N.K. Paliwal, Advocate vs Special Judge And Ors.

on 26 May, 2005

Uttaranchal High Court

N.K. Paliwal, Advocate vs Special Judge And Ors. on 26 May, 2005
Equivalent citations: AIR 2005 Utr 72
Author: B Kandpal
Bench: B Kandpal
ORDER B.C. Kandpal, J.

1. By way of this writ petition the petitioner has prayed for certiorari quashing the order dated
31-5-1989 passed by in Civil Revision No. 319 of 186 Adarsh Colonizers v. Sri N.K. Paliwal and Ors. by
the Special Judge. Saharanpur (now District Haridwar).

2. Brief facts giving rise to this petition are that the petitioner Sri N. K. Paliwal filed a suit for specific
performance against the defendants/respondents No. 3 to 5 on the ground that the
defendants/respondent No. 3 is a firm and rest of the defendants/respondents are its partner.

3. As per the plaint, the defendants/respondents purchased a land at Roorkee Road in order to
establish a colony. The plaintiff/petitioner also agreed to purchase a plot and paid an amount of Rs.
500/- as advance on 9-7-1962. Thereafter, the plain-tiff/petitioner also paid the amount in instalment
and the agents of the defendants/respondents handed over the possession of the plot in the
plaintiff/petitioner.

4. The plaint further reveals that the petitioner, thereafter had always been willing and ready to
perform the part of this contract, but there was some dispute in the partnership of the
defendants/respondents, hence they close their office at. Haridwar and the sale deed could not be
executed.

5. The plaintiffs/petitioner, thereafter enquired about the whereabouts of defendants/respondents but

he could not trace out the defendants/respondents. After getting the trace of the defendant/respondent
firm and its partners a legal notice was given to them on 21-2-1983 stating therein to remain present in
the office of Sub-Registrar, Haridwar for executing of the sale deed of the aforesaid plot on 4-3-1983. It
further reveals from the petition that on the aforesaid date i.e. 4-3-1983, the petitioner remained
present in the office till evening but none turned up on behalf of the defendants/ respondents or its
partners to execute the sale deed. Hence, the petitioner was compelled to file the civil suit No. 34/1983
on 15-3-1983 against the defendant/respondent and its firm.

6. The defendants/respondents filed their written statement before the trial Court who after having
perused the pleadings adduced by both the parties was pleased to frame the relevant issues. The trial
Court framed the issue No. 3 with regard to the questions that the suit is barred by the period of
limitation.

7. The trial court decided that issue in favour of the plaintiff/petitioner by observing that the suit is
within time.

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 N.K. Paliwal, Advocate vs Special Judge And Ors. on 26 May, 2005

8. The trial Court also famed issue No. 4 as to whether the Court has no Jurisdiction to try the suit. The
trial Court also decided this issue in favour of the plaintiff/petitioner by observing that the trial Court
has jurisdiction to decide the suit.

9. The trial Court also framed an issue No. 6 as to whether the receipt in question by which the plot was
intended to be purchased was issued through Mulakh Raj Gulati hence Mulakh Raj Gulathi was a
necessary party. The trial Court also decided this issue in favour of the plaintiff/petitioner by observing
that Mulakh Raj Gulathi is not a necessary party and the suit cannot be said to be bad by non-joinder.

10. Feeling aggrieved by the aforesaid impugned order dated 13-8-1986 passed by the trial Court, a
revision was preferred by the defendant/respondent and the revisional Court i.e. respondent No. 1
partly allowed the revision vide judgment and order dated 3-5-1989.

11. The revisional Court dismissed the suit No. 34 of 1984 being barred by limitation. At the same time
learned revisional Court also held that the Court at Saharanpur (now District Haridwar) had no
Jurisdiction to try the suit. The learned revisional Court by way of impugned judgment and order
confirmed the finding of the trial Court that the suit cannot be said to be bad on account of non joinder.

12. Feeling aggrieved by the aforesaid impugned judgment and order dated 3-5-1989 the
plaintiff/petitioner has filed the present petition before this Court.

13. I have heard the learned Counsel for the parties and perused the record.

14. Learned Counsel for (he petitioner has argued that no date for performance having been fixed in
the receipt dated 9-7-1962, the sale deed could be obtained at any time specifically when in part
performance of the contract i.e. actual delivery of possession have already been made.

15. Learned Counsel for the petitioner has also argued that the starting point of limitation could only be
04-03-1983 when despite the notices upon the respondent firm or its is partner, they did not take steps
to send the representative to execute the sale deed in the office of Sub-Registrar, Haridwar.

16. Learned Counsel for the respondent in reply to the aforesaid arguments has invited my attention
towards the receipt dated 9-7-1962 which is as annexure-1 to this petition and on the basis of the same
he has submitted that the suit is specifically barred by period of limitation.

17. I have given my anxious consideration on the averments advanced before me and perused the
relevant documents pertaining to the questions in issues.

18. Annexure 1 to the writ petition is the receipt dated 9-7-1962 and it reads as follows :--

"Received with thanks from Address in full Shri V. K. Paliwal Advocate, Haridwar.

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 N.K. Paliwal, Advocate vs Special Judge And Ors. on 26 May, 2005

The sum of Rupees (in words) five hundred only.

Cash, or cheque No. Cash, as earned money towards the purchase of Plot No./ No. 15 Block No.
measuring 7004 Sq.Feets 25. (more or less on the site) in Naya Haridwar Colony Jawala Road,
Hardwar agreed to be sold at the rate of Rs. 1.12 per sq. feet as per terms and conditions noted on the
reverse.

Sd Illegible for Adarsh Colonizers Stamp of...

Agent Manager Terms and condition 25% amount shall be paid at the time of booking and 75%
balance of the sale price will be paid in twelve (12) monthly instalments Company will provide pucca
road. Storm water, drain water, pipe line, and electric lines according to Hardwar Municipality
supernication (sic). All expenses on registration and stamps papers etc. will be borne by the purchaser
and the company will register sale of Plot alter receiving full payment on his/her names.

The company reserves the right of making necessary alterations in the dimensions and area of the plot.
If required and the purchasers shall accept the increased or deceased area of the plots. In case of non
payment of the balance price on the due dates the company reserves the right to forfeit the amount
received by them without any notice.

All disputes arising out of this transaction shall be subject to the Jurisdiction of Court of law only in
Delhi.

The buyer shall get his/her complete address register with the company at the time of booking and it
shall be his/her responsibility to inform the Company about all subsequent changes any in his/her to
inform the company about all subsequent changes any in his/her address failing which all demand
notices and letters posted at the first registered address will be deemed to have been received by his/her
at the time when those should ordinary reach such a address and the buyer shall be responsible for any
default in payment and other subsequences shall might accrued therefrom."

19. On the basis of the reading of the aforesaid document, it is quite clear that the terms and conditions
for payment of the amount was fixed as 25% of amount should be paid at the time of booking and 75%
balance of the sale price will be paid in 12 monthly instalments and the company will register sale deed
of plot after receiving full payment on his/her name.

20. This clause in the terms and conditions clearly shows that the payment was to be made by the
plaintiff/petitioner in 12 monthly instalments i.e. in a year.

21. It hardly matters that the specific date for performance was not mentioned in the receipt, but the
recital made in the afore-said document makes a picture clear that the receipt was issued in the name of
the plaintiff/petitioner on 9-7-1962 and the payment had to be made up to 8-7-1963.

22. The suit was filed by the plaintiff/ petitioner on 15-3-1983 i.e. after a period of 20 year's which
apparently makes the picture clear that the suit is certainly barred by the period of limitation,

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 N.K. Paliwal, Advocate vs Special Judge And Ors. on 26 May, 2005

23. Learned Counsel for the petitioner cited , Babu Ram v. Indra Pal Singh in support of his
submission but after going through this judgment, I am of the view that the same is not going to help
the plaintiff/petitioner in any way.

24. The facts in the cited case were that "a period of 5 years was fixed for exercising the option to re-
purchase and it was not specified in the agreement that vendee shall execute the deed of repurchase
within a particular period from date by exercising of option. Thus second part, third column of Article
54 would be applicable and not the first part and time would start to run only from the date when the
defendant refused to execute the deed of reconveyance."

25. The Hon'ble Apex Court observed that suit filed within 3 years from that date of refusal by the
defendant is not barred by the period of limitation.

26. In the instant case, the circumstances are totally different. Firstly, in Annexure-1, it is quite clear
that the payment was to be made in 12 monthly instalments, hence the plaintiff/petitioner had to make,
full payment within a period of one year and only thereafter, the company could register the sale deed
of plot after receiving full payment.

27. This specific condition was scribed in that document, therefore, the period of limitation would
certainly start after the expiry of one year i.e. 9-7-1963 and I am of the definite view that in case, if the
period starts from 9-7-1963 then the present suit is barred by the period of limitation,

28. An excuse has been made by the plain tiff/petitioner that he could not know the trace of the
defendant/respondent for a span of about. 19 years. Hence he could not perform the performance of his
part. The silence of the plaintiff/petitioner for long span of 19 years itself appears to be strange as a
person who want to seek specific performance would not. keep mum or would not make any attempt to
get the sale deed executed.

29. Secondly, in the instant case, it also nowhere reveals that the defendant/respondent had ever
refused to execute the deed for re-conveyance. The plaintiff/petitioner himself is also silent: over this
aspect as he has not asserted anywhere that up to what time the performance of the contract was
settled.

30. Learned Counsel for the respondent, on the other hand has cited , Ramzan v. Hussaini.

31. I have gone through this judgment. and I am of the view that this judgment applies to the facts and
circumstances of the present case with full force. The Hon'ble Apex Court in this decision has
specifically ruled that "the word date fixed for the performance in Article 53 of the Limitation Act does
not require that a particular date from the calendar must be mentioned in the document and it is
sufficient if the basis of calculating the date fixed for performance is found in the document."

32. I therefore, on the basis of the aforesaid decision of the Apex Court as well as after assessment of
the evidence on record come to the conclusion that under the agreement, the date for the
defendant/respondent to execute the sale deed was fixed, although not by mentioning a certain date

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 N.K. Paliwal, Advocate vs Special Judge And Ors. on 26 May, 2005

but by a reference to the happening of a certain event, namely, the payment to be made in 12
instalments and only thereafter the defendant/respondent would become liable to execute the sale deed.

33. The period of limitation thus started running on that date i.e. 9-7-1963. In these circumstances, the
suit is barred by limitation.

34. The second point which has been placed before me is with regard to the question of jurisdiction.

35. Learned Counsel for the petitioner has argued that no agreement between the parties can deprive a
court of law of its lawful jurisdiction.

36. The record further reveals that there is a condition imposed in aforesaid annexure 1 with regard to
the jurisdiction of the Court and this condition reads as follows :--

"All disputes arising out of this transaction shall be subject to the jurisdiction of a Court of law only in
Delhi."

37. Learned Counsel for the petitioner has cited , Hakam Singh v. Gammon (India) Ltd. and has
submitted that "it is not open to parties by agreement to confer by their agreement jurisdiction on a
Court which it does not. possess under the Code. But where two Courts or more have under the Code of
Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the
dispute between them shall be tried in one of such Court is not contrary to public policy and such an
agreement does not contravene Section 28 of the Contract Act."

38. I have gone through the Judgment cited before me and I am of the view that in the instant case in
view of the term mentioned in annexure I to the writ petition which has been quoted by me earlier the
jurisdiction of any other Court is excluded.

39. Learned Counsel for the respondent has cited , Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd.
The Hon'ble Apex Court in the ruling cited above has specifically observed "that where two Courts or
more under the Code of Civil Procedure have jurisdiction to try a suit or a proceeding, an agreement
between the parties that the dispute between them shall be tried in one of such Courts is not contrary to
the public policy and that such an agreement does not contravene Section 28 of the Contract Act. But
where the ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other
Court. When the clause is clear, unambiguous and specific accepted notions of contract would bind the
parties, unless the absence of the ad idem can be shown, the other Courts should avoid exercising
jurisdiction."

40. In the instant case, in the agreement itself, the parties have agreed that the jurisdiction be confined
on a particular Court i.e. Courts at Delhi. Therefore, to my mind this suit could not have been filed in
the Court of Saharanpur (now at Haridwar).

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 N.K. Paliwal, Advocate vs Special Judge And Ors. on 26 May, 2005

41. On the basis of the evidence on record, I come to the conclusion that the points raised by the learned
Counsel for the petitioner before me are devoid of any force.

42. Learned Counsel for the petitioner has not stressed any other point before me.

43. In the result, the petition fails and is dismissed.

44. The order dated 3-5-1982 passed by in Civil Revision No. 319 of 1986 Adarsh Colonizers v. Sri N. K.
Paliwal and Ors. by the Special Judge, Saharanpur (now District Haridwar) is hereby confirmed.

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