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2018 Supreme(MP) 530
IN THE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
ROHIT ARYA, J.
Himmatlal and others - Petitioners
Versus
M/s Rajratan Concept and others - Respondents
Civil Revision No.191, 192 of 2014
Decided On : 03-07-2018
For the Petitioners:Shri A.K. Sethi, Senior Advocate assisted by Shri Nitin Phadke, Advocate.
For the Respondents:Shri Amit Dube, Advocate., Shri D.C. Patel, Advocate.
The main legal point established in the judgment is that the question of whether time is the essence of a contract of sale is a question of fact to be determined based on the intention of the parties and the surrounding circumstances.
Headnote:
Limitation - Specific Performance of Contract - Article 54 of the Limitation Act - The court addressed the question of whether time was the essence of the contract of sale and found that it was a question of fact to be determined based on the intention of the parties and the surrounding circumstances. The court emphasized that the onus to plead and prove that time was of the essence of the contract was on the party alleging it. The court also referred to relevant legal principles and precedents to support its decision.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement to sell, declaration, permanent injunction, and delivery of possession of the suit land. The defendants filed an application contending that the suit was barred by limitation under Article 54 of the Limitation Act, 1963, as it was not filed within the prescribed time period.
Finding of the Court:
The court found that the question of whether time was the essence of the contract of sale was a question of fact and could not be addressed on an application under Order 7 Rule 11(d) CPC. The court emphasized that the intention of the parties and the surrounding circumstances needed to be considered to determine if time was of the essence of the contract.
Issues: The main issue was whether the suit for specific performance of the agreement to sell was barred by limitation under Article 54 of the Limitation Act, 1963.
Ratio Decidendi: The court held that the question of whether time was the essence of the contract of sale was a question of fact and could not be addressed on an application under Order 7 Rule 11(d) CPC. The court emphasized that the intention of the parties and the surrounding circumstances needed to be considered to determine if time was of the essence of the contract.
Final Decision: The court dismissed the civil revisions, finding that the trial court did not commit any error of law and fact or jurisdictional error while rejecting the application under Order 7 Rule 11(d) CPC.
ROHIT ARYA, J.
1. 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:
^^14- ;g fd oknhx.k }kjk Áfroknh Øekad 1 ls oknksDr Hkwfe ds iath;u gsrw tkudkjh pkgh xbZ rc Áfroknh Øekad 1 }kjk ;g tkudkjh nh xbZ dh iq= Áfroknh Øekad 3 dh gd laca/kh vkifRr dk fujkdj.k O;ogkj U;k;ky; oxZ 1 ds ikfjr vkns'k fnukad 23-12-2003 dks vkilh jkthukesa ds }kjk gks x;k gS ,oa esjs LoxhZ; ifr dh ;kn esa fd, x, /kkfeZd dk;Z ds [kpZ ds fy, vuqca/k isVs 3 yk[k /kujkf'k dh foØ; vuqca/k isVs vkSj ekax dh xbZ rFkk /kujkf'k ÁkfIr ds lkFk dCtk jlhn nsus dh Hkh ckr dgh rRi'pkr vuqca/k i= iath;u djkus gsrw dysDVj egksn; /kkj ls 165¼6d½ dh vuqefr dk vkosnu nsus dk Hkh vk'oklu fn;kA oknhx.k }kjk /kujkf'k nsus ckcr dksjk vk'oklu gh ugha fn;k oju mlds }kjk Áfroknh Øekad 1 }kjk
