A.No.3141 of 2011 in C.S.No.392 of 2011 VINOD K.SHARMA.J., The applicants have filed this application under Order 14 Rule 8 of the Original Side Rules r/w Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the plaint is barred by law of limitation, and that this Court does not have territorial jurisdiction to entertain and try the present suit. 2. In support of the application, it is pleaded that under the agreement of sell dated 16.05.2007, the property situated in S.No.2/6, plot No.1 to 24 measuring 43,169 sq.ft at Sri Sari Nagar Aranvoyal Village, Thiruvallur Taluk was agreed to be conveyed to the plaintiff on payment of Rs.1,40,00,000/- (Rupess One Crore Forty Lakhs only). 3. The plaintiffs / non applicants paid a sum of Rs.30,00,000/- (Rupees Thirty Lakhs only) on various dates commencing with 1st of September 2007 and thereafter, paid another sum of Rs.29,00,000/- (Rupees Twenty Nine Lakhs only) totalling Rs.59,00,000/- (Rupees Fifty Nine Lakhs onlyl). The balance payment was agreed to be paid within 40 days from the date of agreement. The plaintiffs / non applicants failed to fulfill their part of the contract by paying the balance sale consideration, and on the apprehension that the contract would be rescinded, the plaintiff filed a suit O.S.No.577 of 2007 in the Court of District Munsif at Thiruvallur for injunction. 4. The suit for injunction was filed on 24.09.2007. According to the plaintiff, the cause of action accrued to plaintiffs / non applicants on 17.05.2007. It is also pleaded that the cause of action to recover the advance amount of sale consideration accrued to the plaintiff on 24.09.2007, therefore, the suit for recovery could be filed only till 23.09.2010. Thus, the suit filed on 18.04.2011 is barred by limitation. 5. The applicants / defendants also submit that the property is situated beyond the original jurisdiction of this Court, therefore, this Court does not have territorial jurisdiction to entertain and try the suit. 6. Reference is also made to the para-9 of the plaint, where, it is mentioned that the cause of action arose at Aranvoyal Village, Thiruvallur Taluk, Thiruvallur District. 7. On the pleadings referred to above, it is the submission of the applicants that the suit, being barred by the law of limitation, and being not maintainable in this Court, deserves to be rejected. 8. The application is opposed by the plaintiffs / non applicants contending that the sale agreement was entered into at Chennai on 16.05.2007, and that the plaintiffs / non applicants paid a sum of Rs.61,00,000/- (Rupees Sixty One Lakhs only) on different dates. It is pleaded case that as the suit is for recovery of the advance amount, therefore, this Court has the jurisdiction to entertain and try the suit. It is also the case of the plaintiffs / non applicants that application seeking leave to file suit in this Court stands ordered. 9. The stand of the plaintiff is that earlier suit for injunction was filed in the Court District Munsif, in view of the fact that the property was situated within the jurisdiction of Thiruvallur, therefore, it could not have been filed before this Court. The allegation of suppression of material facts is also denied. 10. It is the submission of the respondents / non applicants that the suit is not barred by limitation. 11. Learned counsel for the applicants, in support of this application, vehemently contended that under Article 47 of the Limitation Act, the period for recovery of money paid on an existing contract, which afterwards fails, is three years and the limitation begins -to run from the date of failure of the consideration. 12. The contention of the learned counsel for the applicants is that admittedly, the agreement was entered into between the parties on 16.05.2007 and subsequently, on 24.09.2007, the plaintiffs / non applicants filed a suit against the applicants / defendants in the Court of District Munsif at Thiruvallur, seeking injunction against alienating of suit property to some third party. It was during the pendency of the suit on 28.09.2007, that the applicants sent a notice to the respondents, conveying their refusal to proceed with the agreement and calling upon the plaintiffs to pay back the advance money within 15 days. It was pleaded by the plaintiff / respondent, in C.S.577 of 2007, that the agreement failed on 24.09.2007, therefore, as per the pleadings in the suit read with the documents attached, the suit is time barred. 13. It was also contended by the applicants / defendants that the the plaintiffs / non applicants failed to fulfill their part of the contract, therefore, the suit could instituted only on or before 24.09.2007. 14. In support of the contention, learned counsel for the applicants / defendants placed reliance of the judgment of the Hon'ble Supreme Court in the case of Hardesh Ores (P) Ltd vs. Hede and Company reported in (2007) 5 SCC 614, wherein, the Hon'ble Supreme Court has been placed to lay down that rejection on ground of limitation, is contemplated under Order 7 Rule 11 (d), as the word 'Law' will include the law of limitation. 15. Learned counsel for the applicants / defendants also referred to Article 55 of the Limitation Act, to contend that the cause of action, for compensation for the breach of contract, express or implied, which is not specifically provided for, can also be filed within three years from the date on which the contract is broken. 16. Learned counsel for the applicants / defendants also placed reliance on the judgment of the Hon'ble Division Bench of this Court in the case of N.Ravindran vs. V.Ramachandran in 2011 (3) CTC 153, wherein, this Court has been pleased to lay down, that the Court is to look into the averments contained in the plaint for determining whether plaint discloses any cause of action, and whether it is barred by any law. The Court is not required to consider defence set up by the defendant in written statement, not the Court can take into account the materials beyond the plaint, to hold that the case of plaintiff is frivolous or barred by any law. 17. While dealing with this proposition, the Hon'ble Division Bench of this Court in paras 10 and 23 of the judgment was pleased to lay down as under: "10. The well settled position is that while considering the application under Order VII Rule 11 C.P.C., Court is not required to take into consideration the defence set up by the defendant in his written statement or other documents. The question whether plaint discloses any cause of action and whether it is barred by any law is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. While considering the application, the strength or weakness of the case of the plaintiff is not to be examined. It is fairly well settled that the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether any vexatious or frivolous litigation has been initiated by the plaintiff. The Court cannot take into account materials beyond the plaint to declare that the case of the plaintiff is frivolous or is barred by any law.... 23. As held by the Supreme Court in C. Natrajan v. Ashim Bai, (2007) 14 SCC 183, the limitation would not commence unless there has been a clear and unequivocal threat to the right claimed by the plaintiff. In the case on hand, the plaint averments would clearly show that there has been a clear and unequivocal threat to the right claimed by the plaintiff. As pointed out earlier, in paragraph No.10 of the plaint, the plaintiff has categorically averred that in November 2002, one Mohan Kumar claiming to be a builder called upon the plaintiff and threatened him to vacate the suit premises as he (Mohan Kumar) proposed to purchase the property to put up several flats. It is also averred in the plaint that the plaintiff lodged a police complaint on 2.12.2002. In paragraph No.12 of the plaint, the plaintiff has averred that following several telephone calls threatening him he filed suit O.S.No.6514 of 2002. Before filing the suit, the plaintiff issued legal notice on 18.11.2002 calling upon the defendant to receive the balance consideration of Rs.13,00,000/- and to execute the sale deed. Stating that the defendant has not come forward to execute the sale deed, in December 2002, plaintiff has filed the suit O.S.No.6514 of 2002 for bare permanent injunction. In the plaint averments in C.S.No.264 of 2007, there is a repeated reference to the threats by the defendant in November/December 2002 and also his refusal to fulfil his obligation. Suit for specific performance should have been filed atleast by 2.12.2005. Even though there was such clear and unequivocal threat to the alleged agreement of sale/undertaking, the plaintiff has not chosen to file the suit for specific performance; but filed the suit for specific performance -C.S.No.264 of 2007 only in the month of November 2006. The suit is clearly barred by limitation. Even though the question of limitation is a mixed question of facts and law, the facts are writ large on the face of it to hold that the suit for specific performance C.S.No.264 of 2007 is barred by limitation. On the factual matrix of this case the ratio of the decision of the Supreme Court in (2007) 14 SCC 183 is not applicable to the facts of the case on hand." 18. It is next contended by the learned counsel for the applicants / defendants that the suit is also barred by Order 2 Rule 2 of the Code of Civil Procedure. The contention of the learned counsel for the applicants / defendants is that the cause of action to the plaintiffs / non applicants arose on or before 24.09.2007, when the suit for injunction was filed. The plaintiffs / non applicants could have also filed a suit for recovery, but they chose to file a suit for injunction, therefore, relief of recovery of money was barred under Order 2 Rule 2 of the Code of Civil Procedure. 19. In support of this contention, learned counsel for the applicants / defendants referred paras 25, 26 and 27 of the judgment of this Court in the case of N.Ravindran vs. V.Ramachandran (supra), which reads as under: "25. The object of Order II Rules 1 and 2 C.P.C. is to prevent multiplicity of suits. The Rule in Order II Rule 2 is founded on the principle that a person shall not be vexed twice for one and the same cause of action. Order II Rule 2 C.P.C. is directed in securing a exhaustion of the relief in respect of a cause of action. In order to make Order II Rule 2 applicable, the defendant must satisfy the f conditions:- (i) The previous and second suit must arise out of the same cause of action; (ii) Both the suits must be between the same parties; and (iii) The earlier suit must have been decided on merits. In order to attract the bar of Order II Rule 2 C.P.C, the earlier suit shall be founded on the same cause of action on which the subsequent suit is based, and if in the earlier suit, the plaintiff has omitted to sue in respect of or intentionally relinquished any portion of his claim, he will not subsequently be entitled to sue in respect of the portion of his claim so omitted or relinquished. 26. The learned single Judge considered the present suit C.S.No.264 of 2007 and also the earlier suit O.S.No.6514 of 2002 and held that in the earlier suit, the plaintiff has intentionally omitted to sue for specific performance and held that the suit is barred under Order II Rule 2 C.P.C. 27. The plaint in O.S.No.6514 of 2002 was produced before us. By perusal of the averments in both the suits - C.S.No.264 of 2007 and O.S.No.6514 of 2002, we find that the averments in both the plaints are verbatim same excepting few sentences in some paragraphs. As pointed out earlier, there was unequivocal threat to the plaintiff's right of agreement/understanding even in November 2002 when the plaintiff has also lodged a police complaint. While so, while filing the suit O.S.No.6514 of 2002, the plaintiff has omitted to sue in respect of the suit for specific performance. Order II Rule 2 is directed in securing the exhaustion of relief in respect of cause of action. When the plaintiff has intentionally omitted to claim the relief of specific performance, he will not be subsequently entitled to sue in respect of the portion of his claim right of specific performance, which he so omitted." 20. Learned counsel for the applicants / defendants finally contended that this Court does not have territorial jurisdiction, as the cause of action to maintain the present suit arose at Thiruvallur where the suit property is situated. It is the contention of the learned counsel for the applicants that in O.S.No.577 of 2007, the plaintiffs / non applicants clearly mentioned that the cause of action had arisen at Aranvoyal Village, Thiruvallur Taluk, Thiruvallur District and no part of cause of action arose within the territorial jurisdiction of this Court, therefore, the plaint deserves to be rejected for want of territorial jurisdiction. 21. Learned counsel for the plaintiffs / non applicants on the other hand contended that the suit has been filed by the plaintiffs / non applicants for recovery of Rs.99,43,000/- (Rupees Ninety Nine Lakhs Forty Three Thousand only) with interest @ 18%, as refund of money, paid to the defendants / applicants. The contention of the learned counsel for the plaintiffs / non applicants was that in pursuance of the agreement dated 16.05.2007, the plaintiffs / non applicants paid a sum of Rs.61,00,000/- (Rupees Sixty One Lakhs only), on various dates out of the total sale consideration of Rs.1,40,00,000/- (Rupees One Crore Forty Lakhs only). 22. The applicants / defendants were trying to alienate the property, therefore, the suit for permanent injunction, restraining the defendants from alienating the property was filed. The cause of action for filing the injunction only arose on 19.09.2007, when attempt was made to negotiate with the third party. 23. In reply to the said suit, the applicants / defendants admitted receipt of Rs.61,00,000/- (Rupees Sixty One Lakhs only), but had taken a stand that the plaintiffs / non applicants failed to perform their part of contract. It is also the contention of the learned counsel for the plaintiffs / non applicants that during the pendency of the previous suit, the applicants / defendants permitted to survey the property, and a Surveyor was also appointed, who found shortage of 3169 sq.ft and the applicants / defenddants were asked to make good the shortage. 24. A legal notice was thereafter sent on 26.03.2011. It was in view of the fraud by the applicants / defendants that the agreement was terminated by the plaintiffs / non applicants with a demand of refund on 30.03.2011, thus, according to the plaintiffs / non applicants, the cause of action arose on 30.03.2011, therefore, the suit is within limitation. 25. Learned counsel for the plaintiffs / non applicants also contended that for invoking Order 2 Rule 2, it is required to be seen whether the cause of action, in both the suits are the same, and whether the cause of action in the subsequent suit was available on the date of filing of the previous suit. 26. It was vehemently contended that the first suit was filed to restrain the applicants / defendants from alienating the property to third party, whereas the second suit is based on the termination of the contract due to the fact on survey of property, was found to be short by 3169 sq.ft, therefore, it is claimed that the suit is not hit by Order 2 Rule 2. 27. It was also the contention of the plaintiffs / non applicants that the suit was filed for recovery after liberty was given by this Court in view of the fact that the agreement for sale was entered into at Chennai. 28. It is well settled law that while deciding the application under Order 7 Rule 11, this Court is to look into the averments in the plaint and documents attached therewith, without reference to the defence of the defendants. In case, the pleadings in the plaint and documents itself show that the plaint is barred under any law, then the plaint can be rejected. 29. The reading of the plaint shows that the parties had entered into an agreement on 16.05.2007 for sale of 43,169 sq.ft comprised in S.No.2/6 at Aranvoyal Village, Thiruvallur Taluk, Thiruvallue District for a total sale consideration of s.1,40,00,000/- (Rupess One Crore Forty Lakhs only). The plaintiffs / non applicants admittedly paid a sum of Rs.61,00,000/- (Rupees Sixty One Lakhs only) and the time for execution of sale / conclusion of contract was agreed to be 40 days from the date of agreement. 30. It is the pleaded case by the plaintiffs / non applicants that the applicants / defendants did not identify the survey number, and on coming to know that steps were being taken to alienate the property to third party, the plaintiffs / non applicants filed O.S.No.577 of 2007. In the said suit, the stand taken by the applicants / defendants was that they were ready to return the advance amount. It is also pleaded that there was shortage of 3169 sq.ft and in case shortage is made good, the plaintiffs / non applicants were ready and willing to perform their part of contract. 31. It is pleaded that when the shortage was found, agreement was cancelled on 30.03.2011 and the applicants / defendants were called upon to refund the amount. 32. In para-8 of the plaint, it is pleaded that the cause of action accrued to the plaintiffs on 16.05.2007, when the agreement was entered into at Chennai on 16.05.2007 and thereafter, on 19.09.2007 when Rs.61,00,000/- (Rupees Sixty One Lakhs only) was paid, thereafter on 24.09.2007 when the plaintiffs / non applicants filed O.S.No.577 of 2007, thereafter on 08.10.2007. 33. It was agreed to survey the property and finally on 30.03.2011, a notice was issued cancelling the agreement. The reading of the plaint shows that though it is pleaded that the cause of action arose to the plaintiffs / non applicants on 30.03.2011, but the plaintiffs / non applicants have placed on record the pleadings in O.S.No.577 of 2007 as well as the written statement filed thereof. 34. In the plaint in O.S.No.577 of 2007, it is pleaded case of the plaintiffs / non applicants that the cause of action had arisen to the plaintiffs / non applicants on 16.05.2007 and thereafter on 19.09.2007, when the applicants / defendants made negotiation with third party for alienating the property. 35. The plaintiffs / non applicants have also placed on record the written statement stating therein that the plaintiffs were not willing to perform their part of contract. 36. The reading of the averments in the plaint itself shows that the parties had entered into agreement to sell on 16.05.2007, which was to be completed within 40 days from the date of agreement. The cause of action to the plaintiffs / non applicants, therefore, arose on expiry of 40 days from 16.05.2007, as it was open to the plaintiffs to have filed a suit for specific performance of agreement in stead of filing a suit for injunction. 37. Once the limitation for filing the suit for specific performance was over, it was not open to the plaintiffs / non applicants to enforce the agreement. The plaintiffs / non applicants have claimed refund in terms of the agreement on expiry of period stipulated. It is nobody's case that date of conclusion of contract was extended beyond 40 days. 38. It cannot be disputed that in order to adjudicate the application under Order 7 Rule 11, it is only the averment made in the plaint and document filed in support of the plaint, which can be looked into and in the defence. 39. In this case, when the averments in the plaint are read with the documents, filed along with the plaint, i.e., earlier plaint filed by the applicants, it leaves no manner of doubt that the suit is prima facie barred by limitation. The plaintiffs / non applicants could not have terminated the agreement to make out the cause of action, as the agreement for sale stipulated the enforcement within 40 days of the date of execution of agreement. 40. The agreement, which seized to be enforceable, could not have been terminated to make out a cause of action, unless there was a bilateral agreement or some act on the part of the respondents, in furthering enforcement of the agreement. 41. In view of the findings recorded herein above, this Court finds force in the contention raised by the learned counsel for the applicants / defendants. 42. The application is accordingly allowed and the plaint, as filed, is ordered to be rejected. No costs. 21.10.2011 Index: Yes Internet: Yes ar Note: Issue order copy today (21.10.2011) VINOD K.SHARMA.J., ar Pre-Delivery order in O.A.No.3141 of 2011 in C.S.No.392 of 2011 21.10.2011