1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Suit No.3169 of 2003 The Municipal Corporation of Greater Mumbai. .. .. Plaintiffs v/s. Akbarali Ebrahim Jetha. .. .. Defendant Mr.R.S . Shirshikar i/by Mr.S.H . Ujjainwalla for Plaintiffs. Mr.S.S . Jain for Defendant. ------ CORAM : SMT.ROSHAN DALVI, J. Dated : 11 th September, 2008 P.C. : 1. Four issues have been raised in this Suit. The issue relating to the bar of jurisdiction is required to be tried as a preliminary issue under the provisions of Order 14 Rule 2 of the Code of Civil Procedure. That issue can be tried based upon the averments in the Plaint read with the documents of the Plaintiffs themselves. It is the case of the Plaintiffs that the suit land belonged to the Defendant. The Plaintiffs had constructed a building thereupon. The Plaintiffs were running a school. Pursuant to a certain resolution of the Plaintiffs, the Plaintiffs required to surrender the premises. As the Plaintiffs were not going to run the school, the Defendant accepted the surrender at a compensation fixed by the Plaintiffs in their resolution. The Plaintiffs computed 2 the cost of the construction as well as the cost of the land which was to be surrendered. The Defendant was to make payment. It was mutually agreed that Rs.11,03,022.64 was payable by the Defendant for the cost of construction and the cost of the land. This was for an area of 1973.68 sq. ft. which was to be surrendered. This was stated by the Defendant on 23.10.1991 under his letter of that date to the Plaintiffs. 2. The Plaintiffs amended that figure and calculated the correct price to be paid. That was to be Rs.12,05,654 /- as mentioned in the letter of the Plaintiffs dated 29.10.1991, Exhibit- E to the Plaint. The Defendant paid that amount for the surrender of 1973.68 sq. ft. of land calculated at the rate of Rs.425/- per sq. ft. A Receipt dated 28.11.1991 of Rs.12,05,654 /- came to be passed. The contract was hence complied and completed on 28.11.1991. 3. Much later thereafter the Plaintiffs realized that the Defendant has received more area by virtue of this surrender than 1973.68 sq. ft. of built up area of the building for which the amount was paid calculated at the rate of Rs.425/- per sq. ft. It is the Plaintiffs' case that this was brought to light by the Municipal Chief Auditor. The Plaintiffs, therefore, came to realize that they were entitled to Rs.3,46,142 /- more 3 for the area actually surrendered. That was for 2788.13 sq. ft. instead of 1973.68 sq. ft. Pursuant to the realization by the Plaintiffs themselves of the mistake to the extent of the land surrendered, the Plaintiffs, by their letter dated 22.4.1997, Exhibit- K to the Plaint, called upon the Defendant to pay a further amount of Rs.3,46,142 /- based upon the correct calculation at the same rate. 4. The Plaintiffs have, therefore, sought to be reimbursed the amount not paid under a mistake between the parties. The cause of action accrued to the Plaintiffs at least on the date of the realization of the mistake upon which the Plaintiffs made a demand for the additional amount of Rs.3,46,142/- upon the Defendant. The cause of action, therefore, accrued to the Plaintiffs on 22.4.1997. 5. The Defendant did not pay the additional amount. The Plaintiffs were required to sue the Defendant under Article 113 of the Limitation Act within a period of 3 years from the date when the cause of action accrued to the Plaintiffs. The Plaintiffs have not sued within the period of limitation. 6. The Plaintiffs have made a further demand for the same amount of Rs.3 ,46,142/- by their letter dated 19.1.2000, Exhibit- M to the Plaint. The Defendant is shown to have 4 denied the liability of the further payment by his letter dated 28 th January 2000. The Plaintiffs were required to sue on or before 21.4.2000. The Plaintiffs have sued on 18.6.2003. The Suit is, therefore, clearly barred by the Law of Limitation. The contention of the Plaintiffs that the cause of action accrues upon the Defendant denying liability is completely incorrect. Even if the Defendant does not deny the liability, the action in law is maintainable. That would be maintainable from the date the cause of action accrued. That was from 22.4.1997. The Suit, having not been filed within 3 years from that date, is barred by the Law of Limitation. Hence, Issue No.1 is answered in the affirmative. 7. The Court is not called upon to answer Issue Nos.2, 3 and 4 in view of the Suit having been barred. The Suit is accordingly dismissed. [SMT.ROSHAN DALVI, J.]