(Rohinton Fali Nariman and Indu Malhotra, JJ.)
Harjinder Pal Singh ________________________________ Appellant
v.
Narender Kumar Nangia __________________________ Respondent
Civil Appeal No. 6073 of 2018 [Arising out of SLP (Civil) No. 7218 of 2018], decided on July 5, 2018
The Order of the court was delivered by
Order
1. Leave granted.
2. The plaintiff in the present suit asked for the relief of specific performance.
3. The plaint in the suit is dated 08.02.2012.
4. An application dated 05.04.2014 was taken out by the defendant under Order VII Rule 11 of Civil Procedure Code, 1908 stating, inter alia, that the suit was clearly barred by limitation. By an Order dated 29.09.2015, passed by the learned Civil Judge, Junior Division, Gurgaon, it was stated that limitation being a mixed question of fact and law would require evidence and, therefore, on this ground no order VII Rule 11 application would lie. The learned Civil Judge also stated that a dispute as to court fee would also require evidence, as also whether the agreement is fabricated or otherwise. In the event, all three points were decided against the defendant and the Order VII Rule 11 application was dismissed.
5. In a civil revision filed in the High Court, the impugned judgment referred to para 30 of the plaint and stated that since according to the averment in the plaint, the cause of action arose for the first time on 26.07.2007 and thereafter on various dates, this would show that this would be beyond a period of three years and that therefore, such suit for specific performance would be barred by limitation.
6. In this view of the matter, the High Court allowed the revision petition and rejected the plaint under Order VII Rule 11, CPC.
7. We have heard learned counsel for the parties. We have been taken through the plaint in the course of arguments
8. Para 22 of the plaint clearly states:
“That on 04.07.2011, the plaintiff finally came to know that the Defendant No. 1 had mortgaged the suit property with defendant No. 2 and in fact lost the case before Learned debt Recovery Tribunal and his application for stay has also been dismissed by Learned debt Recovery Appellate Tribunal and before the Hon’ble High Court in W.P.(Civil) No. 4382 of 2011. The plaintiff then immediately went to the office of defendant No. 2 where he was informed about some matter pending in Learned Debt Recovery Tribunal against the defendant No. 1. On 04.07.2011, the Plaintiff immediately contacted the defendant No. 1 who first refused to acknowledge the above facts but when the plaintiff requested him to get the NOC from HSIDC and execute the sale deed then the defendant No. 1 refused to do so.”
9. Article 54 of the Limitation Act is reproduced herein:
| Description of suit | Period of limitation | Time form which period begins to run |
| For specific performance of a contract | Three years | The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. |
10. Having perused the Agreement for Sale, it is clear that no fixed date for performance is mentioned as a result of which the second part of Article 55 of the Limitation Act gets attracted to the facts of the present case.
11. This being so, therefore, in a specific performance suit the only relevant date sofar as specific performance is concerned, is the date when the agreement was refused to be performed. It is prime facie clear from a reading of the plaint as a whole that such refusal took place in July, 2011. The Trial Court is, therefore, correct in saying that a mixed question of law and fact, depending on the evidence led, would arise qua limitation. This being the position, we set-aside the judgment and order passed by the High Court.
12. The appeal is allowed in the aforesaid terms.
13. Pending applications, if any, shall stand disposed of.
Petition(s) for Special Leave to Appeal (C) No(s). 7218/2018
Harjinder Pal Singh ________________________________ Petitioner
v.
Narender Kumar Nangia ___________________________ Respondent
(FOR ADMISSION and I.R.)
Date : 05-07-2018 This petition was called on for hearing today.
(Before Rohinton Fali Nariman and Indu Malhotra, JJ.)
For Petitioner(s) Mr. Rajat Aneja, Adv.
Ms. Chandrika upta, Adv.
Mr. K. N. Rai, AOR
For Respondent(s) Mr. Sunil Magon, Adv.
Mr. Shree Pal Singh, AOR
UPON hearing the counsel the Court made the following
ORDER
14. Leave granted.
15. The appeal is allowed in terms of the signed order.
16. Pending applications, if any, shall stand disposed of.
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