AJIT KISHINCHAND SHIVANI Vs. PAWAN CHANDULAL KHEMANI

JUDGEMENT

(1.) First Appeal is at the instance of the original Plaintiff challenging the order dtd. 11/3/2013 passed by the City Civil Court at Mumbai in Short Cause Suit No.4359 of 2011 (High Court Suit No.2312 of 2011), answering the preliminary issue of limitation framed under Sec. 9A of the Code of Civil Procedure, 1908 (for short, " CPC ") against the Plaintiff, resulting in dismissal of the suit.

(2.) Suit No.4359 of 2011 was filed for declaration that the agreement for sale registered on 5/10/1999 pertaining to the suit property is without consideration and therefore, there is no transfer of right, title and interest in favour of the Defendant and the same be declared as null and void and for recovery of possession. It was pleaded that the Plaintiff was the owner of the suit premises alongwith his mother. The Defendant is the Plaintiff's cousin and desired to purchase the suit premises and they entered into registered Agreement dtd. 5/10/1999 for purchase of the suit premises for consideration of Rs.15,00,000.00. However the Defendant did not pay the purchase consideration. After the registration, the Plaintiff left India and the Plaintiff's mother continued to stay in the suit premises till her death on 14 th June, 2003. The Society fraudulently transferred the suit flat in name of the Defendant. The Defendant has fraudulently opened bank accounts in name of the Plaintiff and his mother and operated the same. The cause of action is pleaded to have arisen in the year 2004, when the Plaintiff acquired knowledge that the Defendant trespassed in the suit flat.

(3.) The Defendant filed Notice of Motion No.2000 of 2012 in Suit No.2312 of 2011, under Order VII Rule 11(d) of the CPC seeking rejection of the suit as being barred by limitation. The motion came to be resisted by the Plaintiff by filing his affidavit-in-reply dtd. 20/11/2012 contending that the prayer clause (a) of the plaint seeks recovery of possession and the limitation is of 12 years under Sec. 66 of Limitation Act.