2013(7) ALL MR 18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. DALVI, J.

Sunil Mantri Reality Ltd.Vs.Jadhav Hotels Pvt. Ltd. & Ors.

Civil Revision Application No. 806 of 2011

30th January, 2012

Petitioner Counsel: Mr. Amit B. Borkar
Respondent Counsel: Mr. Niranjan P. Shimpi,Mr. Surel S. Shah

(A) Limitation Act (1963), Sch.I Art.54 - Agreement of sale - Date fixed for specific performance by parties in agreement - Right of specific performance of agreement should be claimed within three years of the date fixed for execution - Suit filed after seven years, after the period of limitation - Relief claimed, barred by the law of limitation - Only right to claim interest available for period of three years prior to filing of the suit. (Para 13)

(B) Civil P.C. (1908), O.7 R.11 - Rejection of plaint - Suit expressly barred for any particular relief - Defendant must not be driven to trial in that behalf - Relief of specific performance and execution of documents whether by defendant or by court and also sanction of layout have become barred - those reliefs must therefore be deleted from trial - But plaintiff entitled to interest - Suit to the extent of interest at the bank rate would remain for adjudication in the trial. (Paras 15, 17, 18, 19)

JUDGMENT

JUDGMENT :- The Plaintiff entered into an agreement for sale dated 25th October 1996 with Defendant No.2. The Plaintiff has sued the Constituted Attorney of one Juni Mill Bekar Kamgar Varasdar Aani Janhit Sangharsh Samiti.

2. Under the agreement for sale the parties agreed that the sale deed would be executed and the sale would be completed by 25th April 1997. That was within six months of the execution of the agreement for sale. The parties further agreed that if that could not be executed, the Vendor would pay the purchaser interest at the usual bank rate for each day's delay and damages.

3. The Plaintiff filed the suit in 2007.

4. The agreement between the Plaintiff and Defendant No.2 expressly fixed the date for the performance of the agreement. The suit, therefore, had to be filed within three years of the date fixed for performance under the former part of Article 54 to Schedule-I of the Limitation Act 1963. The Plaintiff's suit is much after the period of limitation.

5. It is contended by the Plaintiff that the further agreement between the parties, after fixing the date for payment, for payment of interest of each day's delay and damage to the Plaintiff takes the case of the Plaintiff outside the purview of the former part of Article 54.

6. The execution of the agreement is admitted. The clause relating to the fixed date of performance of the agreement and the further agreement for payment of interest will have to be interpreted. It will have to be seen whether the date fixed for performance would have to be given a go-by upon the agreement between the parties for payment of interest in case of default.

7. Even if the further agreement between the parties for payment of interest would give the parties the right to claim interest, it would not extend the date of performance. The date of performance expressly fixed remains fixed. It is that date of performance which gives the parties the right to sue for specific performance of the agreement for sale. The parties would have further rights and entitlements. One such right is the payment of interest. Consequently, if the sale is not completed and the sale deed is not executed on or before the date fixed, aside from the right to sue for specific performance, the party would be entitled to a further right to claim interest. The right to claim interest would be available for a period of three years prior to the filing of the suit. No party can claim interest upon default of execution for a period of larger than three years.

8. Since the right to claim interest is a separate and independent right under the later part of the agreement. It does not, in any manner, impinge upon the right of specific performance of the agreement. If that right is claimed, it must be claimed within three years of the date fixed for execution. The grant of interest would not extend beyond that date.

9. If the parties extend the date of performance, the parties would agree to a later date to be fixed.

10. In this case the date fixed by the parties has remained at that. No other date is fixed, no extension for the performance of the contract is, therefore, agreed upon or granted between the parties. In fact the interest which was agreed to be payable has also not been claimed. Counsel on behalf of the applicant, therefore, rightly contends that there is no novatio between the parties. The date expressly fixed for the performance by the parties under the agreement remains and the suit for specific performance would, therefore, not fall within the latter part of Article 54.

11. Since the Plaintiff would be entitled to specific performance of the contract as also the right to claim interest for each day's delay under the agreement, the Plaintiff has claimed both these reliefs. Under Article 54 the Specific Performance cannot be claimed. The interest for the delayed execution of the sale deed can be claimed. That, of course, may be granted for a period of three years prior to the suit only as that would be a monetary claim.

12. A reading of the agreement between the parties would show that that amount can be claimed at any time and that claim would not be barred by the law of limitation.

13. The prayers in the plaint are for specific performance more specially the sanction of layout, the document to be executed through the Court, for interest on the amount of part consideration which remained to be paid by the Plaintiff and other incidental reliefs. The reliefs claimed under prayers (a), (a1) and (b) being the first three reliefs aforesaid are seen to be barred by the law of limitation. The suit, therefore, cannot proceed for those reliefs.

14. The learned Judge in the impugned order has considered the agreement between the parties as also Article 54 of the Schedule-I to the Limitation Act. However, the learned Judge has considered that it is a mixed question of law and facts. It is that observation which is erroneous. What is set out by the parties in express terms under an admittedly executed document is an admitted fact. Admitted facts need not be proved. Further facts arising from such admitted facts are, therefore, not required to be considered for the proof of admitted facts. Since it is admitted between the parties that under the agreement for sale the date for execution of the sale deed was fixed and the Plaintiff was also entitled to claim interest for the delayed execution, the rights of the parties would require to be adjudicated upon considering and interpreting that clause and no further facts.

15. It must also be borne in mind that oral evidence is excluded by documentary evidence. The documentary evidence is the execution of the agreement admitted by the parties. Whatever be the Plaintiff's rights must, therefore, be adjudicated upon by reading and interpreting the aforesaid clauses relating to the completion of the sale and the further right of claiming interest for delayed execution of the sale deed.

16. It must be appreciated that the salutary provision contained in Order 7 Rule 11 of the CPC is for the purpose of vetting the causes which come up before the Court. It would be an unsound practice to have all the cases sent to trial whether or not they fulfill the requirement of Order 7 Rule 11 of the CPC which would necessitate rejection of the plaint at the initial stage itself when an application in that behalf is made so that the parties are not driven to a needless trial.

17. A Court observing in a case of written contract that it would be a mixed question of law and fact makes a fundamental error. It sets at naught the specific salutary provision of considering the parties' case on admitted facts or admitted documents. It would, therefore, go against the CPC itself.

18. When it is seen that the suit is expressly barred for any particular relief the Defendants in this suit must not be driven to trial in that behalf. In this case it is seen that the relief of specific performance and execution of documents, whether by the Defendants or by the Court, as also the sanction of layout have become barred. Those reliefs must, therefore, be deleted. There would be no question of the Plaintiff's case being a case on facts as well as law for those reliefs.

19. Of course since the Plaintiff would also be entitled to interest at the bank rate for such period of time as would be allowable to the Plaintiff before the filing of the suit, the suit to that extent only would remain for adjudication in the trial.

20. Written statements of all the Defendants are filed. Issues have also been framed. Such of the case of the Defendants as is made out with regard to prayers other than prayers (a), (a1) and (b) would be tried in the suit. Such of the issues which relate to the remainder of the prayers alone may be answered.

21. Civil Revision Application is disposed off accordingly.

Ordered accordingly.