IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1470 OF 2012
SUIT NO. 158 OF 2012
Madhuriben K. Mehta & 3 Ors. ...Plaintiffs Vs.
Ashvin Rupsi Nandu & Anr. ...Defendants And
Jugnasha Kantilal Mehta ...Applicant (Original Plaintiff No.3)
Mr. Dharam Shah i/b. Dharam & Co., for Plaintiffs Mr. Zubin Behramkamdin with Mr. Diren Shah & Soma Sinha. Advocates i/b. Vimla & Co., for Defendant No.2
CORAM : MRS. ROSHAN DALVI, J.
Date of Reserving the Order : 20th July, 2012
Date of Pronouncing the Order: 2nd August, 2012
ORAL ORDER :
1. The Plaintiffs are mother and three children. They have entered into an agreement for sale with Defendant No.1 on 3 rd December 1988. On the date of the execution of the agreement Plaintiff Nos. 3 and 4 were minors. Their mother Plaintiff No.1 signed the agreement on behalf of herself and her minor children. Plaintiff No.2 has signed for herself. The consideration under the agreement was Rs.2.5 lakhs. Rs.1 lakh has been admittedly paid. The sale was to be completed within one month from the date the title was clear by the permission of the competent authority and the permission of the Court was obtained for sale of the minors' share. An Irrevocable General Power of Attorney was also executed similarly by the Plaintiffs along with the agreement for sale.
2. The execution of both these documents is admitted by all parties.
3. The Plaintiff Nos. 1 and 2 have also executed a declaration and indemnity on 6th December 1989 showing the possession of the property was handed over to Defendant No.1 and that they had not created any mortgage or lien or entered into any other transaction, but that they had given power of attorney as a part of the completion of the transaction and that they had received Rs.2.50 lakhs which was the consideration and indemnified Defendant No.1 against any claim.
4. It is the Plaintiffs' case that thereafter only in the year 2007 the Defendants sent to the Plaintiffs a draft Deed of Conveyance and draft Irrevocable General Power of Attorney to be executed along with a declaration-cum-indemnity bond. The Defendants are stated to have sent these by hand delivery. The Defendants have denied this aspect. It is, therefore, merely a oral case of the Plaintiffs that 18 years after the initial execution of the agreement for sale and power of attorney the Defendants sought to obtain the conveyance without having anything in the interregnum.
5. The Plaintiffs have relied upon a copy of a Deed of Conveyance shown to be executed on 20th March 1993, but for which the date in words is shown to be "eighty-nine". The Plaintiffs claim that that was merely a draft Deed of Conveyance. 3 NMS.1470.12-S.158.12.sxw
The copy annexed to the plaint shows the signatures of the Plaintiffs. The signatures of Plaintiff Nos. 1, 2 and Defendant No.1 are on pages 1,3,5 & 7 in the margin. Defendant No.1 has signed every page. The parties have signed against the receipt clause also. The receipt clause shows two cheque numbers by which the balance consideration of Rs.1.5 lakhs payable under the agreement for sale is shown to be paid. The cheques are shown to be dated 20th March 1993 they are shown to be drawn on Bombay Mercantile Bank. The name of the Bank, the addresses and the date of the cheques are also handwritten. Prima facie they appear to be in the handwriting of Plaintiff No.2. It is not the Plaintiffs' case that the signatures are forged. It cannot even be so alleged. The number of signatures put on the document makes it very clear.
6. The document also shows it having been stamped in 2007 by the Stamp No. A/1445/2007 on the top of the endorsement of the Collector of stamps.
7. It is the case of the Plaintiffs that the consideration under the document is not paid. It is the case of the Defendants that it is. The consideration is receipted in the Deed of Conveyance itself. The Defendants have shown the amount debited to their bank account. The Defendants have, however, not shown that the amounts are credited to the bank account of the Plaintiffs.
8. However, the document remained to be registered. The Defendant No.1 has sought to register a conveyance in February 4 NMS.1470.12-S.158.12.sxw
2007 under a Deed of Confirmation executed by him as a Constituted Attorney of the Plaintiffs under the Irrevocable General Power of Attorney executed by the plaintiffs in 1989.
9. It appears that the Plaintiff got information about the execution of the Deed of Conveyance in 2007. The Plaintiffs claim to have taken search of the records of the register and came to learn about the execution of the documents which they claim were not known to them. This includes the Deed of Conveyance of 1993 as also the Deed of Confirmation of 2007.
10. The Plaintiff No.4 through his Advocate's letter addressed to the Defendant No.1 called upon Defendant No.1 to make payment of the consideration under the agreement for sale stated to have been remaining unpaid and to complete the sale in respect of the suit property. Hence the Plaintiff No.4 who was at the time of the agreement for sale a minor sought to affirm the contract entered into by his mother on his behalf. He has not sought to avoid the contract. The Plaintiff No.3 has neither called upon Defendant No.1 to complete the sale nor sought to avoid the contract.
11. There are no disputes shown between the mother and the children. The minors who attained majority alleged that the transaction was against their interest and was not for legal necessity and could not have been entered into by their mother. Mr. Behramkamdin rightly pointed out that if that was so they would have also sued their mother, but instead the mother and 5 NMS.1470.12-S.158.12.sxw
the children have together sued the Defendants.
12. It may be mentioned that under Section 8(3) of the Hindu Minority and Guardianship Act 1956 the disposal of an immovable property by a natural guardian is voidable at the instance of minor. It is for the minor to avoid the contract. The contract can be avoided within the prescribed period of limitation. Article 60 of Schedule-I to the Limitation Act 1963 provides the period of 3 years from the time the minor attains majority to set aside a transfer made on his behalf by his guardian.
13. Defendant Nos. 3 & 4 attained majority in 1994 and 1996. They could have voided the contract in 1997 and 1999 respectively. They failed to do so. They must be taken to have acquiesced in the transfer. In fact in 2008 the minor Plaintiff No.4 affirmed the transaction.
14. The Plaintiff Nos. 1 and 2 who were majors and must be taken to be aware of the rights under the agreement of sale dated 3rd December 1988 under which they received the earnest amount of Rs.1 lakh and under which they were to receive balance amount of Rs.1.5 lakhs did nothing to have the contract specifically enforced. Even this suit is not for specific performance of the agreement of sale dated 3 rd December 1988. The Plaintiffs' right to claim specific performance is time barred because the completion of sale was to be within one month of the clearance of title or the permission to sell the minor's interest 6 NMS.1470.12-S.158.12.sxw
which transpired long ago. Hence the Plaintiffs have only sued for a declaration that the Deed of Conveyance executed in 2007 be declared void. The minors have sought a declaration that the sale of their interest be declared void.
15. Defendant No.1 has shown that the parties were well aware of the agreement and the completion of sale. It is because they had received consideration that they allowed Defendant No.1 to deal with the property. Plaintiff No.1 had attorned tenants in the suit property to Defendant No.1. She allowed Defendant No.1 to collect the rents. Defendant No.1 has shown the rent receipts issued by him to the tenants for payment of rents. The Plaintiffs have not disputed the rent receipts.
16. After the execution of the agreement for sale in 1998 Defendant No.1 gave public notice inviting claims. None was received.
17. It appears that for some reason the registration of the Conveyance remained to be done. After the conveyance was got registered in May 2007, Defendant No.1 has made the relevant entries in the Property Register Cards in September 2008. Defendant No.1 gave public notice in November 2009 showing that he was the purchaser under the agreement of sale dated 3 rd December 1988 and the conveyance deed executed on 20 th March 1993 and registered on 17th May 2007 stating that the consideration was paid by cheques and that the Vendors have handed over peaceful possession of the property along with the 7 NMS.1470.12-S.158.12.sxw
building structure thereon and the publishing that the Vendors have mischievously given a public notice that they had cancelled the deed of conveyance, which was not true.
18. It appears that after the conveyance was registered and the property register cards were altered, the Plaintiffs came to learn about the registration of the conveyance executed back in 1993. The Defendants sought to commence construction on the suit plot of land. It is then that the Plaintiffs got a public notice issued on 27th October 2009 stating that they have cancelled the Deed of Conveyance and none should enter into any transaction on the basis of the documents. It is thereafter that the Plaintiffs have sued.
19. Though the most determinative aspect is the payment and the receipt of consideration and though the payment is sought to be shown the receipt has not been shown by any contemporaneous evidence of the banking transaction, the fact that the tenants have been attorned and Defendant No.1 has been collecting rents show knowledge on the part of the Plaintiff that the Defendant No.1 had become the owner. That aspect was accepted. Plaintiff No.4 confirmed the transaction on attaining the majority. Plaintiff No.2 never sought to avoid the transaction entered into by her guardian. It is only because the conveyance was not registered in 1993 itself that the Plaintiffs sought to claim rights upon the registration made years thereafter when the construction on the suit land became rife. 8 NMS.1470.12-S.158.12.sxw
20. Mr. Behramkamdin on behalf of Defendant No.2 drew my attention to the judgment of the Supreme Court in the case of S. Shanmugam Pillai Vs. K. Shanmugam Pillai 1972 DGLS 295 [Equivalent Citations: 1973(2) SCC 312: 1972 AIR (SC) 2069 in paragraph 11 of which the requirement of the minors who sought to denounce any agreement entered into by their guardians is set out. In that case it is observed that the Plaintiffs who are minors would not have been bound by the agreement entered into, they being minors, if they have not chosen to standby it. It is open to them either to standby it or renounce it. It is observed in that case that it was reasonable to assume that the minors therein were aware of their rights upon the facts of that case. They did not deny the agreement. They continued to enjoy the properties. They went on alienating items of those properties. They were taken to have ratified the agreement entered into by their guardian as they elected to stand by that agreement. In this case the benefit that they would have obtained is only the consideration, but the circumstantial evidence about the allowance to receive rents by the purchaser in the agreement for sale shows that they stood by the agreement for sale even after Plaintiff Nos. 3 & 4 attained majority. Plaintiff Nos. 1 and 2 in any event stood by the said agreement at all times by attorning tenancies.
21. The Defendant No.1 has conveyed the suit property to Defendant No.2 under the registered deed of conveyance dated 24th February 2011.
22. The Plaintiffs are not entitled to any relief of injunctions. The Plaintiffs applied for ad-interim reliefs upon filing the suit. Ad-interim relief has been rejected by Justice Mohta on 1 st February 2010. The notice of motion was made returnable since 22nd March 2010. The parties have filed their respective affidavits in reply and rejoinder thereafter. The Notice of Motion has been pending since then. Both Counsel argued their respective cases on merits fully as would be apparent from the above order itself.
23. Both Counsel also stated that the issue of limitation has been raised and would have to be framed and determined under Section 9A of the CPC before the notice of motion, which they argued on merits, can be disposed of by adjudication on merits as held in the case of Royal Palms (India) Pvt. Ltd. Vs. Bharat Shah 2009(2) BCR 622 (supra) and Mukund Ltd. Vs. Mumbai International Airport (2011)2 MLJ 936 which inter alia followed the former judgment.
24. Section 9-A runs thus:
"9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue. -
(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of 10 NMS.1470.12-S.158.12.sxw
such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in sub-section(1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction." - Maharashtra Act (65 of 1977)(w.e.f.19-12- 1977).
25. Objection about limitation is taken at the hearing of this application for interim relief. The issue of limitation will have to be tried as a preliminary issue. Section 9A can be invoked at the time of the hearing of the interim relief. That is by way of a notice of motion for stay, injunction, appointment of Receiver or otherwise. The Court is required to determine the jurisdictional issue at the hearing of such application, which is by way of a notice of motion. Under Sub-Section(1) of Section 9A of the CPC this must be before granting interim relief which would be a relief pending the suit. Such an application for deciding the preliminary issue must be heard and disposed off expeditiously and not adjourned to the hearing of the suit. Under Sub-Section 2 of Section 9A any interim relief as may be considered necessary may be granted by the Court pending the determination of the preliminary issue.
26. Counsel on behalf of the Plaintiffs pressed for ad-interim relief. As aforesaid, the ad-interim relief was refused on 1 st 11 NMS.1470.12-S.158.12.sxw
February 2010 when the initial application was made upon seeing the years that had transpired since the agreement between the parties. Nothing has transpired and nothing was shown to merit another hearing of the ad-interim relief application. Nonetheless both Counsel have desired to conclude only the application for Ad-interim relief after extensive arguments on merits of their respective cases.
27. This Court is bound by the aforesaid judgments. However, this Court would be failing in its duty if it did not record the fallout of the procedure of considering all orders passed even upon detailed arguments on affidavits, as "ad-interim" orders despite the provision of Sub-Sec(2) of Section 9A containing the non-obstante clause referring to the provision contained in Sub- Sec(1) of Section 9A of the CPC. It may be noted that the abuse which was sought to be remedied by the introduction of Section 9A as set out in para 14 in the case of Smithkline Beechem Vs. HLL 2003(105) 2 BLR 547 which is recited in para 4 in the case of Royal Palms (supra) and para 11 in the case of Mukund Ltd. (supra), has given way to the other abuse of duplication of judicial work by repeated applications which has become an endemically circuitous practice.
28. Hence the following order:
1. The reliefs prayed for are refused.
2. The issue of limitation is framed as follows: 12 NMS.1470.12-S.158.12.sxw
Whether the suit is barred by the law of limitation.
3. It will be for the Plaintiffs to show how the suit is filed within the period of limitation.
4. The Plaintiffs shall file their affidavit of evidence and affidavit of documents as required.
5. The suit is adjourned to 24th August 2012 for considering the admissibility of documents, if any, of the Plaintiffs for determination of the preliminary issue.
(MRS. ROSHAN DALVI, J.)