Andreza IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 2350 OF 2021 (FILING)

WITH CIVIL APPLICATION NO. 2351 OF 2021 (FILING)

Mr. Mudhit Madanlal Gupta, Son of Madanlal Gupta, 47 years of age, married, Indian National, businessman, Sole Proprietor M/s. Emgee Constructions having office at 17/17H, Bahubhali Bldg, Cawasji Patel Street, Fort, Mumbai, Maharashtra, 400 001, represented herein through his power of Attorney Mr. Caetano Fernandes, Son of Mr. Simon Fernandes, 41 years of age, married, residing at House no. 524, Post office; NIO, … Appellant Dona Paula, Goa.

V e r s u s

1. Mr. Mazher Khan Farooqui, son of Aziz Khan Farooqui, 51 years of age, married, Indian National;

2. Mrs. Jamal Farooqui, wife of Mazher Khan Farooqui, 44 years of age, married, Indian National, Both residing at A/2/1, Sand …Respondents Dunes Apartments, Miramar Panaji, Goa.

Mr. S. S. Kantak, Senior Advocate with Mr. J. Supekar, Mr. S. Sayed, Mr. S. Kher and Mr. Rozer D'Souza, Advocates for the Appellants-Applicant.

Mr. C. Padgaonkar, Advocate for the Respondents.

_______________________

CORAM: G. S. KULKARNI &

BHARAT P. DESHPANDE, JJ RESERVED ON : 24 NOVEMBER 2022 PRONOUNCED ON: 16 DECEMBER 2022 _______________________

JUDGMENT (per G.S. KULKARNI, J.)

1. As to whether the learned Trial Judge was correct in rejecting the plaint as filed by the appellant-plaintiff being ex facie barred by limitation, primarily on the ground that by clever and skillful drafting, a dead cause of action was camouflaged to be subsisting, is the issue in the present proceedings.

2. This appeal is directed against an order dated 29 October, 2021, passed by the learned Adhoc Senior Civil Judge 'A' Court, at Mapusa, whereby an application filed by the respondents-defendants for rejection of plaint under Order VII Rule 11 (a) and (d), read with Section 151 of the Code of Civil Procedure Code (CPC), has been allowed on the ground that ex facie the suit was barred by limitation inasmuch as the suit Memorandum of Understanding (for short, 'MoU'), dated 12 March 2010, was terminated by the respondents- defendants on 14 January 2012 and the suit itself was filed on 27 February 2017. Also, there was no relief claimed challenging the termination. The learned Trial Judge also observed that the other reliefs were consequential to the MoU which itself stood terminated in the year 2012 and hence the relief based on the said MoU was not available to the appellants-plaintiffs. There is another ground on which the plaint is rejected, namely, that the MoU was an agreement to enter into a further agreement namely a Development Agreement, which was to be entered into only after the zone of the land was changed by the Government from 'Orchard' to 'Settlement land' and as the zoning had not changed, the MoU was also hit by Section 32 of the Indian Contract Act, 1872 (for short 'Contract Act'), which provides that contingent contracts cannot be enforced by law unless and until the contingent event takes place. The learned trial Judge has held that such contingency had not taken place before its termination on 12 January, 2012 and nor had it taken place even on the date of filing of the suit, hence, the MoU cannot be enforced and the suit would be barred under the Contract Act, as well. The relevant findings as recorded by the learned Trial Judge are required to be noted, which reads thus :

“6. In this application, it is rightly contended by the Ld. Adv. for the defendants that the relief (a) sought in the plaint to declare that the MOU is still valid, binding and subsisting between the parties is barred under Article 58 of the Limitation Act. Ld. Adv. pointed out that in their reply dated 20.10.2016, the defendants have referred to the letter dated 14.1.2012 by which the said MOU was admittedly terminated by them. This suit was filed on 27.2.2017. No relief is claimed challenging the said termination | and rightly so being beyond three years and hence barred under said Article 58.

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