RAM SHYAM TRADERS Vs. KAMALABEN RAMANBHAI PATEL

JUDGEMENT

(1.) The present Civil Revision Application is filed impugning the order dtd. 16/10/2020 passed by the City Civil Court, Ahmedabad below application Exh.52 in Civil Suit No.1784 of 2013 whereby the learned Trial Court has rejected the application preferred by the applicant herein under Order-VII Rule-11 of the Code of Civil Procedure, 1908 ["CPC" for short] for rejection of the plaint on the ground of limitation.

(2.) The brief facts in the present case are that, original plaintiffs - respondent Nos. 1 to 4 herein have filed the Civil Suit No.1784 of 2013 in the City Civil Court, Ahmedabad pertaining to land bearing Survey No.557 paiki (West) admeasuring 3 Acres and Survey No.556 admeasuring 39 Gunthas at Ishanpur, Ahmedabad. That one Shri Ramanbhai Nathabhai Patel was the actual owner and possessor of the subject lands and the said Shri Ramanbhai Nathabhai Patel along with the respondent Nos.7 and 8 were the Directors in the respondent No.5 company. That the subject land was given on rent to the respondent No.5 company in the year 1984 for the period of 11 months and thereafter to the respondent No.6 company in the year 1985. That the respondent Nos.5 and 6 companies obtained financial assistance from Nutan Nagrik Cooperative Bank ["the Bank" for short]. That so as to assist in the availing of the financial loan, late Shri Ramanbhai Nathabhai Patel mortgaged the subject lands in favour of the Bank by way of equitable mortgage and deposited the title deeds of the subject lands to the Bank. It is alleged by the respondent Nos.1 to 4 - original plaintiffs that late Shri Ramanbhai Nathabhai Patel as well as the respondent No.2 herein resigned as Directors in the respondent Nos.5 and 6 companies and in view of their resignations, the mortgage of the subject land created in favour of the Bank came to an end. It is further their case that the Bank no longer possesses any right as the mortgagee in respect of the subject land. It is further their case that when the respondent Nos.5 and 6 companies failed to repay the loan availed by them, the Bank filed two suits against the respondent companies and their Directors before the Board of Nominees seeking recovery of the total outstanding dues with interest. That in the said recovery suits, Shri Ramanbhai Nathabhai Patel as well as the respondent No.2 were joined as party defendants. That the subject land was claimed as a mortgage property. Since they have persons dealing inter-se between the applicant and the respondents herein, it is the case of the applicant herein that it offered to pay the total dues in respect of the financial assistance availed by the respondent Nos.5 and 6 companies. It is their case that during the pendency of the recovery suits, the applicant herein has paid the outstanding due amount in favour of the Bank. It is further alleged that in view of the aforesaid payment made by the applicant, the mortgagee and mortgagor relationship between late Shri Ramanbhai Nathabhai Patel and the Bank came to an end and the subject lands become mortgage free. That in view of the payment of the outstanding dues of the respondent Nos.5 and 6 companies, the Bank executed two transfer of mortgage deeds in favour of the applicant herein on 27/3/1992 transferring mortgage rights in respect of the subject lands in the favour of the applicant and consequently, the applicant was added as a plaintiff No.2 in the said recovery suits. That late Shri Ramanbhai Nathabhai Patel passed away on 17/1/2012. That after the demise of Shri Ramanbhai Nathabhai Patel, the respondent Nos.1 to 4 herein filed a Civil Suit No.1784 of 2013 in the City Civil Court, Ahmedabad praying for a declaration that the mortgage rights of the applicant herein have come to an end and redemption of mortgage was prayed for. That the applicant herein has thereafter filed application below Exh.52 under Order-VII Rule-11(d) of CPC praying to pass necessary orders that the suit is barred by law of limitation. That the original plaintiffs - respondent Nos.1 to 4 herein filed their reply. By the impugned order dtd. 16/10/2020, the learned Trial Court has rejected the application below Exh.52 holding that since the issue of limitation was a mixed question of law and facts, a trial was necessary in the present case.

(3.) Learned counsel for the applicant submitted that the applicant has preferred the application at Exh.52 under the provisions of Order-VII Rule-11 of CPC on the ground that the suit is barred by principles of foreclosure and redemption and the suit is barred by law of limitation. He submits that it is the duty of the plaintiffs to make specific pleadings and averments in the plaint on the issue of limitation. It is further submitted that the Court is bound to exercise jurisdiction under Order-VII Rule- 11 of CPC to reject the plaint in absence of specific pleadings. It is submitted that in the entire plaint, there is no pleading that the suit is not barred by limitation as prescribed in law. It is further evident from the pleadings that the alleged cause for which the suit is filed was hopelessly time barred at the time of filing of the suit. Further, that there is absolutely no averment as to when the applicant herein came in possession of the subject properties and further when the original plaintiffs - respondent Nos.1 to 4 herein acquired the knowledge of the same. It is further argued that the present suit would be governed by the provisions of Article 61(b) of the Indian Limitation Act, 1963 [" Limitation Act " for short]. A perusal of the plaint shows that there is no averment as to when such possession was transferred in favour of the applicant herein. It is further submitted that a meaningful comprehensive reading of the plaint shows that even as per the say of the original plaintiffs, the possession of the subject lands was with the applicant herein since 20 years prior to 2013. Further, it was the duty of the original plaintiffs - respondent Nos.1 to 4 herein to make a specific averment with respect to possession as well as limitation. It is further argued by learned advocate that the only relief sought for in the plaint is declaration that the applicant herein has not derived any right as a mortgagee and by declaring the same, further declaration is sought that the subject properties are free from mortgage. However, no prayer for possession is sought under the prayer clause. It is submitted that the relief sought by the original plaintiffs - respondent Nos.1 to 4 herein does not fall under the purview of Article 56 or Article 57 of the Limitation Act . Thus, as a consequence, the same falls within the purview of Article 58 of the Limitation Act . The period of limitation as provided under Article 58 of the Limitation Act is of 3 years from the date when the right to sue has accrued. Hence, in the present case, as per the pleadings, the right to sue first accrued on 31/3/1990 and therefore, the limitation period of 3 years would expire on 31/3/1993. That the present suit was filed on 9/7/2013 i.e. after a gross inordinate delay of approximately 20 years. Thus, the suit of the original plaintiffs - respondent Nos.1 to 4 herein is hopelessly barred by limitation and the plaint was required to be rejected. It is further submitted that the original plaintiffs - respondent Nos.1 to 4 herein have sought relief of redemption of mortgage with possession. The provisions of Sec. 60 and Sec. 67 of the Transfer of Property Act are material in respect of such prayer. It is the case of the applicant that once a decree for foreclosure has been passed, the respondent Nos.1 to 4 herein are debarred from bringing such action. That Sec. 60 of the Transfer of Properties Act mandates that the payment of outstanding dues is a prerequisite for seeking decree or relief of redemption. In the present case, the pleadings as well as the prayers reveal that the respondent Nos.1 to 4 are seeking a decree i.e. relief of redemption without offering any payment of outstanding dues in favour of the applicant herein. It is further submitted that the respondent Nos.1 to 4 have not pleaded in the suit that Shri Ramanbhai Nathabhai Patel was also not aware of the possession of the subject properties being with the applicant herein. In view thereof, the relief as sought for by the respondent Nos.1 to 4 would fall within the purview of Article 61(b) of the Limitation Act . The said Article 61(b) provides for limitation period of 12 years from the date when the transfer becomes known to the plaintiffs. In the present case, the transfer was effected on 27/3/1992 and thus, the limitation period of 12 years has expired on 27/3/2004 and the present suit is filed on 9/7/2013, i.e. after gross delay of 9 years. In view thereof, it was submitted that the suit filed by the original plaintiffs - respondent Nos.1 to 4 is hopelessly barred by limitation and the application below Exh.52 under Order-VII Rule-11 of CPC was required to be allowed and the plaint was required to be rejected.