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HIGH COURT OF BOMBAY
N.B. Suryawanshi, J
M/s Pyramid Realtors – Appellant
Versus
Prabhakar S/o Gulabrao Bodkhe – Respondent
Civil Revision Application No. 37 of 2020 | Civil Revision Application No. 38 of 2020
For the Appellants/Petitioners: Shri M.G. Bhangde, Shri M.R. Johrapurkar
For the Respondents: Shri S.P. Dharmadhikari, Shri R.B. Dhore, Shri Anjan De
Limitation for filing suit must be determined through factual context and evidence, especially in cases involving alleged fraud.
Headnote:(A) Code of Civil Procedure, 1908 - Order VII Rule 11 - Limitation Act - Mixed question of law and facts - Plaintiffs challenge sale deed executed by Power of Attorney holder - Court ruled on limitation based on the date of plaintiffs' knowledge, determined as mixed question of law and fact requiring evidence before dismissal. (Paras 7, 12, 18)
(B) Fraud - Agents’ fraud on principals - Knowledge of agents binding on principals unless fraud is involved - Liability of agents discussed in the context of contract law where agent's deceit negates imputation of knowledge to the principal. (Paras 17)
Facts of the case:
The plaintiffs sought cancellation of a sale deed executed in favor of the defendant through a Power of Attorney, claiming they were unaware of this transaction until 2017.
Findings of Court:
The trial court denied the request for plaint rejection, suggesting limitation is a factually mixed issue needing evidence.
Issues: Whether the plaintiffs' suit is barred by time limitations and if fraud was involved in the execution of the sale deed.
Ratio Decidendi: The court emphasized that limitation should be substantiated with evidence and not rejected summarily, especially where fraud is alleged.
Result: Civil revision applications dismissed.
| Table of Content |
|---|
| 1. challenge to the validity of a sale deed executed through power of attorney. (Para 3 , 4 , 5) |
| 2. court's analysis on limitation as a mixed question necessitating factual evidence. (Para 6 , 8 , 9 , 12 , 18) |
| 3. arguments regarding knowledge of the sale deed and the actions of the agent. (Para 10 , 11) |
| 4. fraud by agents negating imputed knowledge to principals. (Para 17) |
JUDGMENT
1.Heard fnally at the admission stage with the consent of the parties.
2. Since both these civil revision applications raise similar question of law and facts, they were heard together and are being decided by this common judgment.
3. Both these civil revision applications challenge the order passed by 6th Joint Civil Judge, Senior Division, Nagpur below application Exh-32 in Special Civil Suit No. 384 of 2019 as well as order passed below Exh-27 in Special Civil Suit No.472 of 2019, thereby dismissing both the applications fled by defendant no.1/applicant, for rejection of plaint under Order VII Rule 11 with Section 9-A of the Code of Civil Procedure.
4. Brief facts of the case are that, non-applicants/ plaintiff Nos. 1 to 4 in both the civil revision applications, fled Special Civil Suit No. 384 of 2019 and Special Suit No. 472 of 2019 thereby seeking cancellation of sale deed dated 25/01/2008, executed by the plaintiffs through Power of Attorney (for short ‘POA’) in favour of defendant no.1.
Following reliefs are claimed in both the suits :
“1) The Hon’ble court be pleased to declare that the sale deed dated 25-1-2008 executed by plaintiffs through power of attorney holder Shri Kamlesh Dadhe in favour of defendant No.1 is null and void and not binding upon the plaintiffs.
2) In the event this Hon’ble court comes to the conclusion that the sale deed cannot be declared as null and void, be further pleased to direct the defendants to execute a deed of correction in the sale deed dated 25-1-2008 and direct the defendants to provide fve developed plots to plaintiffs abutting 15 meter DP Road from potable area total admeasuring 25,000 sq.ft. (2322 sq.mtrs).
3) Be further pleased to direct defendants to incorporate that the area of sale to defendant is 6470 sq.mtr. out of Survey no. 312/3 of Mouza-Chinch Bhawan, Tah. & District Nagpur.
4) Be further pleased to direct the defendants to co-operate with the plaintiffs in obtaining TDR in accordance with law and be further pleased to permanently restrain the defendants from claiming any TDR.
5) Be further pleased to permanently restrain the defendants, their directors, agents, ofce-bearers, servants, relatives or any other person acting on their behalf from creating further partition of the suit property till the plaintiffs are placed in vacant possession of their fve plots total admeasuring 25,000 sq.ft. From and out of plotable area and certifcate of TDR in accordance with law.
6) Any other relief which this Hon’ble court deems ft under the facts and circumstances be also granted in favour of plaintiffs..
5. The defendants appeared and resisted the suits by fling written statement. Defendant no.1 fled application Exh- 32 in Special Civil Suit No. 384 of 2019 and application Exh.27 in Special Civil Suit No. 472 of 2019 seeking rejection of plaint under Order VII Rule 11 of with Section 9-A of the Code of Civil Procedure contending that the plaintiffs have admitted that they executed POA in favour of Kamlesh Dadhe which was duly registered on 24/11/2005 and the POA holder executed development agreement for 0.67 HR of the land which was registered on 24/11/2005. Another agreement of development for balance 0.80 HR land was executed on 31/01/2006 and it was registered on 02/05/2006. Therefore the question of getting knowledge for the frst time by the plaintiffs as is averred in the claims is unacceptable.
The date of execution of sale-deed has to be treated as date of knowledge to the plaintiffs. In the plaint, there is no prayer seeking cancellation of POA. The POA is not joined as party defendant in the suit
