V K VARMA vs Vikram Kumar

-HEARD the learned Counsel for the petitioner.

THE complainant/petitioner is aggrieved by the dismissal of his appeal on the ground that the complaint was passed by limitation for cause of action had been held to have accrued on 8th August, 2001 and he could have filed the complaint within two years, thereafter. Since the complaint was filed on 25th August, 2005, it was held to be barred by limitation. Brief facts, which have given an occasion to file this revision, are as under:

The complainant and his wife had allegedly purchased the ground floor apartment built on Plot No. K-2/21, DLF Qutab Enclave Complex, Phase II, now known as DLF City II, Gurgaon from Vikram Kumar for a consideration of Rs. 8,00,000 on 22. 4. 1996. He incurred additional expenditure on stamp duty of Rs. 1,00,000 and Rs. 18,000 as broker's fee. At the time of sale, the opposite party had shown to the complainant and his wife the original title deed to convince the complainant in respect of his title to the property.

IN the month of August, 2001, the complainant received summons from Debt Recovery Tribunal in respect of the application filed by the State Bank of Indore alleging that the complainant/petitioner was an illegal occupant of his residential property. Vikram Kumar-opposite party had created an equitable mortgaged by depositing title deed and extended it on 20/21. 10. 1995. The fact that the opposite party had filed two affidavits dated 2. 7. 1997 and 3. 11. 1997 representing that he was in actual and exclusive possession of the said property and enjoyed credit facility on this basis also came to light. The complainant was arrayed as respondent No. 5. Vikram Singh was arrayed as respondent No. 3. The State Bank of Indore had claimed Rs. 2,27,28,539. He had also received copy of the injunction order restraining him from alienating, disposing, transferring the plot or creating interest of third party in any manner. A compromise was arrived at between the Bank and M/s. Dewan Chand and Company (P) Ltd. for Vikram Kumar paid an amount of Rs. 1,19,05,000 to the bank during the proceedings before the Debt Recovery Tribunal, New Delhi on 19. 5. 2005.

IN the present complaint filed on 25. 8. 2005 before the District Forum, the complainant/petitioner had further alleged that the opposite party/vikram Singh had deliberately concealed the aforesaid facts that the original title deeds were with the State Bank of Indore at the time the sale was affected by him in respect of the premises on 22. 4. 1996. He had also lodged FIR against the opposite party and case proceeded under Section 420, I. P. C. in Case No. 298 of 2002, State v. Vikram Kumar. The complainant claimed a sum of Rs. 3,00,000 towards mental agony and harassment. It was also claimed that there was continuing cause of action. The opposite party/respondent appeared before the State Commission. But since he failed to file written version on 5. 5. 2006, his defence was struck off. An application under order 7 Rule 11 read with Section 151, C. P. C. was filed seeking rejection of the complaint being time-barred. The District Forum considering that the complainant came to know about the execution of the equitable mortgage on 28. 8. 2001, when he received copy of the petition/application filed before DRT-I, New Delhi; lodged the FIR in 2002, while the complaint was filed before the District Forum on 25. 8. 2005, i. e. beyond 2 years and accordingly held it barred by time in terms of Section 24a of Consumer Protection Act, 1986 and dismissed the same.

THE complainant/petitioner filed an appeal against the order of dismissal of his complaint. The State Commission rejected the contention of the petitioner/complainant that the cause of action was continuous, and uphold the order of the District Forum.

HEARD the petitioner/complainant in person and gone through the impugned order. I have gone through the impugned order and material on record.

If the complainant had received summons from Debt Recovery Tribunal on 9th August, 2001, then there could not be any doubt that the cause of action arose for the first time on the date he received the summons. If the title has come under clouds then he was not supposed to wait and claim that cause of action was continuing awaiting for the final outcome of the application before the Debt Recovery Tribunal and settlement of the claim between M/s. Dewan Chand and Company (P) Ltd. and Vikram by paying a sum of Rs. 1,19,05,000 would not extend the period of limitation.

THE right of the complainant as a purchaser in the afore-mentioned would be covered under Section 13 (3) of the Specific Relief Act, which reads as under: Rights of purchaser or lessee against person with no title or imperfect title- (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely: (a ). . . . . . . (b ). . . . . . . (c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee; (d ). . . . . . .

IT is evident that by making payment, the property has been got redeemed by the respondent and it would amount to valid discharge on redemption. Thus, the main grievance is over. In so far as the compensation part is concerned, the cause of action arose on the same day when he received the notice and he had already a cause of action and also all facts which would have been right to judicial redress against another whether within his knowledge including the expenditure which he had already incurred and which he is likely to incur the fact that the petitioner slept over the matter since August, 2001 and filed the complaint on 20th August, 2005 when the complaint was patently barred by time. For this kind of right a complaint/suit should have been filed within 2-3 years, respectively from the date cause of action arose. As regards litigation cost that could have been in those very proceedings and if not awarded or if the petitioner did not claim against the opposite party/respondent, then he cannot file a separate complaint later on.

IN so far as the exclusion of period spent in litigation before Debt Recover Tribunal or otherwise before any other Fora, provision of Sec. 14 of the limitation would not enure to the benefit of the complainant. Section 14 of the Limitation is as under: 14. Exclusion of time of proceeding bona fide in Court without jurisdiction- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in Rule 2 of Order 23 of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under Rule 1 of that order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. Explanation-For the purpose of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

THE application before Debt Recovery Tribunal was filed by a third party and not by the plaintiff/complainant, Section 14 of the Limitation Act does provide exclusion of time spent in proceedings bona fide in a Court without jurisdiction only. The matter being dealt with by the Debt Recovery Tribunal was not beyond its jurisdiction. Secondly, it was neither a suit, nor a complaint or application which the complainant has been prosecuting with due diligence, nor the matter is covered by ub-sec. (3) of Section 14 of the Limitation Act. Moreover, the matter in issue before the Debt Recovery Tribunal was not the liability of the opposite party arising on account of non-disclosure of the fact that the property has been mortgaged in favour of the Bank before sale, but on account of mortgage. They were different causes of action existing directly between different parties. The complainant was indirectly involved for he has purchased property mortgaged by the respondent/opposite party. For the aforesaid reasons the time spent before the Debt Recovery Tribunal not in prosecuting his case but just watching his interest would not be excluded in terms of provisions under Section 14 of the Limitation Act. In the light of aforesaid facts, circumstances and reasons, and seeing the detailed order passed by the State Commission and the reasons given therein, the complaint was patently barred by time in view of the provisions of Section 24a of the C. P. Act, 1986 (for it was not filed within a period of 2 years from 9. 8. 2001, the date when the cause of action arose ). Consequently, there is no force in this revision and it is dismissed accordingly. Revision Petition dismissed.