TMI Blog2022 (7) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... .10 to 12 approached the Plaintiff for settlement and agreed to pay consideration price for purchasing the suit properties, Defendant Nos.10 to 12 had not paid full consideration and hence there was no settlement. From reading of the plaint, it is apparent that the Plaintiff was aware that he was executing the documents/Conveyance Deeds to transfer his rights in the suit property in favour of another. He was thus conscious that the character of the documents was one, by which he was to receive consideration and he would to transfer his right, title and interest favour of another. If the Plaintiff were at all aggrieved by the Conveyance Deeds as to there being fraud as to the contents of the Conveyance Deeds, the Plaintiff was obligated to file a Suit for setting aside of the conveyance deeds and for which limitation of three years under Article 59 of the Limitation Act would be applicable. At the latest the present suit should have been filed within a period of three years from such knowledge which would be at the latest three years from 14.02.2017 when the Plaintiff had filed the affidavit in reply to the Chamber Summons and the three years period expired on 15.02.2020. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension of limitation applicable to Suits by the Supreme Court in its orders in light of corona virus pandemic since March, 2020. This is in view of my finding that the present Suit would have to be filed latest by 15.02.2020 - Section 31 of the Specific Relief Act would be applicable for setting aside of the Conveyance Deeds. The period of limitation would undoubtedly be a period of three years for setting aside the impugned conveyance deeds and which period has in my view expired, prior to the filing of the present Suit. The Plaint filed in the captioned Suit is rejected under Order VII Rule 11(d) on the ground that the Suit appears from the statement in the plaint to be barred by the law of limitation - Application rejected. - R.I. Chagla, J. Mr. Chetan Kapadia a/w Chaitanya Chavan, Rahul Singh and Pranali Raut i/b M/s. Legal Catalyst for the Plaintiff. Mr. Naushad Engineer with Shreya Jha a/w Mr. Hemang Raythattha, S.M. Seegarla, Shalaka Chamboowala and Swapnil Shikhare i/b RMG Law Associates for Defendant Nos.1, 3 and 4. Mr. Mayur Khandeparkar a/w Vikranmjit Garewal and Ms. Priyanka Fadia i/b Shashank Fadia for Defendant Nos.2, 5, 6 and 7. Mr. Anki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of settling the disputes between the Plaintiff s family and the Agarwal family, Memorandum of Understanding dated 11.12.2008 came to be executed between the Plaintiff, Defendant Nos.13, 15 and Defendant Nos. 3 and 4. Under the said Memorandum of Understanding, Defendant Nos.3 and 4 were the purchasers of the suit properties. The total consideration mentioned therein was a sum of Rs.13,51,00,000/- and for which postdated cheques payable within 11 months were handed over to the Plaintiff. It was agreed between the parties to the said Memorandum of Understanding that Defendant No.1 shall settle/ cause settlement with all parties at their own costs and have the injunction order vacated. 4 Sometime in December 2013, Defendant No.3 called the Plaintiffs and his family members to his office at Gurgaon for the purpose of executing conveyance deeds. The Plaintiff has claimed that Defendant No.3 had informed the Plaintiff that the said Memorandum of Understanding would have to be registered and for which signatures on several documents, bank papers and stamp papers were obtained by Defendant No.3 from the Plaintiff and his family members. It was in the month of February, 2014 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8 Defendant Nos.10 to 12 filed Chamber Summons No.1741 of 2016 in the Suit filed by their predecessors. The suit being Suit No.358 of 1980 which had been transferred to the Bombay City Civil Court due to change in the pecuniary jurisdiction. It was specifically stated in the Chamber Summons that the Mali family i.e. family of the Plaintiff had settled their disputes in the said Suit and necessary documents were executed to record the settlement. 9 The Plaintiff through their Advocates issued public notice on 18.01.2017 stating that the Plaintiff is constrained to file a Suit seeking declaration from this Court to declare the Deeds of Conveyance dated 13.12.2013 as null and void being obtained by fraud. The public notice was issued in two newspapers namely Navshakti in Marathi and Free Press Journal in English for cautioning the general public for not dealing in any manner in respect of the suit properties. 10 The Plaintiff in response to the Chamber Summons No.1741 of 2016 filed the affidavit dated 14.02.2017 in Suit No.358 of 1980 wherein they stated that the Plaintiff in that Suit, namely the Defendant Nos.10 to 12 in this Suit had approached the Plaintiff herein for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Nos.1, 3 and 4 has submitted that from the facts, as set out in the plaint, it is apparent that the Suit is barred by the Law of Limitation. He has submitted that the Plaintiff has admittedly been a party to the Conveyance Deeds which he has impugned in the present suit, having executed the same and by which Conveyance Deeds, the suit properties were transferred to the Original Defendant Nos.10 to 12. This is borne out from paragraphs 33 and 35 of the plaint read with the Plaintiff s affidavit dated 14.02.2017 which is in response to the Chamber Summons No.1741 of 2016 filed in Suit No.358 of 1980 and by which the Plaintiff has admitted that the Original Defendant Nos.10 to 12 approached the Plaintiff for settlement and agreed to pay consideration price for purchase of the suit properties. However, the full consideration was not paid by Defendant Nos.10 to 12 and hence, there was no settlement. Accordingly, the claim of the Plaintiff is that the documents were executed by fraud. 14 Mr. Engineer has submitted that assuming that there is any fraud or misrepresentation, the same was to the knowledge of the Plaintiff by 22.08.2016 or 14.02.2017 and the Plaintiff himself has state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wanted the Suit to be maintainable, which otherwise would not be maintainable questioning the Compromise Decree. 17 Mr. Engineer has thereafter referred to the decisions of the Supreme Court in support of his contention that the Plaintiff would have to set aside the documents which prevent the Plaintiff from exercising its right, title and interest in property. These decisions are under Article 59 of the Limitation Act. They are as under : i) Mohd. Noorul Hoda v. Bibi Raifunnisa, (1996) 7 SCC 767 at para 6; ii) Abdul Rahim v. Sk. Abdul Zabar, (2009) 6 SCC 160 at paragraphs 26 to 29; and iii) Raghwendra Sharan Singh v. Ram Prasanna Singh, (2020) 16 SCC 601 at paragraphs 7 and 8. 18 He has further relied upon the settled law that where possession can only be granted if a document is set aside, then Article 65 of the Limitation Act is not applicable and instead, Article 59 of the Limitation Act would be applicable and for which he has relied upon the decision of the Supreme Court in Mohd. Noorul Hoda (supra) and Rajah of Ramnad v. A.L.A.R.R.M. Arunachellam Chettiar, Madras LJR Vol.XXIV 592 (pages 599 and 615, 616). (AIR 1916 Madras 350). 19 He has also relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 14.02.2017 to the Chamber Summons No.1741 of 2016 preferred by Defendant Nos.10 to 12 in their Suit that there were sale transactions and that title of the Suit properties would pass to Defendant Nos.10 to 12 and the only grievance being that the entire consideration had not been received. 21 Mr. Lohia has further submitted that the Memorandum of Understanding executed between the Plaintiff and Defendant No.1 also makes it evident that the Plaintiff had for all practical purposes, effectively divested all his interest in the suit properties and only the acquisition/enjoyment of the rights by the Defendant No.1 was subject to the order of injunction granted by this Court in the Suit filed by Defendant Nos.10 to 12. 22 Mr. Lohia has submitted that this is a classic case where the Plaintiff by clever drafting has attempted to make out an illusory cause of action to bring the Suit within limitation. The Plaintiff has sought to contend that fraud was played upon the Plaintiff. He has placed reliance upon Section 19 of the Contract Act, 1872, which provides that a contract which is vitiated by fraud makes the contract voidable at the instance of the innocent party. Thus, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 25 Mr. Mayur Khandeparkar, learned Counsel on behalf of Defendant Nos.2, 5, 6 and 7 has made submissions. He has relied upon the facts as well as well settled principles of a Court dealing with an application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908. He has relied upon the decision of the Supreme Court in Raghwendra Sharan Singh v. Ram Prasanna Singh (dead) by Legal Representatives (2020) 16 SCC 601, in support of his submission that the Court can examine not only the plaint but also the documents annexed and referred to in the plaint for the purpose of ascertaining the genesis of dispute of and/or triggering point of right to sue/cause of action for the purpose of passing appropriate orders in an application filed for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure. He has submitted that the plaint as framed and filed is devoid of material particulars in context of allegation of fraud. In terms of Articles 58 and 59 of the Limitation Act, a Suit seeking declaration and/or cancellation of Deeds of Conveyance dated 31.12.2013 was required to be filed on or before three years from the date of execution t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by this Court in Suit No.359 of 1980, which was later transferred to the City Civil Court. Hence, the cause of action in the Suit being one for primary relief of possession and for relief of adjudgment that the Deeds of Conveyance are void ab initio and other ancillary reliefs based on title. 29 Mr. Kapadia has submitted that the Plaintiff is illiterate and can only read and write in his vernacular language i.e. Marathi. The Plaintiff at best, can only initial and/or write his name in English. This fact is supported by the Plaintiff and his family members having affixed their signatures only in Marathi to the documents and that the plaint is also affirmed by the Plaintiff in Marathi. 30 Mr. Kapadia has thereafter referred to the facts of the case and has made particular reference to the Memorandum of Understanding executed on 11.12.2008 between the Plaintiff, his family members and Original Defendant No.1 which was for a total consideration of Rs.13.51 crores and which was payable by post-dated cheques within 11 months and which was also handed over. He has submitted that cheques aggregating to Rs.5,95,03,212/- between 30.10.2013 to 30.10.2014 were issued by Defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint with the concerned police station on 05.06.2017. It is only upon noticing development activities on suit property since 2018 and the Plaintiff being stopped from entering the suit properties, that the Plaintiff was constrained to file the present suit seeking possession of suit properties which ware fraudulently taken away from him. 32 Mr. Kapadia has relied upon the decision of the Supreme Court in the State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460 wherein it has been held that a suit seeking declaration of a void document and seeking possession, would be governed by Article 65 of the Limitation Act since it is not necessary to claim declaration in respect of a void document. He has also placed reliance upon the substantive law applicable to the cause of action in the plaint on the principle of mistake of character and non est factum. These decisions are as under : 1) Foaster v. Mackinnon, (L.R.) 4 C.P. 704. 2) Jagardeo Singh v. Phuljari Anr., 1908 SCC OnLine AII 70. 3) Sanni Bibi v. Siddik Husain Munshi, (1918-19) 23 CWN 93. 4) Sarat Chandra Gupta v. Kanai Lal Chakrabarty Anr., (1921-22) 26 CWN 479. 5) Raja Singh Ors. v. Chaicho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer is void ab initio. 36 Mr. Kapadia has further made submissions on Article 65 of the Limitation Act which according to him is applicable as well as relied upon judgments thereon and Order VII Rule 11 of the Code of Civil Procedure as follows : 1) Sopanrao Anr. v. Syed Mehmood Ors., (2019) 7 SCC 76. 2) Salim D. Agboatwala Ors. v. Shamalji Oddhavji Thakkar Ors. 2021 SCC OnLine SC 735. 3) C Mohammad Yunus v. Syed Unnissa Ors., AIR 1961 SC 808. 4) Daya Singh Anr. v. Gurdev Singh (Dead) By Lrs. Ors. (2010) 2 SCC 194. 5) Chhotanben Anr. v. Kiritbhai Jalkrushnabhai Thakkar Ors. (2018) 6 SCC 422. 6) P.V. Guru Raj Reddy Anr. v. P. Neeradha Reddy Ors., (2015) 8 SCC 331. 7) Pankaja Anr. v. Yellappa (Dead) By Lrs. Ors., (2004) 6 SCC 415. 37 Mr. Kapadia has submitted that in view of the present suit being a suit for possession, Article 65 of Limitation Act provides for a period of limitation of 12 years from the date when possession of the land became adverse to the Plaintiff. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. He has placed reliance in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent. They have submitted that fraud with regard to the character of document covers cases where a person executed a document thinking that it would be one kind/type such as a power of attorney or a lease of some property, but finds that, in fact, the document was a sale deed or a gift. Therefore, the nature or type of document was completely different from what was intended. Whereas in the case of fraud with regard to contents of a document, these are cases where a person wanted to gift one property but discovers that, in fact, more properties have been gifted under the document, or where the consideration figure agreed upon is fraudulently altered or the purchaser of the property is someone else. They have submitted that it is settled law that if there is fraud with regard to the contents of a document , then the document is only voidable and the Plaintiff would have to sue for cancellation of those documents. It is only in the case of fraud with regard to character of a document that it would not be necessary to sue for cancellation of document as the document itself is invalid and void ab initio. They have submitted that this distinction is required to be kept in mind. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s misplaced as it does not draw a distinction between fraud of character and fraud of contents and is contrary to decision of the Supreme Court in Ningawwa v. Byrappa Shiddapa (supra) and Dularia Devi v. Jonardan Singh (supra) and in fact supports the Defendants as it states that if there is fraud as to the contents of the document, the document is not void ab initio. This judgment is also contrary to the law as laid down in the case of Abdul Rahim v. Abdul Zabar (supra) where it is held that even if a transaction is void or voidable, the party must sue for cancellation. Accordingly, the judgment in Jagardeo Singh (supra) is not good law and cannot be relied upon. 43 They have further submitted that the other decisions relied upon by the Plaintiff namely Sanni Bibi (supra); Appanna v. Venkatappa (supra); Naranjan Singh (supra), Sarat Chandra Gupta (supra) are all decisions which are with regard to fraud on character of the document where the Plaintiff thought he was executing a particular document, when actually he was executed an entirely different document. In Sanni Bibi (supra) the Plaintiff thought he was executing a deed for maintenance for a term of three years, when what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two of the plots to her husband. However, in the gift deed, all four plots were gifted by the wife to her husband. It was held by the Supreme Court that though the wife did not intend to gift away two out of four properties, there was no fraud with regard to the character of the documents, but it was merely fraud with regard to the contents of the documents and hence, the gift deed was voidable and accordingly, a suit would have to be filed within the time prescribed under Article 95 of the Limitation Act (which is now Article 59 of the Limitation Act). 45 In Dularia Devi (supra) the Plaintiff believed that she was executing a gift deed in favour of her daughter, but in fact, the property was sold. Relying upon the decision in Ningawwa (supra) the Supreme Court held that where there is fraud with regard to the character of the documents, the contract is void. The Supreme Court has reaffirmed that if the fraud is not on character, but only with regard to the contents, then it would only be voidable. The learned Counsel have submitted that the ratio of this judgment applies to the facts of the present case, as here there is no fraud with regard to the character of the documents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the injunction order did not operate against Defendant Nos.10 to 12 herein or their nominee. It has been clearly held by the Supreme Court in Thompson Press (supra) that where a sale deed is executed in breach of injunction issued by competent Court, there is no reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The learned Counsel for respective Defendants have contended that in fact the Conveyance Deeds in the present Suit were not executed in violation of the order of injunction and without prejudice to this contention, assuming that the Conveyance Deeds was executed in violation of the injunction order, the same would not be a void ab initio sale and would be valid subject to any directions which this Court may issue against the vendors. 48 The learned Counsel for the respective Defendants have also dealt with the Plaintiff s contention that since the Plaintiff is seeking possession of the suit properties, the period of limitation for filing the Suit is 12 years under Article 65 of the Code of Civil Procedure and hence the present Suit is not barred by the law of limitation. They have submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the Plaintiff in the present case merely by signing the deeds of Conveyance has not admitted to having executed the document as the Plaintiff was not aware of the contents of the document. 51 The learned Counsel appearing for the Defendants have distinguishing the decision of the Supreme Court in Veena Singh (supra) on the ground that the Supreme Court in that decision was considering a case where the Appellant has sought action to be taken by the Sub-Registrar for forgery alleged to have been committed by the 2 nd Respondent on the ground that the signature of the Appellant was forcibly taken on the sale deed thereby conveying the land in favour of the 2nd Respondent and having the sale deed registered. The SubRegistrar had by order declined to register the sale deed which was thereafter challenged and the order of the Sub-Registrar was set aside by the District Registrar. The Appellant had challenged the order of the District Registrar before the Allahabad High Court. Writ Petition was dismissed by the Allahabad High Court and the Appellant was directed to move the Civil Court for declaration that sale deed had been obtained by fraud and nullity. In Appeal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint. 55 It has further being held by the Supreme Court in Sree Surya Developers Promoters (supra) that the Plaintiff cannot be allowed to circumvent the provision by means of clever drafting so as to avoid mention of those circumstances, by which the Suit is barred by the law of limitation. In that case the Supreme Court considered that the Plaintiff had sought multiple reliefs and by clever drafting wanted to get his Suit maintainable which otherwise would not have been maintainable in questioning the compromise decree. The Plaint was accordingly rejected under Order VII Rule 11 (d) of the Code of Civil Procedure. The Supreme Court in Sree Surya Developers (supra) at paragraphs 32 and 33 held thus : 32. In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Co suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout consideration and possession of suit properties be restored in favour of the Plaintiff. Thereafter, relief has been sought for an order and decree that the Defendants found in possession of the suit properties be directed to handover possession of the suit properties to the Plaintiff. In addition compensation has been sought as well as mesne profit from the date of filing of the suit till the time of handing over of vacant, absolute and quiet possession of suit properties to the Plaintiff. It can be seen from the averments in the plaint, in particular paragraphs 27, 28, 29, 33 and 35 that the Plaintiff had challenged the impugned Conveyance Deeds on two main grounds one that the Plaintiff thought he was executing documents in furtherance of and for transferring his right, title and interest in favour of Defendant Nos.1 to 7 and thought that even Defendant Nos.8 to 12 are also transferring their rights in favour of Defendant Nos.1 to 7 simultaneously. The other ground of challenge to the Conveyance Deeds is that though Defendant Nos.10 to 12 approached the Plaintiff for settlement and agreed to pay consideration price for purchasing the suit properties, Defendant Nos.10 to 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Deeds of Conveyance on the ground that the Deeds of Conveyance are itself illegal and void ab initio. In my view these decisions are wholly inapplicable to the present case where there is no fraud with regard to the character of the document. 60 In the law laid down by the Courts including the Supreme Court, a clear distinction has been made as to the fraud with regard to the character of the documents from that of fraud with regard to the contents of the document . It is only in the case of fraud with regard to character of documents where the character of document is different from what was intended by the party that such document has been held to be null and void and not required to be set aside. 61 It is in fact clear from the documents annexed to the Plaint which include the Plaintiff s reply to the City Survey Officer who had issued notice under Section 150(2) of the Maharashtra Land Revenue Code, 1966 that there was no fraud with regard to the character of the documents. In the reply dated 29.08.2016 to the said notice issued by the City Survey Officer, the Plaintiff had objected to the proposed amendment in the record of rights on the basis that the Plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be applicable. At the latest the present suit should have been filed within a period of three years from such knowledge which would be at the latest three years from 14.02.2017 when the Plaintiff had filed the affidavit in reply to the Chamber Summons and the three years period expired on 15.02.2020. It is clear from the decisions relied upon by the Plaintiff, in particular Ningawwa (supra) and Dularia Devi (supra) that where there is no fraud with regard to character of the documents, but fraud with regard to contents of the documents, the documents are voidable and accordingly Suit will have to be filed within the time prescribed under Article 59 of the Limitation Act. It has been held by the Supreme Court in Ningawwa (supra) at paragraphs 4 and 5 as under : 4. It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid , so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. 5. The legal position will be different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds were executed in violation of an injunction order, it has been held in Thompson Press (India) Ltd. (supra) that a breach of any injunction order would not render the transfer by way of absolute sale or otherwise ineffective. In this context it is necessary to set out paragraph 53 of the said decision which is as under : 53. There is, therefore, little room for any doubt that the transfer of the suit property pendente lite is not void ab initio and that the purchaser of any such property takes the bargain subject to the rights of the plaintiff in the pending suit. Although the above decisions do not deal with a fact situation where the sale deed is executed in breach of an injunction issued a competent court, we do not see any reason why the breach of any such injunction should render the transfer whether by way of an absolute sale or otherwise ineffective. The party committing the breach may doubtless incur the liability to be punished for the breach committed by it but the sale by itself may remain valid as between the parties to the transaction subject only to any directions which the competent court may issue in the suit against the vendor. (emphasis sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Defendants are in my view are correct in their submission that in the present case the issue raised by the Plaintiff in the present Suit is only as to fraud with regard to the contents of the document which in light of the settled law would require the Plaintiff to seek appropriate relief for setting aside and/or cancelling the document which in the present case are the Deeds of Conveyance, and that too within the prescribed period of three years from their learning of such alleged fraud with regard to the contents of the document. Further, it is well settled that fraud with regard to the contents of the document only make a document voidable and would have to be avoided by the person seeking to do the same. In my view, the decision of the Supreme Court in Veena Singh (supra) would not support the Plaintiff s case. 68 Thus, in my considered view the Suit filed by the Plaintiff is barred by the law of limitation as it is clear from the averments in the Plaint read with the documents annexed thereto that the Plaintiff had knowledge about the alleged fraud by 22.08.2016 and at the very latest by 14.02.2017. That being so, the Suit for cancellation would have to be filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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