The issue of limitation, when dependent on the date of knowledge of facts or fraud, constitutes a mixed question of law and fact which cannot be determined summarily at the threshold under Order VII Rule 11 of the Code of Civil Procedure, necessitating a trial.

JUDGMENT

MINI PUSHKARNA, J.

I.A. 894/2019 in CS(OS) 635/2018

1. The present application has been filed by defendant no. 1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”), read with Article 53 of the Limitation Act, 1963 (“Limitation Act”), seeking rejection of the plaint on the ground that the suit is barred by limitation.

2. The suit in question, i.e., CS(OS) 635/2018 has been filed for recovery, declaration/cancellation and permanent injunction in relation to the Sale Deed dated 28th December, 2016 (“Sale Deed”), which pertains to the land comprising in Kh. No. 3/13 (4-16) and 3/14/1 (2-13), measuring 7 Bighas 9 Biswas, situated in the Revenue Estate of Village Dichaun Kalan, Delhi.

3. It is the case of defendant no. 1 that the suit is hopelessly barred by time as the plaintiffs themselves have made a case in their plaint that they were entitled to receive an alleged cash amount on 24th August, 2015, which was to be paid by defendant no. 1. Therefore, cause of action, if any, arose between the parties on the said date, i.e., 24th August, 2015, and as the present suit has been filed on 29th November, 2018, i.e., beyond a period of three years, the suit is liable to be rejected on account of being barred by limitation.

4. It is also the case of defendant no. 1 that in Para 24 of the plaint, the plaintiffs themselves stated that the cause of action arose on 24th August, 2015, when the alleged balance sale consideration became payable at the time of execution of the Sale Deed by the plaintiffs, subsequent to obtaining the No Objection Certificate in favour of defendant no. 1. As per plaintiffs’ own showing, the alleged amount was payable on 24th August, 2015, and thereby, the period of limitation would begin from the date when the defendants failed to make the payment. Therefore, the suit would be barred by limitation.

5. Defendant no. 1 has also contended that the plaintiffs have sought to invoke the limitation period from 28th December, 2016, i.e., the date of registration of the Sale Deed, however, once a document is registered it relates back to the date of execution, and presentation of the document has nothing to do with the payments being made. Therefore, in this case, the date of execution, i.e., 24th August, 2015 would be the date from which the cause of action of the plaintiffs begins, and not the date of registration, i.e., 28th December, 2016.

6. Lastly, it is contended by defendant no. 1 that the plaintiffs are estopped from contending against the Sale Deed dated 24th August, 2015 and its own Ikarnama dated 17th May, 2016. Further, no cause of action can arise from the date of service of Legal Notice on 29th September, 2016.

7. Per Contra, it is the case of the plaintiffs that the issue of limitation, being a mixed question of law and facts, can only be decided after trial is conducted, and the same cannot be decided at this stage.

8. It is further the case of the plaintiffs that it is the clear position of law that the period of limitation starts from the day when the title is accepted. Since in the present case, the Sale Deed was registered/accepted only on 28th December, 2016, therefore, the suit is not barred by limitation.

9. The plaintiffs have also contended that a clear case has been made out in the plaint that the amount was payable by defendant no. 1 subsequent