1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side First Appeal No.219 of 2009 With Civil Application No.872 of 2009 M/s. Constar Builders and Developers Pvt. Ltd. ...Appellants (Org.Plaintiff) Vs. Shri Bala Dharamraj Tiwari ...Respondent (Org.Defendant) Mr.G.S.Godbole with Mr.Nitin Mulye for appellant. Mr.A.L.Gore for respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Reserved on : June 10, 2009. Pronounced on : June 16, 2009. ORDER (PER B.H.MARLAPALLE,J.) 1. Admit. 2. Mr. Gore waives service for the respondent. 3. By consent of the parties the appeal is taken up for final hearing 2 forthwith. R. & P. has been perused and private paper book copies have been circulated. 4. This appeal filed under Section 96 of the Civil Procedure Code arises from the order dated 22/10/2008 passed by the learned Civil Judge, Senior Division at Kalyan thereby dismissing Special Civil Suit No.243 of 2008 on the ground that it was hit by limitation. 5. The suit property i.e. agricultural land located in village Ghesar, Taluka Kalyan, Dist. Thane, as per the following details was originally owned by Shri Dharamraj Ramnath Tiwari: Sr.No. Survey No. Hissa No. Area -------------------------------------------------------------------------- 1. 5 2 52 gunthas 2. 5 3/1 53.4 gunthas 3. 5 3/2 25 gunthas 4. 2 5 87 gunthas ---------------------------------------------------------------------------- 6. As per the appellant – plaintiff the company entered into a memorandum of understanding on 6/7/1995 to sell the said suit 3 property for a legal necessity of the family and the agreed rate was Rs.140/- per sq.yard, the total consideration being Rs.36,74,980/-. An amount of Rs.5,00,000/- was paid on signing of the MOU and it was agreed that an amount of Rs.10,00,000/- would be paid on 5th August 1995 and further amount of Rs.10,00,000/- would be paid on 5th October 1995. The remaining amount was agreed to be paid at the time of execution of the conveyance which would be around 5/12/1995. The plaintiff alleged that even as on 4/8/2005 the defendant did not perform his part of the contract and, therefore, he addressed a letter dated 20/9/2005 calling upon the owner to obtain necessary permissions as well as NOC from the Income Tax Department. However, by Advocate’s notice dated 18/3/1996 the owner terminated the MOU dated 6/7/1995 and forfeited the amount of Rs.5,00,000/- received him. The original owner died on 19/5/2008 and on 29/5/2008 the plaintiff issued notice to the present respondent calling upon him to perform the contract and to sign the conveyance as per the MOU dated 6/7/1995. On 18/6/2008 he received reply from the respondent through his Advocate and on 17/6/2008 the plaintiff had already published a legal notice in Marathi newspaper disclosing the said transaction and informing the general public at large not to enter into any transaction in respect of the suit property. Finally on 25/7/2008 the appellant filed Special Civil Suit No.243 of 2008 for 4 specific performance of the MOU dated 6/7/1995. 7. The Defendant filed Written Statement at Exhibit 15 and denied that the MOU could be called an agreement and it was further contended that as the same was not a registered agreement as required under the Bombay Stamps Act, it could not be enforced. The defendant also took the issue of limitation and submitted that the suit was filed after more than eleven years from the notice of termination dated 18/3/1996. The signing of MOU dated 6/7/1995 as well as receipt of Rs.5,00,000/- was not denied. The defendant filed an application at Exhibit 13 as an application under Section 9A of CPC praying for dismissal of the suit as time barred on the ground that cause of action arose in March 1996 and suit was filed in July 2008 and consequently the trial Court had no subject jurisdiction to entertain the suit. The plaintiff filed its reply to the said application at Exhibit 18 and prayed for dismissal of the application. Thus by the impugned order the trial Court has dismissed the suit on the preliminary point of limitation by invoking the powers under Order VII Rule 11(d) of CPC by relying upon the judgment of the Supreme Court in the case of M/s. Rickmers Verwaltung Gimb Vs. Indian Oil Corporaion Ltd. [AIR 1999 SC 504] as well as judgment of this Court in the case of Satpuda Tapi Parisar Sahakari Sakhar Karkhana Ltd. Vs. Jagruti Industries and anr. 5 [2008 (4) Mh.L.J. 471]. 8. Mr.Godbole, the learned counsel for the appellant submitted that the issue of limitation could not have been decided without affording an opportunity of leading evidence to the parties and in the instant case the trial Court proceeded to dismiss the suit without recording any oral evidence on the issue of limitation. He, therefore, submitted that the appeal is required to be allowed and by quashing as setting aside the impugned order, the suit is required to be remanded so as to decide the issue of limitation after granting to the parties an opportunity to lead evidence. Mr. Godbole in support of his contentions has relied upon the judgment in the case of Gunwantibhai Mulchand Shah & ors. Vs. Anton Elis Farel & ors. [(2006) 3 SCC 634]. 9. We have noticed that the trial Court proceeded to decide the issue of limitation on the basis of the admitted sequence of events. The defendant has filed affidavit in reply and has also placed on record a certified true copy of the Roznama in Special Civil Suit No.243 of 2008 and based on the same it has been pointed out that the application at Exhibit 13 was filed on 18/8/2008. The reply at Exhibit 18 was filed on 19/8/2008 and preliminary issue was framed at Exhibit 20 on 9/9/2008. At no point of time the plaintiff or his Advocate filed 6 any application before the trial Court seeking leave to lead evidence and on the contrary the application came to be adjourned from time to time on deciding the preliminary issue of limitation. It is thus clear from the Roznama that the plaintiff did not apply for leading oral evidence so as to decide the preliminary issue of limitation as framed by the trial Court. 10. As a matter of abundant precaution we called upon Mr. Godbole to place on record the proposed affidavit by examination in chief to be placed before the trial Court in case the suit would be remanded for fresh decision on the issue of limitation and he has filed such affidavits of Shri Harilal Gupta, Harbans Singh, Managing Director of the plaintiff – company and Shri Harishankar Tiwari. We have noted that in all these affidavits proposed to be by way of examination in chief before the trial Court, no new fact or any additional material information relevant to the issue of limitation has been sought to be brought on record during the period from either 10/4/1996 or 14/5/1998 till the plaintiff published public notice on 17/6/2008 or issued the legal notice dated 29/5/2008. We, therefore, proceed to decide the issue of limitation at this stage assuming what is stated in their affidavits to be correct. 7 11. The following sequence of events is not disputed between the parties: 1. MOU was signed on 6/7/1995. 2. Notice of termination of MOU was issued on 18/3/1996. 3. Appellant gave reply to the termiation of notice and raised disputes vide his letter dated 28/3/1996. 4. Defendant’s Advocate gave reply dated 10/4/1996 and gave further time of seven days to make balance payment 5. Respondent’s Advocate issued the letter forfeiting Rs. 5,00,000/- on 6/1/1997. And lastly 6. The respondent published a public notice in daily newspaper (Tarun Bharat) on 14/5/1998 terminating the contract. 12. From 14/5/1998 till the demise of the original owner on 19/5/2008 i.e. for almost ten years the plaintiff did not take any steps and thereafter the company issued notice to the present respondent on 29/5/2008, a public notice on 17/6/2008 and filed the suit on 25/7/2008. Even prima facie there was no evidence that after the public notice terminating the contract was published in the newspaper 8 on 14/5/1998, the plaintiff company had taken any steps to extend the period of limitation and, therefore, cause of action certainly arose lastly on 14/5/1998, if not on 18/3/1996. Mr.Godbole admitted that the letter of termination dated 18/3/1996 was received by the plaintiff and further submitted that in response to the reply dated 28/3/1996 thereto, the owner had through his Advocate impliedly withdrawn the termination notice and called upon the plaintiff to pay the balance amount of Rs.31,74,980/- and take steps to execute the conveyance. As per Mr.Godbole, thus reply dated 28/3/1996 substituted the termination notice dated 18/3/1996 and, therefore, the cause of action did not arise on 18/3/1996. Even if these submissions are accepted, in the reply dated 10/4/1996 the defendant clearly stated that if the balance amount was not paid within seven days, he would publish a public notice for termination of the contract and he would not be responsible for any further consequences. Such a public notice was in fact published in the newspapers at the instance of the land owner on 14/5/1998 as noted hereinabove and, therefore, even if the cause of action arose from 14/5/1998, the suit filed in July 2008 was certainly hit by limitation as it was not filed within a period of three years as required under Article 54 of the Limitation Act. We, therefore, do not find any infirmity in the impugned order. 9 13. Hence the appeal is hereby dismissed with costs. 14. R. & P. be returned to the trial Court. 15. Civil Application does not survive and the same stands disposed. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)