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2013 Supreme(Bom) 1200
High Court of Judicature at Bombay
ROSHAN DALVI, J.
Kewal Kishan Aggarwal & Others
Versus
The Board of Trustees of the Port of Mumbai & Others
Suit No.3235 of 1997
Decided on: 04-07-2013
For the Plaintiffs:Zal Andhyarujina, a/w. A.S. Dayal, Advocates.
For the Defendants:U.J. Makhija, Adv. i/b. M.V. Kini & Co., Advocates.
The main legal point established in the judgment is that the suit for renewal of leases was time-barred under the Major Port Trust Act, 1963 and the Limitation Act, 1963.
Headnote:
Renewal of Leases - Limitation - Major Port Trust Act, 1963 - Transfer of Property Act, 1882 - Limitation Act, 1963
Fact of the Case:
The plaintiffs sought renewal of 7 leases for a further 99 years, which had expired on 10th December, 1978. The defendants contended that the suit was barred by limitation and res judicata, and denied the requirement of renewal on merits.
Finding of the Court:
The court found the suit to be barred by the law of limitation, as the cause of action accrued prior to the date of refusal by the defendants, and the notice given by the plaintiffs was well after the expiration of the limitation period. The court also held that the suit was not barred by principles of res judicata.
Issues: 1. Suit barred by the law of limitation. 2. Suit barred by principles of res judicata. 3. Entitlement to renewal of leases. 4. Acceptance and acquiescence in the renewal of leases. 5. Relief entitled to by the plaintiffs.
Ratio Decidendi: The court held that the suit was time-barred as the cause of action accrued prior to the date of refusal by the defendants, and the notice given by the plaintiffs was well after the expiration of the limitation period. The court also found that the suit was not barred by principles of res judicata as the issues in the Writ Petition were different from those in the suit.
Final Decision: The suit was dismissed.
1. 7 leases in favour of the Plaintiffs for 7 contiguous lands executed on 7 different dates have all expired on 10th December, 1978. The Plaintiffs desire the leases to be renewed for a further period of 99 years as envisaged in the renewal clauses. The Defendants contend that the suit is barred by the law of limitation as also on principles of Res-judicata aside from a denial of the requirement of renewal of the leases on merits.
ISSUES
1. Whether the suit is barred by the law of limitation.
2. Whether the suit is barred by principles of res judicata or principle analogous to res judicata.
3. Whether the Plaintiffs are entitled to renewal of the 7 leases in favour of the Plaintiff.
4. Whether the Defendant No.1 accepted and acquiesced in the renewal of the leases in favour of the Plaintiffs.
5. What relief, if any, are the Plaintiffs entitled to?
2. Issue Nos. 1 and 2 would be require to be tried as preliminary issues under the provisions of Order 14 Rule 2 of the CPC. These issues are agreed to be tried as preliminary issues upon questions of law and admitted facts by arguments on behalf of both the parties.
3. Issue No.3 is also agreed to be tried on arguments of counsel upon the interpretation of the renewal clause and the applicable law without the need for leading any further oral evidence. If the issues of limitation and Res judicata are answered in favour of the Plaintiffs, they would be allowed to proceed to have the suit heard on merits. The decision of the issue in favour of the Plaintiffs would not require issue No.4 to be tried and answered. Consequently that issue would be decided under the provisions of Order 15 Rule 3 of the CPC. It was argued that if that issue is answered against the Plaintiff then the Issue No.4 would become material to be tried on oral and documentary evidence with regard to the disputed facts for determination of the ultimate reliefs in issue No.5, the Plaintiffs having claimed the relief of declaration that the leases stands renewed and an order for execution of 7 indentures of lease which is in essence specific performance of contracts of leases.
4. Under the aforesaid circumstances, counsel on behalf of both the parties have argued the questions of limitation and res judicata in the suit itself.
ISSUE NO.1
Re : Law of Limitation :
5. The renewal clauses in the 7 leases provided that on the expiration of the term of the lease when required and requested by the lessees and at the cost of the lessees, their successors or assignees the lessor, his successor or assigns would grant a new and renewed lease of the demised portion to the lessees, their successors and assigns for a term of 99 years at the same rent and subject to the same conditions and provisions contained in the leases including the covenant for its renewal.
6. Since prior to the expedition of the leases the Plaintiffs have corresponded with Defendant No.1. The first letter in that behalf has been sent by the Plaintiffs on 16th December, 1977 through their attorneys. The letter shows that the Plaintiffs were making the applications for renewal well in advance of the termination of the leases as required by Defendant No.1 in whom each of the leasehold premises had vested. The Plaintiffs called upon Defendant No.1 to confirm that they would renew all the 7 leases upon which they would send the copy of the draft of the leases for the approval of Defendant No.1 at the cost of the Plaintiffs.
7. The Plaintiffs, therefore, knew their right to have the leases renewed. They exercised their option and requested Defendant No.1 to do so. They offered to draft the lease deeds. That would be upon the confirmation of Defendant No.1 and at their cost. This the Plaintiffs would be required to do within the period of limitation. If the Defendants failed to carry out their act for the option exercised by the Plaintiffs or the request made by the Plaintiffs, the Plaintiffs would require to sue Defendant No.1 within the period of limitati
