KANAYALAL MADHAVJI THAKKAR Vs. SHREE PADMANABH BUILDERS

JUDGEMENT

(1.) This appeal arises out of an order of a Learned Single Judge dated 24th November, 2006 by which a Motion for the rejection of a plaint under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 was made absolute. The motion proceeded on the foundation that the claim of the Plaintiff to the counter claim (the original Defendant to the Suit) was ex-facie barred by limitation.

(2.) On 27th March, 2000, Shri. Padmanabh Builders (the original Plaintiff) instituted a suit against Kanayalal Madhavji Thakkar (the original Defendant) inter alia seeking a declaration that the Defendant does not have any right, title or interest in respect of the additional F.S.I, that may be available in respect of the suit properties in excess of 2455 sq.ft. already consumed by the Defendant under an agreement dated 1 st October, 1989 and that the Defendant does not have any right to sell or enter into any agreement for sale of units beyond 2455 sq.ft. granted under the aforesaid agreement. Injunctive relief was sought against the Defendant from carrying out any further construction and from entering into agreements for sale. The case of the Plaintiff was that the agreement dated 1st October, 1989 was terminated by a letter dated 7th February, 2000. By a further letter dated 24th February 2000, the Defendant was informed that in view of the circumstance that the Defendant had unauthorisedly consumed F.S.I, in excess of what was authorised under the agreement, the Plaintiff was entitled to terminate the agreement and that in any event, both the agreement and the Power of Attorney granted to the Defendant had automatically come to an end upon the completion of the construction by consuming a quantified F.S.I, of 2455 sq.ft.

(3.) A counter claim was lodged by the Defendant to the suit on 9th August, 2004. The Motion which has been made absolute by the Learned Single Judge is for the rejection of the counter claim on the ground that it is barred by limitation. Hence, for convenience of reference, it would be appropriate to refer to the parties to the counter claim as the Plaintiff to the counter claim and the Defendant to the counter claim. The relief that has been sought by the Plaintiff to the counter claim is (i)A declaration that the Plaintiff is entitled to all rights, title and interest emanating from the development agreement dated 1st October 1989 and that the Power of Attorney executed by the Defendant to the counter claim continued to be subsisting and binding; (ii) A decree for specific performance to transfer all rights, title and interest in the suit property; and (iii) A declaration that the Defendant to the counter claim has no right or interest in the suit property. In paragraph 17 of the counter claim, the Plaintiff stated that in 1998-99 when he was in the process of carrying out further development in the suit property, one of the newly inducted partners of the Defendant tried to cause obstruction, taking advantage of the fact that the conveyance and Power of Attorney were unsigned documents. The counter claim adverts to the suit instituted in this Court and to the circumstance that an application for interim relief has been made in the suit. The counter claim contained a statement that by a notice dated 23rd June, 2004, the Defendant in collusion with the Co-operative Society tried to terminate the Power of Attorney and wanted to further develop the property with the balance loadable FSI. According to the Plaintiff, it appears that Defendants are trying to take control of the property by giving a notice dated 23rd June, 2004. In paragraph 26 of the counter claim, it has been averred that the cause of action for filing a counter claim is not barred by the law of limitation and it was lodged along with the Written Statement and after issuing a legal notice dated 27th July, 2004.