1 cra542-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 542 OF 2011 M/s Keshav Property Developers .. Applicant Versus M/s Sky Lounge Estate Pvt. Ltd. and others .. Respondents Mr. Avinash B. Avhad, for the applicant CORAM: R. M. BORDE, J. DATED : 18th August, 2011 P. C. 1. The petitioner is assailing the order dated 7th April, 2011, passed below Exh.20 in Regular Civil Suit No.1365 of 2010, by the 10th Joint Civil Judge, Junior Division, Pune. 2. The respondent- original plaintiff presented a suit claiming decree of mandatory injunction under the Maharashtra Ownership of Flats Act, 1963 and for specific performance of contract, etc. Based on the agreement entered into between the parties. The defendants were to give possession of 6 flats to the plaintiff in accordance with the terms set out in the agreement. The agreement was 2 cra542-11.sxw entered into on 3rd May, 2006 and a communication was issued by the defendant on 27th April, 2009, informing the plaintiff that the completion certificates for four flats have been received and they were asked to take possession of the said four flats. The defendant, however, did not hand over the possession of additional two flats and refused to give possession of four flats also, unless the plaintiff expresses his willingness for cancellation of the agreement to the extent of delivery of possession of two flats. The new term set out by the defendant was not agreeable to the plaintiff and as such, he proceeded to file a suit claiming the reliefs as stated above. 3. The defendant caused appearance in the suit and tendered an application requesting the court to reject the suit under order 7 Rule 11 of the Code of Civil procedure, as the suit claim is barred by limitation. The application tendered by the defendant came to be turned down by the trial Court and hence instant Civil Revision Application. 4. I have perused the order passed by the trial Court and heard the arguments advanced by the counsel for the 3 cra542-11.sxw respective parties. 5. According to the original defendant, the date of agreement is 3rd May, 2006 and the suit is presented on 30th October, 2010, which is barred by limitation. As per the terms stated in the agreement, possession of the flats was required to be given within 12 months from the date of agreement and or such accrual of cause of action to the plaintiff was at the end of 12 months from 30th May, 2007. The suit presented in the month of October, 2010 is, according to the defendant, barred by limitation. 6. I have perused the plaint, wherein the plaintiff has stated that the defendant has transmitted a letter informing the plaintiff to take possession of the flats in the month of April, 2009 and on the given date, when the plaintiff exhibited his willingness to take possession of the four flats, the defendant refused to hand over the possession and insisted upon the plaintiff to agree to relinquish his entitlement in relation to other two flats. The plaintiff did not agree and proceeded to file the suit. 7. According to the plaintiff, the accrual cause of 4 cra542-11.sxw action is in denial by the defendant to handover possession of four flats and his insistence for relinquishment of plaintiff's entitlement to secure two other flats, which has occurred in the month of April, 2009. The suit, thus presented in October, 2010, cannot be construed to be barred by limitation. 8. Considered the contentions raised by the plaintiff in the plaint, and the application tendered by the defendant invoking the provisions Order 7 Rule 11 of the Civil procedure Code. It appears that there are triable issues arising in the matter and the issue of limitation is a mixed question of law and facts. At this stage of the proceeding, it cannot be concluded that the suit presented by the plaintiff is barred by limitation and issue in that regard need to be framed by trial Court and same to be answered. 9. The Learned Judge was justified in turning down the objection tendered by the defendant-petitioner herein, 10. The Revision Application is devoid of substance and hence stands rejected. ( R. M. BORDE, J.)