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2018 Supreme(MP) 560
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
ROHIT ARYA, J.
HIMMATLAL AND OTHERS - Appellants
Vs.
RAJRATAN CONCEPT AND OTHERS - Respondents
Civil Revision No. 191 and 192 of 2014
Decided On : 03-07-2018
A.K. Sethi, Adv., Nitin Phadke, Adv., Amit Dube, Adv., D.C. Patel, Adv.
The determination of whether time is the essence of the contract and factual matters such as advance payments and the validity of the agreement to sell require evidence and cannot be decided at the preliminary stage.
Headnote:
Specific Performance - Agreement to Sell - Madhya Pradesh Land Revenue Code, 1959 - Limitation Act, 1963 - Order 7 Rule 11(d) CPC - Article 54 of the Limitation Act - [SUMMARY]
Fact of the Case:
A suit for specific performance of an agreement to sell, declaration, permanent injunction and delivery of possession of the suit land is pending consideration. The plaintiff alleged that the defendant No.1 succeeded the suit property by virtue of a written 'Will' and received advance payments for the sale. The defendants filed an application contending that the suit is barred by time under Article 54 of the Limitation Act.
Finding of the Court:
The trial Court observed that the contest between the parties regarding advance payments and the agreement to sell requires factual adjudication and cannot be addressed under Order 7 Rule 11(d) CPC. The Court also emphasized that the question of whether time is the essence of the contract is a question of fact and cannot be determined at this stage.
Issues: The main issues revolved around the validity of the agreement to sell, the timeline for filing the suit, and whether time was the essence of the contract.
Ratio Decidendi: The Court held that the determination of whether time is the essence of the contract and the factual matrix regarding advance payments require further evidence and cannot be decided under Order 7 Rule 11(d) CPC.
Final Decision: The Court dismissed the civil revisions, finding that the trial Court did not commit any error in rejecting the application under Order 7 Rule 11(d) CPC.
Rohit Arya, J.
This order shall govern disposal of Civil Revision No.191/2014 and Civil Revision No.192/2014 by the defendants No.2, 3 and 5 / petitioners preferred under section 115 CPC as the parties are same, facts are identical and question involved is similar in nature, hence decided by this common order.
Civil Revision No.191/2014 is directed against the order dated 01/09/2014 passed in civil suit No.1-A/2013. The trial Court has rejected the application filed by the petitioners under Order 7 rule 11(d) CPC.
Civil Revision No.192/2014 is directed against the order dated 01/09/2014 passed in civil suit No.1-A/2014.
The trial Court has rejected the application filed by the petitioners under Order 7 rule 11(d) CPC.
For the sake of convenience, facts in Civil Revision No.192/2014 have been dealt with.
2. Facts relevant and necessary for disposal of this revision petition are in narrow compass: A suit for specific performance of an agreement to sell, declaration, permanent injunction and delivery of possession of the suit land is pending consideration since the year 2014 vide civil suit No.1-A/2014 in the Court of Additional District Judge, Sardarpur, District Dhar. The plaintiff inter alia contended that the agreement to sell of the suit land; agricultural land described in paragraph 3 of the plaint was entered between the plaintiff and the defendant No.1 on 27/06/2002 for a consideration of Rs.70.00 lakhs.
3. The defendant No.1 Smt. Chandarbai w/o late Champalal Jain succeeded the suit property by virtue of written 'Will' dated 20/01/2000 notarized vide No.218/2000, a testamentary succession to the exclusion of the defendants No.2 to 9 (i.e., sons and daughters) of the deceased and the same is duly mutated in her name in the revenue record.
4. It is further pleaded that an advance of Rs.1,00,000/- was paid at the time of execution of the agreement (paragraph 9 of the plaint). Further, in paragraph 10, it is pleaded that defendants No.4 to 9 had also received Rs.1,00,000/- each and also acknowledged the same by affixing signatures and thumb impressions on the reverse side of the agreement to sell.
5. In paragraph 14, it has been further pleaded that while the plaintiff called upon the defendant No.1 for registration of the sale deed, the defendant No.1 had apprised that the objection raised by the defendant No.3 was resolved by entering into a compromise vide order dated 23/12/2003 passed by the Civil Judge, Class-I. However, Rs.3,00,000/- was demanded by the defendant No.1 to meet the expenses incurred by her for various religious activities undertaken in the memory of her late husband with promise to handover the possession of the suit land with kabja receipt and for obtaining necessary permission from the office of the Collector, District Dhar under section 165(6A) of the Madhya Pradesh Land Revenue Code, 1959.
6. The defendant No.1 had received Rs.3,00,000/- in cash on 18/08/2004 and also acknowledged the same in writing in the second copy of the agreement to sell (remained with her) in the presence of her son, defendant No.4. Thereafter, the kabja receipt was handed over to the plaintiff. For ready reference paragraph 14 of the plaint is quoted below :
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7. It is further pleaded in paragraph 20 that again a sum of Rs.3,00,000/- was paid to the defendant No.1 on 06/12/2010 in the Court of Tahsildar, Sardarpur in the presence of defendants No.2 to 5 duly acknowledged by the defendant No.1 on the overleaf part of the agreement to sell by affixing her thumb impression and signature and also bearing signature of Tehsildar. For ready reference paragraph 20 of the plaint is quoted below :
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8. Plaintiff has also pleaded other relevant facts with reference to and in the context of the agreement to sell in different paragraphs of the plaint narrating the sequence of events related to avoidance and obstructions to exe
