{"id":178425,"date":"2005-08-29T00:00:00","date_gmt":"2005-08-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/popat-and-kotecha-property-vs-state-bank-of-india-staff-on-29-august-2005"},"modified":"2015-03-03T11:40:02","modified_gmt":"2015-03-03T06:10:02","slug":"popat-and-kotecha-property-vs-state-bank-of-india-staff-on-29-august-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/popat-and-kotecha-property-vs-state-bank-of-india-staff-on-29-august-2005","title":{"rendered":"Popat And Kotecha Property vs State Bank Of India Staff … on 29 August, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Popat And Kotecha Property vs State Bank Of India Staff … on 29 August, 2005<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, H.K. Sema<\/div>\n
           CASE NO.:\nAppeal (civil)  3460 of 2000\n\nPETITIONER:\nPopat and Kotecha Property\t\t\t\t\n\nRESPONDENT:\nState Bank of India Staff Association\t\t\n\nDATE OF JUDGMENT: 29\/08\/2005\n\nBENCH:\nARIJIT PASAYAT & H.K. SEMA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tAppellant calls in question legality of the judgment
\nrendered by a Division Bench of the Calcutta High Court
\nholding that the plaint filed by the appellant was to be
\nrejected in terms of Order VII Rule 11 (d) of the Code of
\nCivil Procedure, 1908 (in short the ‘CPC’) as the suit was
\nbarred by limitation.  The order passed by learned Single
\nJudge holding that said provision was not applicable to the
\nfacts of the case was set aside.\n<\/p>\n
\tFactual position in a nutshell is as follows:\n<\/p>\n
\tAppellant and respondent entered into an agreement on
\n19th January, 1983 whereby the appellant agreed to build and
\ndevelop the property owned by the respondent-Association. A
\ndetailed agreement was accordingly executed on 19th January,
\n1983 which, inter alia, provided for regulating relationship
\nbetween the parties.  Para 13 of the agreement stipulated
\nthat after construction of the entire building and issuance
\nof final completion certificate by two Chartered Engineers
\nthe appellant shall by a notice to the respondent-
\nAssociation call upon it to execute a registered lease deed
\nin its favour or in favour of its nominee whereby a lease of
\nthe 2nd floor, 3rd floor, 4th floor, 5th floor and the roof
\n(collectively described as the demised premises) was to be
\ngranted.  Several stipulations were provided in detail. It
\nis not in dispute that the building was completed in the
\nyear 1984.  Appellant claimed to have written a letter dated
\n4.11.1984 calling upon the respondent to execute the lease
\ndeed in its favour. Admittedly no lease deed has been
\nexecuted.  The suit was filed in July, 1990, inter alia,
\nwith the following prayers:\n<\/p>\n
“(a)\tDeclaration that the plaintiff alone is
\nentitled to let out the ground floor, 2nd,
\n3rd, 4th, 5th floor and the roof of the said
\npremises shortly referred to have as the
\n‘Builders Block’ and realize all rents,
\nissues and profits therefrom without any
\ninterference by the defendant.\n<\/p>\n
(b)\tPerpetual injunction restraining the
\ndefendant from executing any lease or other
\ndocuments in favour of persons in occupation
\nof any portion of the builders block referred
\nto in prayers (a) or in relation to any part
\nor portion of the said block in consideration
\nof any sum or from realizing any rent issues
\nor profit therefrom incumbent or otherwise
\ndeal with and exercise any control or
\ndominance over the same;\n<\/p>\n
(c)\tDecree for Rs.18,84,500\/- (Rupees
\nEighteen lacs eighty four thousand five
\nhundred) only as pleaded in paragraphs 18 and
\n25 of the plaint.\n<\/p>\n
(d)\tAlternatively, an account of what is due
\nand payable to the plaintiff by the defendant
\nin respect of all dealings and transactions
\nby the defendant with the person or persons
\nin occupation of the builders block of the
\nsaid premises and a decree for such sum as
\nmay be found due and payable after taking
\nsuch account;\n<\/p>\n
(e)\tAll further proper accounts enquiries
\nand directions;\n<\/p>\n
(f)\tDecree for specific performance of the
\nDevelopment Agreement dated 19th January,
\n1983 be granted against the defendant in
\nterms of Clause 16 of the said Agreement
\nrequiring the defendant to execute Deed of
\nLease for a period of 51 years on terms and
\nconditions contained in the said Clause;\n<\/p>\n
(g)\tMandatory injunction directing the
\ndefendant to execute and register a Deed of
\nLease, in favour of the plaintiff and\/or its
\nnominee or nominees in terms of Clause 18 of
\nthe Development Agreement dated 19th January,
\n1983 in respect of the Builders Block, being
\nthe 2nd, 3rd, 4th, 5th floor and roof as
\nreferred to above;\n<\/p>\n
(h)\tIn the event of the defendant failing to
\nexecute, register and deliver Deed of Lease,
\nthe Registrar, Original Side of this Hon’ble
\nCourt be directed to settle execute and
\nregister necessary Deed of Lease in respect
\nof the Builders Block as referred to above
\nfor and on behalf of the defendant.\n<\/p>\n
(i)\tDecree for Rs.80 lacs as damages as
\nmentioned in paragraph 12 above in addition
\nto a decree for specific performance;\n<\/p>\n
(j)\tAlternatively, an enquiry, into loss and
\ndamage suffered by the plaintiff and a decree
\nfor such sum as may be found due and payable
\nupon such enquiry;\n<\/p>\n
(k)\tIn the event decree for specific
\nperformance as prayed for cannot be granted,
\na decree for damages in terms of specific
\nperformance be granted against the defendant
\nat such rate or rates and on such basis as
\nthis Hon’ble Court may deem fit and proper;\n<\/p>\n
(l)\tCosts;\n<\/p>\n
(m)\tFurther or other reliefs.”\n<\/p>\n
\tAn application was filed by the respondent under Order
\nVII Rule 11 of CPC praying for rejection of the plaint on
\nthe ground that the suit as is apparent from the statement
\ncontained in the plaint itself was barred by limitation in
\nthe sense that the suit was filed beyond the period
\nprescribed in the Indian Limitation Act, 1963 (in short
\n‘Limitation Act’).\n<\/p>\n
\tLearned Single Judge dismissed the application holding
\nthat the expression “barred by any law” as occurring in
\nthe provision did not include the operation of the
\nLimitation Act.  The Division Bench was of the view that the
\nclaims made in the plaint revolve round the nucleus i.e.
\nfocal point of the execution of lease deed which was to be
\ndone sometimes in 1985 and as the suit was filed in 1999, it
\nwas clearly barred by limitation.\n<\/p>\n
\tLearned counsel for the appellant submitted that the
\napproach of the Division Bench is clearly erroneous. The
\nHigh Court proceeded on the basis as if the only claim
\nrelated to execution of the lease deed. In fact, there were
\nseveral other reliefs like claim for damages, unauthorized
\ncollection of amounts in respect of the building which
\nadmittedly were to be in possession of the present appellant
\nwith full liberty to let out the premises.  Clause 12 of the
\nagreement clearly stipulated that the appellant had the
\nauthority to let out the building without any objection and
\nwithout requiring consent from the respondent-Association.
\nThe Receiver appointed by the Court on the interlocutory
\napplication filed by the applicant clearly noted that the
\ndefendant i.e. the respondent-Association had executed lease
\ndeeds on 3.4.1988, 16.7.1988 and 19.4.1999. Prayer in the
\nplaint was to pass a decree of Rs.18,84,500\/- which was the
\namount collected by the respondent. The suit was by no
\nstretch of imagination filed beyond the period of
\nlimitation.  By its conduct the respondent had acknowledged
\nthe claim of the plaintiff-appellant and the period of
\nlimitation in any event would run from the date of
\nacknowledgement.\n<\/p>\n
\tPer contra, learned counsel for the respondent
\nsubmitted that though various claims were made, as rightly
\nobserved by the High Court, focal point was non-execution of
\nlease deed.  All the other claims had their matrix thereon
\nand, therefore, the Division Bench of the High Court was
\nright in deciding in favour of the present respondent.  It
\nwas submitted that the collections made by the respondent
\nwere for the period beyond 51 years from the date of
\nagreement in 1983 and not for any period prior to that.
\nThere was no question of the period of limitation getting
\nextended, even if there is an acknowledgment beyond the
\nprescribed period of limitation.\n<\/p>\n
\t The period of limitation is founded on public policy,
\nits aim being to secure the quiet of the community, to
\nsuppress fraud and perjury, to quicken diligence and to
\nprevent oppression. The statute i.e. Limitation Act is
\nfounded on the most salutary principle of general and public
\npolicy and incorporates a principle of great benefit to the
\ncommunity.  It has, with great propriety, been termed a
\nstatute of repose, peace and justice. The statute
\ndiscourages litigation by burying in one common receptacle
\nall the accumulations of past times which are unexplained
\nand have not from lapse of time become inexplicable. It has
\nbeen said by John Voet, with singular felicity, that
\ncontroversies are limited to a fixed period of time, lest
\nthey should be immortal while men are mortal. ( Also See
\nFrance B. Martins v. Mafalda Maria<\/a> (1996 (6) SCC 627).\n<\/p>\n
\tBar of limitation does not obstruct the execution. It
\nbars the remedy. (See V. Subba Rao and Ors. v. Secretary to
\nGovt. Panchayat Raj and Rural Development, Govt. of A.P. and
\nOrs. (1996 (7) SCC 626.)<\/p>\n
\tRules of limitation are not meant to destroy the rights
\nof parties. They are meant to see that parties do not resort
\nto dilatory tactics, but seek their remedy promptly. The
\nobject of providing a legal remedy is to repair the damage
\ncaused by reason of legal injury. The law of limitation
\nfixes a life-span for such legal remedy for the redress of
\nthe legal injury so suffered. Time is precious and wasted
\ntime would never revisit. During the efflux of time, newer
\ncauses would sprout up necessitating newer persons to seek
\nlegal remedy by approaching the courts. So, a life-span must
\nbe fixed for each remedy. Unending period for launching the
\nremedy may lead to unending uncertainty and consequential
\nanarchy. The law of limitation is thus founded on public
\npolicy.  It is enshrined in the maxim interest reipublicae
\nut sit finis litium (it is for the general welfare that a
\nperiod be put to litigation). The idea is that every legal
\nremedy must be kept alive for legislatively fixed period of
\ntime.  (See N. Balakrishanan v. M. Krishna Murthy (1998 (7)
\nSCC 123).\n<\/p>\n
\tClause (d) of Order VII Rule 7 speaks of suit, as
\nappears from the statement in the plaint to be barred by any
\nlaw.  Disputed questions cannot be decided at the time of
\nconsidering an application filed under Order VII Rule 11
\nCPC.  Clause (d) of Rule 11 of Order VII applies in those
\ncases only where the statement made by the plaintiff in the
\nplaint, without any doubt or dispute shows that the suit is
\nbarred by any law in force.\n<\/p>\n
\tOrder VII Rule 11 of the Code reads as follows:\n<\/p>\n
Order VII Rule 11: Rejection of plaint.  The
\nplaint shall be rejected in the following
\ncases :-\n<\/p>\n
(a)\twhere it does not disclose a cause of
\naction;\n<\/p>\n
(b)\twhere the relief claimed is undervalued,
\nand the plaintiff, on being required by the
\nCourt to correct the valuation within a time
\nto be fixed by the court, fails to do so;\n<\/p>\n
(c)\twhere the relief claims is properly
\nvalued but the plaint is written upon paper
\ninsufficiently stamped, and the plaintiff, on
\nbeing required by the Court to supply the
\nrequisite stamp-paper within a time to be
\nfixed by the Court, fails to do so;\n<\/p>\n
(d)\twhere the suit appears from the
\nstatement in the plaint to be barred by any
\nlaw;\n<\/p>\n
(e)\twhere it is not filed in duplicate;\n<\/p>\n
(f)\twhere the plaintiff fails to comply with
\nthe provisions of rule 9.\n<\/p>\n
\tProvided that the time fixed by the
\nCourt for the correction of the valuation or
\nsupplying of the requisite stamp-paper shall
\nnot be extended unless the Court, for reasons
\nto be recorded, is satisfied that the
\nplaintiff was prevented by any cause of an
\nexceptional nature for correcting the
\nvaluation or supplying the requisite stamp-
\npaper, as the case may be, within the time
\nfixed by the Court and that refusal to extend
\nsuch time would cause grave injustice to the
\nplaintiff.”\n<\/p>\n
\tIn the present case the respondent has relied upon
\nclause (d) of Rule 11.\n<\/p>\n
\tBefore dealing with the factual scenario, the spectrum
\nof Order VII Rule 11 in the legal ambit needs to be noted.\n<\/p>\n
\tIn Saleem Bhai and Ors. v. State of Maharashtra and
\nOrs.<\/a> (2003 (1) SCC 557) it was held with reference to Order
\nVII Rule 11 of the Code that the relevant facts which need
\nto be looked into for deciding an application thereunder are
\nthe averments in the plaint. The trial Court can exercise
\nthe power at any stage of the suit – before registering the
\nplaint or after issuing summons to the defendant at any time
\nbefore the conclusion of the trial. For the purposes of
\ndeciding an application under clauses (a) and (d) of Order
\nVII Rule 11 of the Code, the averments in the plaint are the
\ngermane; the pleas taken by the defendant in the written
\nstatement would be wholly irrelevant at that stage.\n<\/p>\n
\tIn I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and
\nOrs.<\/a> (1998 (2) SCC 70) it was held that the basic question
\nto be decided while dealing with an application filed under
\nOrder VII Rule 11 of the Code is whether a real cause of
\naction has been set out in the plaint or something purely
\nillusory has been stated with a view to get out of Order VII
\nRule 11 of the Code.\n<\/p>\n
\tThe trial Court must remember that if on a meaningful
\nand not formal reading of the plaint it is manifestly
\nvexatious and meritless in the sense of not disclosing a
\nclear right to sue, it should exercise the power under Order
\nVII Rule 11 of the Code taking care to see that the ground
\nmentioned therein is fulfilled. If clever drafting has
\ncreated the illusion of a cause of action, it has to be
\nnipped in the bud at the first hearing by examining the
\nparty searchingly under Order X of the Code. (See T.
\nArivandandam v. T.V. Satyapal and Anr.<\/a> (1977 (4) SCC 467)<\/p>\n
\tIt is trite law that not any particular plea has to be
\nconsidered, and the whole plaint has to be read. As was
\nobserved by this Court in Roop Lal Sathi v. Nachhattar Singh
\nGill<\/a> (1982 (3) SCC 487), only a part of the plaint cannot be
\nrejected and if no cause of action is disclosed, the plaint
\nas a whole must be rejected.\n<\/p>\n
\tIn Raptakos Brett & Co. Ltd. v. Ganesh Property<\/a> (1998
\n(7) SCC 184) it was observed that the averments in the
\nplaint as a whole have to be seen to find out whether clause\n<\/p>\n
(d) of Rule 11 of Order VII was applicable.\n<\/p>\n
\tThere cannot be any compartmentalization, dissection,
\nsegregation and inversions of the language of various
\nparagraphs in the plaint. If such a course is adopted it
\nwould run counter to the cardinal canon of interpretation
\naccording to which a pleading has to be read as a whole to
\nascertain its true import. It is not permissible to cull out
\na sentence or a passage and to read it out of the context in
\nisolation. Although it is the substance and not merely the
\nform that has to be looked into, the pleading has to be
\nconstrued as it stands without addition or subtraction of
\nwords or change of its apparent grammatical sense. The
\nintention of the party concerned is to be gathered primarily
\nfrom the tenor and terms of his pleadings taken as a whole.
\nAt the same time it should be borne in mind that no pedantic
\napproach should be adopted to defeat justice on hair-
\nsplitting technicalities.\n<\/p>\n
\tKeeping in view the aforesaid principles the reliefs
\nsought for in the suit as quoted supra have to be
\nconsidered. The real object of Order VII Rule 11 of the Code
\nis to keep out of courts irresponsible law suits. Therefore,
\nthe Order X of the Code is a tool in the hands of the Courts
\nby resorting to which and by searching examination of the
\nparty in case the Court is prima facie of the view that the
\nsuit is an abuse of the process of the court in the sense
\nthat it is a bogus and irresponsible litigation, the
\njurisdiction under Order VII Rule 11 of the Code can be
\nexercised.\n<\/p>\n
\tOrder VI Rule 2(1) of the Code states the basic and
\ncardinal rule of pleadings and declares that the pleading
\nhas to state material facts and not the evidence. It
\nmandates that every pleading shall contain, and contain
\nonly, a statement in a concise form of the material facts on
\nwhich the party pleading relies for his claim or defence, as
\nthe case may be, but not the evidence by which they are to
\nbe proved.\n<\/p>\n
\tThere is distinction between ‘material facts’ and
\n‘particulars’. The words ‘material facts’ show that the
\nfacts necessary to formulate a complete cause of action must
\nbe stated. Omission of a single material fact leads to an
\nincomplete cause of action and the statement or plaint
\nbecomes bad. The distinction which has been made between
\n‘material facts’ and ‘particulars’ was brought by Scott,
\nL.J. in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the
\nfollowing passage:\n<\/p>\n
\tRule 11 of Order VII lays down an independent remedy
\nmade available to the defendant to challenge the
\nmaintainability of the suit itself, irrespective of his
\nright to contest the same on merits. The law ostensibly does
\nnot contemplate at any stage when the objections can be
\nraised, and also does not say in express terms about the
\nfiling of a written statement. Instead, the word ‘shall’ is
\nused clearly implying thereby that it casts a duty on the
\nCourt to perform its obligations in rejecting the plaint
\nwhen the same is hit by any of the infirmities provided in
\nthe four clauses of Rule 11, even without intervention of
\nthe defendant. In any event, rejection of the plaint under
\nRule 11 does not preclude the plaintiffs from presenting a
\nfresh plaint in terms of Rule 13.\n<\/p>\n
\tThe above position was highlighted in Sopan Sukhdeo
\nSable and Ors. v. Assistant Charity Commissioner and Ors.<\/a>
\n(2004 (3) SCC 137).\n<\/p>\n
\tWhen the averments in the plaint are considered in the
\nbackground of the principles set out in Sopan Sukhdeo’s case
\n(supra), the inevitable conclusion is that the Division
\nBench was not right in holding that Order VII Rule 11 CPC
\nwas applicable to the facts of the case.  Diverse claims
\nwere made and the Division Bench was wrong in proceeding
\nwith the assumption that only the non-execution of lease
\ndeed was the basic issue.  Even if it is accepted that the
\nother claims were relatable to it they have independent
\nexistence.  Whether the collection of amounts by the
\nrespondent was for a period beyond 51 years need evidence to
\nbe adduced. It is not a case where the suit from statement
\nin the plaint can be said to be barred by law.  The
\nstatement in the plaint without addition or subtraction must
\nshow that is barred by any law to attract application of
\nOrder VII Rule 11.  This is not so in the present case.\n<\/p>\n
\tWe do not intend to go into various claims in detail as
\ndisputed questions in relation to the issue of limitation
\nare involved.\n<\/p>\n
\tThe appeal is accordingly allowed with no order as to
\ncosts. We make it clear that we have not expressed any
\nopinion on the merits of the case which shall be gone into
\nin accordance with law by the Trial Court.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Popat And Kotecha Property vs State Bank Of India Staff … on 29 August, 2005 Author: A Pasayat Bench: Arijit Pasayat, H.K. Sema CASE NO.: Appeal (civil) 3460 of 2000 PETITIONER: Popat and Kotecha Property RESPONDENT: State Bank of India Staff Association DATE OF JUDGMENT: 29\/08\/2005 BENCH: ARIJIT PASAYAT & H.K. 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