act
- 1963
- Article 54
- Specific Relief Act
- Section 16(c)
- Order VII Rule 11(d) CPC
- readiness and willingness
- suit for specific performance
- bar of limitation
Case Details
2018 LawText (BOM) (01) 109
Writ Petition No. 12952 of 2017
Dr. Shalini Phansalkar-Joshi, J.
Mr. A.V. Anturkar, Senior Advocate a/w. Mr. Amardev J. Uniyal for the Petitioners; Mr. Nitin Dalvi i/b. Ms. Ameeta Kuttikrishnan for Respondent No.1
Quaid Johar Maqbul Hussain Miyajiwala, Issar Moinuddin Khan, Baddrudin Kapasi, Fakruddin Kanchwala
Bismilla Ali Asgar Bhanpurwala, Minhaj Siraj Ahmed, Nikhil Prakash Surve, Abid Bhanpurwala, Nafisa Abid Bhanpurwala, Fatma Ali Asgar Bhanpurwala, Khushay Ali Asgar Bhanpurwala, Burhan Ali Asgar Bhanpurwala, Prashant Mittal
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Nature of Litigation
Writ Petition under Article 227 of the Constitution of India challenging an order of the City Civil Court rejecting an application for rejection of plaint in a suit for specific performance.
Remedy Sought
The petitioners (defendants in the suit) sought rejection of the plaint under Order VII Rule 11(d) CPC on the ground that the suit was barred by limitation.
Filing Reason
The suit for specific performance was filed on 27.04.2017 based on an agreement dated 20.12.2006 which fixed 31.03.2007 as the date for performance. The petitioners contended that the suit was filed beyond the three-year limitation period under Article 54 of the Limitation Act, 1963.
Previous Decisions
The City Civil Court, Mumbai, by order dated 6th October 2017, rejected the Notice of Motion No.3049 of 2017 filed by the petitioners, holding that the question of limitation was a mixed question of fact and law.
Issues
Whether the suit for specific performance is barred by limitation under Article 54 of the Limitation Act, 1963?
Whether the plaint is liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908?
Submissions/Arguments
The petitioners argued that from the plaint itself, it is clear that the time for performance was fixed as 31.03.2007, and the suit filed on 27.04.2017 is beyond the three-year limitation period, hence the plaint is liable to be rejected.
The respondent argued that the question of limitation is a mixed question of fact and law and cannot be decided at the stage of rejection of plaint.
Ratio Decidendi
Where the plaint itself shows that the suit is barred by limitation, the court must reject the plaint under Order VII Rule 11(d) CPC. The question of limitation is not a mixed question of fact and law when the relevant dates are clear from the plaint. In a suit for specific performance, if the time for performance is fixed, the suit must be filed within three years from that date under Article 54 of the Limitation Act, 1963.
Judgment Excerpts
From the plaint itself, it is clear that the time for performance of the agreement was fixed as 31.03.2007.
The suit is filed on 27.04.2017, which is clearly beyond the period of three years from the date fixed for performance.
Hence, the suit is ex facie barred by limitation and the plaint is liable to be rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.
Procedural History
The respondent filed S.C. Suit No.1295 of 2017 in the City Civil Court, Mumbai, for specific performance of an agreement dated 20.12.2006. The petitioners (defendants) filed Notice of Motion No.3049 of 2017 seeking rejection of the plaint under Order VII Rule 11(d) CPC. The trial court rejected the notice of motion on 6th October 2017. The petitioners then filed the present writ petition under Article 227 of the Constitution of India challenging that order.
Acts & Sections
- Constitution of India: Article 227
- Code of Civil Procedure, 1908: Order VII Rule 11(d)
- Limitation Act, 1963: Article 54
- Specific Relief Act, 1963: Section 16(c)
