Order-4.
Date-20/04/2017.
Both parties are present through lawyer.
Today is fixed for hearing the petition challenging the maintainability of the case dated 04-04-2017 filed by the OPs.
Heard Ld. Lawyers of both sides.
Considered.
In filing the petition it is stated that the instant case is not at all maintainable in terms of Clause 8 Page No.7 of the Agreement dated 12-10-1985. It is stated that the possession of the flat in question was delivered to the complainants on 02-12-1987 as admitted by the complainants in Paragraph 5 of the complaint. OP submits that the instant case is barred by limitation since the limitation period of two years as per Section 24A of the C.P. Act, 1986 commenced from the date of delivery of possession of the flat i.e. from 02-12-1987. It is also stated that the letter dated 09-11-2016 again cannot stretch the limitation period beyond two years since the said limitation period started to run from the date of delivery of possession of the flat. It is also alleged that there has been no communication from the end of the complainants since after January, 1998 and the case has been filed after 19 years from the last date of communication i.e. 09-01-1998. It is stated that the instant case is barred by limitation. It is also alleged that OPs made several requests to the complainants both orally and also in writing to get the Deed of Conveyance in respect of the flat registered in their names but the complainants paid no heed to such request. It is stated that complainants have filed this case after 19 years in order to harass the OPs unnecessarily being both widows and aged and not keeping in good health with the passage of time. It is also stated that the partnership firm has already been dissolved. The complainants have suddenly awaken up from their slumber and sent a letter dated 09-11-2016 to cause mental agony and physical pain to the OPs. it is stated that the case is not maintainable and is liable to be dismissed in limini being barred by limitation.
Complainants have filed written objection contending, inter alia, that the petition is not maintainable in law. It is stated that in an agreement for sale of immovable property the presumption is that the time is not the essence of the contract. It is also stated that in case of full payment of consideration by the complainants and non-execution of the Sale Deed by the OPs, the provisions of Section 24A are not applicable as there is a continuous cause of action. It is alleged that the developer failed to hand over possession within May, 1986 and handed over possession by December, 1987 and violated the Clause 8 of the agreement and as such time cannot said to be the essence of the contract. It is also stated that the instant case being a case of registration of a Deed of Conveyance is continuous in cause of action. It is denied that the complainants arose suddenly from long slumber and sent the letter dated 09-11-2016. It is stated that the instant complaint filed by the OP is not maintainable and is liable to be dismissed in limini.
Perused the documents on record including the agreement dated 12-10-1985 between DeyDutt Enterprises, a partnership firm since dissolved and the complainants for sale of flat No.5/2, on the 4th floor of the building situated at 1B Reach Road Portion now known as 1C, PankajMallickSarani, Kolkata 19. It is alleged by the complainants that the OPs failed and neglected to execute a Deed of Conveyance in favour of the complainants and no reason whatsoever has been attributed as to why they failed to do so and the complainants have filed the instant case alleging deficiency in service for non-registration of the subject flat by the OPs. we find that the possession of the subject flat was delivered to the complainants on 02-12-1998. The complainants vide a letter dated 02-01-1998 made a request to the OPs for registration of the flat. We also find that OPs replied to the same vide a letter 09-01-198 denying the allegations of the respective letter by the complainants and requested the complainants and others to get the Deed of Conveyance registered in respect of the respective flats in their names and also reminded them the consequences as enshrined in Clause No.8 Page No.7 of the Agreement for Sale dated 12-10-1985. We find that the complainants slept over the matter since then and arose from deep slumber and suddenly sent a letter dated 09-11-2016 between the Ops for registration of the subject flat. Clause 8 of the Agreement for Sale dated 12-10-1985 reads as follows :
“The Flat is expected to be completed by May, 1986 and within one month (Time being the essence of this Contract) from the date when the property agreed to be sold is complete. The buyers of the property agreed to be sold shall pay the entire balance of price, payable taxes etc. and also at their cost obtain a Conveyance in the standard form. If the buyers fail to pay the balance as aforesaid and/or obtain a registered conveyance in respect of the property agreed to be sold as aforesaid the amount of earnest money paid by such defaulting purchasers shall stand forfeited by way of liquidated damages and the defaulting purchaser shall lose all rights in respect of the property agreed to be purchased by them and the Agreement with such defaulting purchasers shall be liable to be cancelled and determined by the Sellers. The Sellers shall on such termination refund to the defaulting purchasers the other instalments or part payment excepting the earnest money, if any, made by such defaulting purchasers to the Sellers under the provisions hereto in the meantime but without any interest otherwise and the Sellers shall be at liberty to sell the said property agreed to be sold to any other person and at such price as the sellers may think fit. The buyers shall not be entitled to question such Sale or to claim any amount whatever out of the proceeds of such sale.”
Section 55 of the Contract Act is very much clear regarding the truism of lawwhen the time is the essence of contract. Section 55 of Contract Act envisages:
Effect of Failure to perform at fixed time, in contract in which time is essential – when a party to a contract promises to do a certain thing at or before a specified time or certain things at or before specified times and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract.
We find that the contract dated 12/10/1985 provides time as the essence of contract and there is no provision for extension of time. In the wake of this factual detail as appearing from the record and by reason of non-registration of the flat in terms of the agreement it cannot be said that time was not the essence of the contract. Moreover, we think that the complainant cannot revive the cause of action by writing a letter dated 09-11-2016 i.e. after long lapse of 19 years. It is also a truism of law that legal notes cannot extend time (2015(1) CPR 823 NC relied upon).
The instant case has been filed after 19 years from the last date of communication i.e. 09/01/1998. The delivery of possession was effected on 02/12/1987. The case as such is barred by limitation under the C. P. Act.
We also find that the Agreement for Sale dated 12-10-1985 was entered by M/s. DeyDutt Enterprises, a partnership represented by Smt. SukritiDey and Smt. TriptiDutt as sellers whereas the instant case has been filed against Smt. SukritiDey and TriptiDutt in their individual names. Moreover, we are also given to understand that the partnership firm is dissolved. We think that Clause No.8 of the Agreement for Sale dated 12-10-1985 is binding upon the complainants. Moreover, we also find that the complainants did not file any petition praying for condonation of the delay. The argument of the continuing cause of action in view of the facts and circumstances of the present case is not tenable as argued from the side of the complainants. Time in the instant case appears to be essence of contract. We have no hesitation in holding that the complaint filed on 01-03-2017 and that too without an application of Condonation of Delay is manifestly, hopelessly barred by limitation for the foregoing reason. We do not find any merit in the objection filed from the OP.
Hence,
Ordered
That the instant petition challenging the maintainability of the case dated 04-04-2017 filed by the OPs is allowed on contest.
The instant case is barred by limitation as per Section 24A of the C.P. Act.
