SURINDER SETHI Vs. DEEPAK KAPOOR

JUDGEMENT

(1.) The plaintiff's application under Order XXXIX, Rules 1 and 2 and Section 151, Civil Procedure Code is to be decided. During the hearing of the application arguments on the maintainability of the suit were also addressed at length.

(2.) The plaintiff has filed the present suit for the specific performance and possession of property, L.I.G. Flat No. H-146, Ashok Vihar, New Delhi. It is alleged that an agreement-cum-receipt was executed between the parties on 26.3.1996, in which the sale consideration was fixed at Rs. 6,60,000.00 A sum of Rs. 30,000.00 was paid in cash and the balance sale consideration was to be paid within two months. The defendant has denied that any such agreement had taken place. It is stated that his signatures was obtained on some blank papers and some printed cyclostyled proformas which were also blank. The defendant has signed these documents in good faith since the plaintiff was known to his family members. Reliance was also been placed on the existence of two documents in which one states the price as Rs. 6,60,000.00 whereas the other mentions only Rs. 6,00,000.00 Attention has also been drawn to the fact that the agreement-cum-receipt postulates that in case the defendant failed to get the papers executed then he would be liable to pay double the earnest money to the purchaser or his nominee. It is submitted that even if this disputed document is perused, it would disclose that the plaintiff was quite aware of his rights and has, therefore, written in hand that he would also have the option of specific performance of the agreement.

(3.) Normally, since only a prima facie case has to be made out at the stage of disposal of an application under Order XXXIX, Rules 1 and 2, the averments of the adversaries would have to await the final decision in the case after the trial of the suit. The plaintiff would, therefore, normally be entitled to interlocutory relief. However, three interesting questions of law have been arisen as a result of which detailed arguments have even been addressed on the maintainability of the suit. The first contention raised by Mr. Sherawat, learned Counsel for the defendant is that the suit is barred by limitation. In his submission, it is so far the reason that a notice dated 7.10.1996 had been issued by the plaintiff to the defendant in which it was specifically stated that the plaintiff proposed to file a suit for specific performance in the agreement. The computation of period of limitation would, therefore, commence from this date since admittedly acceptance of the notice was refused and/or was not complied with by the defendant. Learned Counsel for the defendant, however, contends that in view of Article 54 of the Limitation Act, the suit is within time. Mr. Lonial, learned Counsel further contends that a refusal of the notice would not have the effect of the creation of cause of action. Article 54 reads as follows: