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AO/234/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 234 of 2011
With
CIVIL
APPLICATION No. 6962 of 2011
=========================================
UNIQUE
OWNER'S ASSOCIATION THROUGH KALPITBHAI B PATEL - Appellant(s)
Versus
BHARATBHAI
HIMATLAL MEHTA & 1 - Respondent(s)
=========================================
Appearance
:
MR MB GANDHI for Appellant(s) :
1,MR CHINMAY M GANDHI for Appellant(s) : 1,
MR JA ADESHRA with MR
JS PARMAR for Respondent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 30/06/2011
ORAL
ORDER
ADMIT.
Civil
Application No. 6962 of 2011
Heard
learned counsel Mr. M.B. Gandhi for the applicants and learned
counsel Mr. J.A. Adeshra for the respondents-caveators.
2. Learned
counsel Mr. Gandhi referred to the paper-book which includes an
agreement to sell and tried to emphasise that in part performance of
the contract, substantial amount has been paid and thereafter, though
the time-limit was fixed, for various reasons including some
litigation and the part of the premises in occupation of the tenant,
the agreement was not executed. He submitted that the suit is filed
as the respondents have now tried to sell it to third party in breach
of the terms of the agreement to sell. He submitted that the trial
court has failed to consider this aspect and referring to the
provisions of NTC has refused injunction and therefore the Appeal
from Order has been filed. He further submitted that as per the
provisions of the General Clauses Act whatever acts which have been
done will be saved and therefore the aspect of limitation should not
be a ground to refuse to entertain the suit as the respondent-vendor
has also never given any notice for cancellation of the agreement and
in fact he has failed to perform his part of the contract.
3. Learned
counsel Mr. Adeshra has submitted that the agreement to sell is of
28.7.1998 and the suit is filed in the year 2009, which is hopelessly
time-barred. He further submitted that if one of the conditions of
the agreement to sell was three years, the suit ought to have been
filed within the prescribed limit and merely on the basis of an
agreement to sell such a suit would not be maintainable.
4. In
support of this submission, learned counsel Mr. Adeshra has referred
to and relied upon the judgment of the Hon’ble Apex Court reported in
(2008) 10 SCC 153 = JT 9 (2008) 334 in the case of Kumar Gonsusab
& Ors. v. Sri Mohammed Miyan Urf Baban & Ors.. He has
also referred to the judgment reported in 2010 (1) GLH 112 in the
case of Harshadkumar Kantilal Bhalodwala and anr. v. Ishwarbhai
Chandubhai Patel & ors. and referring to Head Note [C] he
submitted that while exercising the powers for the purpose of
considering the Appeal from Order, the Court has to exercise the
discretion only if the discretion exercised by the trial court is
perverse. He submitted that the order passed by the trial court
cannot be said to be perverse and therefore it may not call for any
interference and the present Appeal from Order may not be
entertained. He has also referred to and relied upon the judgment in
the case of Veetrag Hodings Pvt. Ltd. v. Gujarat State Textile
Ciorporation Ltd., reported in 1996 (1) GLH 179, in support of
his submission.
5. In view
of rival submissions, considering the provisions of the NTC Act which
is repealed and the General Clauses Act, the two aspects which are
required to be considered are that in part performance of the
contract the respondent caveator has accepted substantial amount
towards the consideration and he cannot be permitted to resort to one
clause as the agreement has to be read as a whole which also casts an
obligation upon the respondent with regard to getting the clearance
and/or possession of the premises from the tenant. Though the suit
is filed later, it has to be considered with reference to the
provisions of the Specific Relief Act and the Transfer of Property
Act when part performance is made and therefore the court is of the
opinion that the reliance placed only on one clause of the agreement
with regard to the time-limit would not be just and proper.
6. Similarly,
the reliance placed by learned counsel Mr. Adeshra on a judgment of
the Hon’ble Apex Court in the case of Kumar Gonsusab & Ors. v.
Sri Mohammed Miyan Urf Baban & Ors. (supra) with regard to
the suit for pre-emption brought on the basis of agreement does not
apply to the facts of the present case. There the facts were totally
different and it was with regard to a different fact-situation,
whereas in the facts of the present case, considering the provisions
of the law including the Transfer of Property Act as well as the
Contract Act, it will not be of any help to the applicant as the
contract or agreement to sell has to be read as a whole and cannot be
read in isolation for only one clause.
7. It is in
these circumstances, since it is a matter with regard to
interpretation of the agreement to sell which has been acted upon,
the present civil application requires to be granted.
8. Hence,
rule. Learned counsel Mr. Adeshra waives service of rule for the
respondents. Interim relief in terms of Para 6(a) is granted.
9. The
civil application accordingly stands disposed of. It goes without
saying that the aforesaid observations are only tentative for the
purpose of appreciating the submissions and it cannot be construed as
having decided any issue at this stage and the trial court will
consider the suit as well as any application made thereunder in
accordance with law without being influenced by this order.
(Rajesh H.
Shukla, J.)
(hn)
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