1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO. 502 OF 2006 IN SUIT NO. 473 OF 2006 Shashibala N. Malik & Anr. ...Plaintiffs Vs. M/s. Sing Auto Services ...Defendants Mr.Sudhir Sakhardande i/b. Mrs. S.S.Wagh for Plaintiffs Mr.G.S. Bhat for Defendants CORAM: SMT.ROSHAN DALVI, J. DATED: 8TH APRIL , 2009 P.C. 1. This Notice of Motion is for the relief of protection of the Plaintiff's possession in the Suit plot of land and for injunction against creation of 3rd party rights therein. 2. The Defendants have claimed that the Suit is barred by the Law of limitation. Whether or not the Suit has been filed within limitation has to be decided. Written statement has been filed on 18th September 2008 in which that issue has been raised. On 6th February, 2009 Justice A.A. Sayed interalia framed the preliminary issue relating to the bar of 2 limitation. 3. The Suit is for specific performance of the agreement dated 16th October 1987. The agreement was sought to be terminated by the Defendants under their notice dated 13th June 2002 sent by registered post to the Plaintiffs. The Defendants have produced a copy of the notice as well as the registered post acknowledgment. The Plaintiffs have contended that they have not received the notice. 4. The receipt of the notice dispatched by registered post to the address of the Plaintiffs, if correct, would be deemed to have been served upon the addressee under the provisions of Section 27 of the General Clauses Act. The registered acknowledgment shows Plaintiff No.1 residing at:- Ganga Estate Behind Resham Motor Show Room, Sion Trombay Roada, Chembur, Mumbai. The Plaintiff No.2 is shown to be residing at:- 201-202 Olympic Chamber Deshbandhu Chitranjandas Marg Devidayal Road, Mulund (West) Mumbai- 80. 5. The Plaintiffs claim that that is not the correct address. 3 6. The Defendant's Advocate has drawn my attention to the Deed of Partition executed by and between Plaintiffs on 19th April, 2002. It is a part of the plaint being Exhibit-B thereto. The Deed of Partition in the Plaintiffs' own plaint shows the said address. In fact the address mentioned in the registered acknowledgment is more detailed showing certain showroom in case of Plaintiff No.1 and the road in case of Plaintiff No.2. 7. The Plaintiff No.1 has claimed that there is no such showroom. However she admits that she lives at Ganga Estate which is at Sion, Mumbai. The Plaintiff No.2 has not disputed the additional name of the road where her building Olympic Chamber is situated. 8. Under Section 27 of the General Clauses Act both the Plaintiffs who are sought to have been served the notice at the correct address are deemed to have been served upon the notices being sent post and kept in transit. 9. The Plaintiff No.1 states that she is Shashibala, but she is referred in the acknowledgment as Shashikala. Her full name is Shashibala N. Malik, which is shown as Shashikala N. Malik. The postal authority would deliver the registered 4 parcel even if the letter “b” is replaced by letter “k”, if the name is otherwise the same as at the address mentioned in the acknowledgment. Hence receipt of the registered acknowledgment by the Plaintiff is seen and the denial must be rejected. 10. The suit for specific performance is required to be filed within 3 years from the date of the receipt of the termination of the notice. The notice is seen to have been sent on 17th June, 2002 . The suit is filed in 2006. Hence, it is barred by the law of limitation. The preliminary issue is accordingly decided under the provisions of Order XIV Rule 2 of the C.P.C. The preliminary issue framed by my brother Judge A.A. Sayed on 6th February 2002 is answered in the affirmative. Consequently the suit is dismissed. 11. Notice of Motion stands disposed of accordingly. (SMT. ROSHAN DALVI, J.)