Ashok Tamma Jadhav v. Trade Centre Developers And Builders Pvt. Ltd Pune. Thr. Managing Director Ishwar C. Parmar

1 19-AO-727-2024 C.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 727 OF 2024 WITH INTERIM APPLICATION NO. 30077 OF 2022 Ashok Tamma Jadhav ...Appellant

Versus

Trade Centre Developers And Builders Pvt. Ltd Pune. Thr. Managing Director Ishwar C. Parmar

...Respondent

SNEHA NITIN CHAVAN **** Mr. S.B. Patil a/w Akshay Kulkarni and Nikhil Pawar for the Appellant. **** by SNEHA NITIN CHAVAN Date: 2024.12.10 14:35:54 +0530 CORAM :

M.M. SATHAYE, J.

DATE :

9th DECEMBER 2024 P.C. :

1.

Heard learned counsel for the Appellant. Perused the record. 2.

The appeal is filed challenging the order dated 30.06.2022 passed by the District Judge-3, Pune in Regular Civil Appeal No. 117 of 2016 by which, Sp. Civil Suit No. 1826 of 2011 (which was dismissed on the primary issue of jurisdiction/maintainability from the perspective of limitation) is remanded back to the Trial Court for consideration in accordance with law.

3.

Learned counsel for the Appellant invited this Court's attention to the prayers in the plaint which indicates that Respondent/Plaintiff has sought declaration that Agreement dated 12.10.2005 between the parties be canceled and second prayer is made for recovery of possession of the suit property. He submitted that if 1/4

2 19-AO-727-2024 C.doc averments in paragraph 5 is considered, then Respondent-Plaintiff himself has come with the case that the time for payment under the Agreement dated 12.10.2005 stipulated as 12 months, was the essence of contract. Therefore, if the case of the Respondent is that this payment was not done within time, then on 12.10.2006 itself, the first cause of action has arisen and therefore, suit filed on 17.09.2011 is beyond limitation ex-facie. He submits that the prayer of possession made by Respondent/Plaintiff has to be treated as only incidental to cancellation of document prayed in the suit.

4.

I have considered the submissions. Perusal of the impugned Judgment and order shows that the Appeal Court has considered the relevant portion of the Judgment of Trial Court. The real question here is whether Article 58 of the Limitation Act providing 3 years limitation would govern the parties or Article 65 providing limitation of 12 years. 5.

It can be seen that the Trial Court applied Article 58, holding that to obtain the declaration as sought by the Respondent, period of limitation is 3 years and the right to sue has accrued on 12.10.2016. The Trial Court relied upon the paragraph 8 of the plaint, which records cause of action arising firstly on 12.10.2006. This date is considered and it is observed that suit filed on 17.09.2011 is apparently beyond the period of limitation under Article 58.

6.

In paragraph 29 of the impugned Judgment, the Appeal Court has rightly held that the issue of limitation is a mixed question of fact and law. It is therefore necessary to consider the pleadings regarding cause of action as a whole and not just the date of first cause of action which is essentially in respect of non payment of balance amount. For 2/4

3 19-AO-727-2024 C.doc the purpose of clarity, paragraph 8 of the plaint is reproduced below: "8. The cause of action first arose on 12.10.2006 when the Plaintiff did not pay the balance amount under the Agreement. It again arose on 8.8.2011 when the Plaintiff issued notice through their Advocate. The cause of action again arose on 14.09.2011 when the Plaintiff terminated the contract. The Plaintiff submits that the suit is within the limitation."

7.

It is therefore, clear that the Respondent/Plaintiff has come with the case that the agreement in question was treated as subsisting and it is only on 14.09.2011 that the Respondent/Plaintiff terminated the contract, when the last cause of action has arisen. Considering both these dates (October 2006 and September 2011) the suit filed in September 2011 cannot be treated as barred by limitation, if the prayer of possession is considered. Admittedly, the transaction involves immovable property and therefore, whether time was the essence of the contract or not, will have to be considered only on apprehension of evidence. In any case, at the preliminary stage of jurisdiction/maintainability, in my view, the Respondent/Plaintiff cannot be non suited just because the prayer of possession is written as second prayer and prayer of cancellation of document is written as first. 8.

The Appeal Court has rightly considered the cause of action on 14.09.2011 (termination of contract) and held that the period of limitation of 12 years would apply under Article 65 of the Limitation Act, to the facts of the case.

9.

In the aforesaid facts and circumstances, the Appeal Court has directed remand of the matter. The view taken by the Appeal Court is 3/4

4 19-AO-727-2024 C.doc neither perverse nor there is any error apparent on the face of record. The conclusion drawn is on the basis of the material before it. As such no interference is required.

10.

Hence the Appeal from Order and pending Interim Application are dismissed. No costs.

11.

copy of this order.

(M.M. SATHAYE, J.) 4/4