SYED ABDUL HALEEM Vs. RAJARATINAM CONSTRUCTION PVT. LTD

JUDGEMENT

(1.) This civil revision petition is directed as against the order dtd. 16/8/2017 passed in IA.No.2464 of 2017 in OS.No.5541 of 2016 by the XII Assistant Judge, City Civil Court, Chennai thereby dismissing the petition for rejection of plaint.

(2.) The respondent is the plaintiff and the petitioners are the defendants. The respondent filed suit for recovery of money towards the payment of service tax for the apartment constructed by the respondent for the petitioners together with interest at the rate of 18% per annum. While pending the suit, the petitioners filed petition for rejection of plaint on the ground that the suit is barred by limitation and no cause of action for the respondent to file the suit, since no privity of contract between the petitioners and the respondent herein with regards to alleged payment of service tax in question.

(3.) Mr.L.Dhamodaran, the learned counsel for the petitioners would submit that the petitioners had purchased a flat from the respondent's Principal M/s.Vardhaman Construction and Investments on 7/5/2008. After a period of eight years from the date of purchase, the respondent filed suit claiming service tax. Even according to the respondent, they paid service tax on 30/3/2010, whereas the suit has been laid in the year 2016. Therefore it is barred by limitation. Further, there is absolutely no cause of action for the respondent to file the present suit as against the petitioners. There is no privity of contract between the petitioners and the respondent. Admittedly, the respondent is the power of attorney of M/s.Vardhaman Construction and Investments. By the memorandum of agreement dtd. 7/5/2008, the petitioners entered into an agreement to purchase a flat from M/s.Vardhaman Construction and Investments represented by the respondent herein. While being so, on personal capacity, the respondent filed the present suit and as such no cause of action arose for the respondent to lay suit as against the petitioners. 3.1 He further submitted that even assuming that the respondent paid service tax for the flats promoted by them, they made payment on 30/3/2010 whereas they filed suit on 3/4/2016. Therefore, the suit is barred by limitation and directly hit under Article 54 of Limitation Act. Respondent stated that period of 12 years is available for them under Article 62 of Limitation Act to save limitation. Article 62 of the Limitation Act relates to the suit on mortgage. Whereas the present suit is available for recovery of money. Therefore, the said provision is nothing to do with the present suit and only to save limitation, they have wrongly noted the provision. Therefore, the plaint is liable to be rejected. In support of his contention, he relied upon the following judgments.