SRI I G PRASHANTH v. SRI UMESH MAHABALE SHETTI

(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. S. RUPESH KUMAR, ADVOCATE) …PETITIONERS AND:

1. SRI UMESH MAHABALE SHETTI S/O SRI. BASAVARAJ, AGED ABOUT 56 YEARS, R/AT NO. 91, BASAVAKAMALA 2ND CROSS, 2ND STAGE, NAGARBHAVAI BANGALORE-560 072.

2. SRI. SHASHIKUMAR M S/O LATE MARIYAPPA, AGED ABOUT 56 YEARS, - 2 - NC: 2024:KHC:44475 CRP No. 728 of 2023 R/AT NO. 797, 10TH MAIN, 4TH BLOCK , JAYANAGAR, BANGALORE-560 011.

3. SRI. NARESH KUMAR S/O N SHAMANNA AGED ABOUT 48 YEARS, R/AT NO.44, 6TH MAIN, 5TH BLOCK, JAYANAGAR, BANGALORE-560 041.

4. SRI. LAVU SRINIVASA RAO S/O SRI. LAVU MADHUSUDHAN RAO, AGED ABOUT 52 YEARS, R/AT NO. 59-A-17/1-6, PLOT NO. 15, NALLURU SEETHARAMAIAH NAGAR (NSR) TAKAALUVA ROAD, PATAMATA, VIJAYAWADA-520 008.

5. MRS. VIJAYA GOPALA GOWDA, W/O LATE I N GOPALA GOWDA, AGED ABOUT 78 YEARS, R/AT KALLUDODDI KAVALUK INDAVARA VILLAGE, UPPALLI INDAVARA POST-577 101 CHIKKAMAGALURU TALUK AND DISTRICT.

6. SRI. I G PRITHVI S/O LATE I N GOPAL GOWDA AGED ABOUT 46 YEARS, R/AT KALLUDODDI KAVALU INDAVARA VILLAGE, UPPAHALLI, INDAVARA POST-577 101 CHIKKAMAGALURU. (BY SRI. D.R. RAVISHANKAR, SENIOR COUNSEL FOR SRI. H.N. NARENDRA DEV, ADVOCATE FOR R1 & R2; SRI. G. KRISHNA MURTHY, SENIOR COUNSEL FOR SRI. AJAY U PATIL, ADVOCATE FOR R3) …RESPONDENTS THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 26.10.2023 PASSED ON I.A.NO.V IN OS.NO.84/2021 ON THE FILE OF THE PRINCIPAL SENIOR - 3 - NC: 2024:KHC:44475 CRP No. 728 of 2023 CIVIL JUDGE AND CJM, CHIKKAMAGALURU, DISMISSING THE I.A.NO.V FILED UNDER ORDER VII RULE 11 (a) AND (d) R/W SEC.151 OF CPC REJECTION OF PLAINT AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER The defendants No. 1 and 2 have approached this Court challenging the order passed by the Trial Court, wherein the application filed under Order VII Rule 11(a) and (d) of the Code of Civil Procedure (CPC) was rejected.

2. The respondents No. 1 to 4 had filed a suit in O.S. No.84/2021 seeking a directive for the defendants to jointly or severally execute and register the sale deeds, thereby conveying the suit schedule properties, which comprise residential sites detailed in Schedules ‘A’ and ‘B’. This directive was sought for the purpose of specifically performing the obligations set out in the agreements of sale dated 24.09.2012, executed by defendant No. 1 with the plaintiffs and by the late Mr. I.N. Gopala Gowda with the plaintiffs, as well as the supplementary agreements dated

26.09.2012. The plaintiffs offered to pay the cumulative balance of the sale consideration amounting to Rs.17,55,75,200/- or, alternatively, sought a refund of the advance consideration paid under these agreements. - 4 - NC: 2024:KHC:44475 CRP No. 728 of 2023

3. The defendants No. 1 and 2 entered an appearance and subsequently filed an application to reject the plaint, arguing that the suit for specific performance was filed beyond the statutory period of three years from the date of cause of action, as prescribed under Article 54 of the Limitation Act, 1963. Accordingly, they contended that the suit was clearly time-barred. However, the Trial Court dismissed the application, prompting the defendants to file the present petition.

4. Sri Udaya Holla, learned senior counsel representing the petitioners, argued that under the agreements of sale and the supplementary agreements, the plaintiffs were required to pay the balance sale consideration on or before 31.03.2013. Since the plaintiffs failed to make this payment within the stipulated period, any cause of action to file the suit arose immediately thereafter, rendering the suit filed in 2021 clearly barred by limitation under Article 54 of the Limitation Act. The learned senior counsel placed reliance on the following decisions to support his contentions:

3. T. Arivandandam v. T.V. Satyapal and Another, (1977) 4 SCC 467. The State of Karnataka and Another v. Shri Ranganatha Reddy and Another, (1977) 4 SCC 471. Hardesh Ores (P) Ltd. v. Hede and Company, (2007) 5 SCC 614.

4. Mahboob Pasha v. Syed Zaheeruddin, ILR 1987 KAR 2830. - 5 - NC: 2024:KHC:44475 CRP No. 728 of 2023

5. Alagammal and Others v. Ganesan and Another, (2024) 3 SCC 232.

5. In response, Sri G. Krishna Murthy, learned senior counsel for respondent No. 3, and Sri D.R. Ravishankar, learned senior counsel for respondents No. 1 and 2, argued that the sale transactions were to be completed on or before 31.03.2013 or upon the issuance of a possession certificate by the competent authority, whichever was later. Since the possession certificate was issued only in 2019, the plaintiffs’ suit filed in 2021 was well within the limitation period. Therefore, they contended that the Trial Court rightly held that the question of limitation was a mixed question of law and fact and that the plaint could not be rejected under Order VII Rule 11(a) and (d) of CPC at this stage.

6. Upon considering the submissions made by learned counsel for both parties and perusing the plaint and agreements of sale, the following observations are noted:

7. The initial agreements of sale executed on 24.09.2012 specified that the plaintiffs agreed to purchase plots to be developed by the Chikkamagaluru Urban Development Authority for a total consideration of Rs.20,33,55,200/- for Schedule ‘A’ property and Rs.7,77,20,000/- for Schedule ‘B’ property. Subsequent supplementary agreements dated 26.09.2012 modified the timeline for the payment of the sale consideration, requiring the plaintiffs to make the payment by 31.03.2013. However, the completion of the sale transaction was contingent upon either the - 6 - NC: 2024:KHC:44475 CRP No. 728 of 2023 stipulated date or the issuance of a possession certificate by the competent authority, whichever was later.

8. The Trial Court, upon considering that the possession certificate was issued in 2019, correctly held that the question of limitation involved mixed issues of law and fact, which precluded the rejection of the plaint at this preliminary stage. Consequently, there appears to be no illegality in the impugned order passed by the Trial Court.

9. Accordingly, the petition stands dismissed. All contentions of the parties, including the issue of limitation, are kept open. The Trial Court is directed to conclude the proceedings at the earliest opportunity. Sd/- (HEMANT CHANDANGOUDAR) JUDGE HR