The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 289 OF 2024 Urbasi Sethi and others Petitioners Mr. Bibekananda Bhuyan, Advocate …. Natha Barik Opp. Parties Mr. Narayan Prasad Parija, Advocate …. -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 09.07.2024 5. 1. This matter is taken up through hybrid mode. 2. The Petitioners in this CMP seek to assail the order dated 20th January, 2024 (Annexure-6) passed by learned 1st Additional Senior Civil Judge, Cuttack in C.S. No. 341 of 2019, whereby an application for amendment of the plaint has been allowed. 3. Mr. Bhuyan, learned counsel submits that the Defendants are Petitioners in this CMP. The Plaintiff-Opposite Party filed the suit for a declaration that the sale deed obtained by the Defendant No.1 is fraudulent, void and not binding on him. He also prayed for a decree of permanent injunction to restrain Defendant No.1 from coming over the suit property. A decree for recovery of possession of the suit property from Defendant No.1 is also sought for. During pendency of the suit, an application for amendment was filed to incorporate certain new facts and prayer in the plaint. He further submits that Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jul-2024 15:34:29 proposed prayer no.16(f) is barred by time and proposed prayer no.16(h) being a consequential to the prayer of 16(f) should not have been allowed to be introduced. The Petitioners confine Page 1 of 5 their challenge to the amendment of the plaint in respect of aforesaid two prayers only. The same are as follows: “16(f) If it has been held transfer is genuine and amount has been paid to defendant No.3 on behalf of plaintiff in that event alternatively a decree be passed directing defendant No.3 the consideration money which she received and to pay along with bank interest in favour of plaintiff. to pay xxx xxx xxx 16(h) Let defendant No.3 may permanently be restrained to withdraw the money from S.B. Account No.05800110019740 of UCO Bank, Trisulia.” 3.1 It is his submission that in view of Article 24 read with Article 53 of the Limitation Act, 1963, a money claim can only be made within a period of three years from the date when it becomes due. Admittedly, the transaction in question was made on 25th June, 2016 and the petition for amendment to introduce the prayer nos. 16(f) and 16(h) was made on 3rd November, 2021. Thus, in view of the provision under Article 24 read with Article 53 of the Limitation Act, 1963, a time barred claim cannot be allowed to be incorporated by way of amendment in view of the ratio decided in the case of Life Insurance Corporation of India –v- Sanjeev Builders Pvt. Limited and another, reported in 2022 SCC Online SC 1128. 4. Mr. Parija, learned counsel for Opposite Party vehemently objects to the same and submits that the date of knowledge is relevant for seeking a relief. He refers to Article 58 of the Limitation Act and submits that time stipulated to file a suit for declaration is three years from the date when the right to sue first accrues. Article 58 of the Limitation Act reads as under: “58 To obtain any other declaration. Three years When the right to sue first accrues. Page 2 of 5 Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jul-2024 15:34:29 4.1 It is his submission that the transaction in question became known to the Plaintiff on 21st January, 2019 when he obtained certified copy of the sale deed. Thus, amendments sought for at prayer nos. 16(f) and 16(h) are not time barred. He also relies upon the decision in the case of Ram Prakash Gupta –v- Rajiv Kumar Gupta and others, reported in 2007 (7) Supreme 188, wherein it is held that the date of knowledge of the Plaintiff is relevant to reckon the period of limitation for filing a suit for declaration. He submits that the money claim being a consequential relief to the declaration, the same is not time barred as alleged by Mr. Bhuyan, learned counsel for the Petitioners. He, therefore, submits that the CMP being devoid of any merit stands dismissed. 5. Taking note of the submissions made by learned counsel for the parties, this Court finds that Mr. Bhuyan, learned counsel for the Petitioners confines his prayer with regard to introduction of the relief “16(f) and 16(h)” to the plaint by way of amendment. It is alleged by the Plaintiff that he had no knowledge of deposit of part consideration in the account of Defendant No.3 on 25th June, 2016. But, the said transaction is reflected in the sale deed itself. Thus, transaction was within the knowledge of the Plaintiff before filing of the suit. He also submits that the plea that it came to the knowledge when the Plaintiff obtained certified copy of the sale deed, is a myth. 6. On assessment of the materials available on record, it Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jul-2024 15:34:29 appears that the transaction in question was reflected in the sale deed executed by the Plaintiff, which was sought to be declared as null and void in the suit. Thus, the Plaintiff had knowledge of such transaction before filing of the suit. The plea taken by Mr. Page 3 of 5 Parija, learned counsel for Opposite Party that he came to know about the transaction only when the Plaintiff obtained certified copy of the sale deed, cannot, therefore, be accepted. Articles 24 and 53 of the Limitation Act read as under: “24 For money payable by the defendant to the plaintiff for money received by the defendant, for the plaintiff's use. Three years When the money is received. 53 By a vendor of immovable property for personal payment of unpaid purchase money. Three years The time fixed for completing the sale, or (where the title is accepted after the time fixed for completion) the date of the acceptance.” 7. From the above, it is apparent that a money claim can only be made within a period of three years from the date of receipt of money. It is the case of Defendants that part of the consideration amount was received by Defendant No.3 on the instruction of the Plaintiff and subsequently, the same was received by the Plaintiff. The same is, of course, the matter of trial and this Court does not want to express any opinion on the same. But the fact remains that a money claim for recovery of the consideration amount can only be made within a period of three years from the date of receipt of money. In the instant case, transaction is alleged to have taken place in the year, 2016, which is also reflected in the sale deed itself. The proposed amendment to the relief at paragraph-16(f) is clearly time barred. Further, the proposed amendment to the relief at paragraph-16(h) being a consequential relief of paragraph-16(f) is also not maintainable. Signature Not Verified Digitally Signed 8. Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jul-2024 15:34:29 In that view of the matter, this Court modifies the impugned order to the extent that save and except prayer nos. 16(f) and 16(h) of the schedule of amendment, the petition for Page 4 of 5 amendment filed by Opposite Parties is allowed. Since the suit is of the year, 2019, learned trial Court should proceed with the matter keeping in mind the provision under Order XVII Rule 1 C.P.C. after commencement of trial. 9. With the aforesaid observation and direction, the CMP is disposed of. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jul-2024 15:34:29 Page 5 of 5