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As the question of limitation is a mixed question of law and facts, the applicants cannot claim rejection of the plaint at the threshold by application of Order VII Rule 11(d)of the CPC: Bombay High Court.

The Bombay High Court on Wednesday, the 3rd of August 2022 passed a judgement against the applicants and rejected the applications, holding that the suit filed by the respondents deserves to go to trial. This Judgement was passed in the case of Shri Sharad Sitaramji Shende & Ors. vs. Shri Nilesh Subhashandji Katariya & Ors.( Civil Revision Application No. 16 Of 2022) and this case was presided over by the Honourable Mr. Justice Manish Pitale.

FACTS OF THE CASE:

The facts of the case leading to the filing of the present Revision Applications are that a document titled as “Sauda Chitthi”, was executed between one of the respondents and Jodhrajji Kothari on the one hand and the applicants on the other. In these documents, it was stated that the applicant had agreed to sell a specific area of land at Rs.40,00,000 per acre and in respect of which an amount of Rs.2,01,000, was given to the applicants and with a belief an agreement in that regard would be executed on 17/02/2011, on which day, further amount to the extent of 25% of the consideration would be given to the applicants.

A document was executed between the said parties on 17/02/2011, titled as document for “extension of time” to execute agreement. In this document, reference was made to the earlier “Sauda Chitthi”, dated 03/02/2011 and it was stated further that upon the objections being dealt with and settled, the agreement would then be executed.

In May of 2018, the respondent filed a special Civil Suit, before the Court for specific performance of the said document, “Sauda Chitthi”, read with document “for extension of time”. It was claimed that in terms of the said documents, a concluded contract had come into existence between the parties and as per the document executed on 17/02/2011, “for extension of time”, it was clear that time was not the essence. As objections were raised in respect to the said transaction, the applicants had filed a suit against the objectors, resulting in a decree against them, which was then taken in appeal and the same was pending. It was claimed that when the respondent got knowledge of the said contract by the applicants, that he was constrained to file the aforesaid suit. Apart from claiming specific performance in the aforesaid manner, the respondent claimed alternative relief of grant of decree of Rs.6,02,01,000 in his favour.

In the said suit, the applicants filed the said applications under Order VII Rule 11 of the CPC, for rejection of the plaint. The applicants claimed that there was no concluded contract and the applicants additionally sought rejection of the plaint because they were not even signatories to the said documents, of which specific performance was claimed. In other words, the applicants claimed that there was no cause of action disclosed in the plaint, thereby justifying its rejection. It was further claimed by the applicants before the Court below that the suit was hopelessly barred by limitation and on that ground also the plaint deserved to be rejected.

The Court rejected both the applications, holding that the documents in question read with the contents of the plaint sufficiently disclosed cause of action and that in the facts and circumstances of the present case limitation being a mixed question of facts of law, the plaint could not be rejected on either ground raised by the applicants.

JUDGEMENT:

The Court is of the opinion that the material on record, including the pleadings in the plaint and the documents in question cannot lead to a conclusion that the plaint deserves to be rejected at the threshold and the court believes that a trial is needed to further establish the facts and circumstances of the present case and is needed to examine as to the real nature of the documents of which specific performance is sought in the present case.

The courts says as far as the question of limitation is concerned, this Court is convinced that the pleadings in the plaint including circumstances pleaded by the respondent , particularly filing of RCS by the revision applicants and pendency of RCA, and also other facts pleaded in the plaint demonstrate that the plaint cannot be rejected on the ground that it is barred by limitation. The question as to whether the suit was filed within limitation would have to be answered after giving an opportunity to the parties to lead evidence, because in the facts of the present case, it is found to be a mixed question of law and facts.

Hence, the court says that the revision applicants cannot claim rejection of the plaint at the threshold by application of Order VII Rule 11(d)of the CPC.

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 JUDGEMENT REVIEWED BY TANAV ZACHARIAH.

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