Basheer Ahmed Noor-ul-Hussain Farooqui Vs. Shaikh Hamad - (High Court of Bombay) (23 Jun 2021)

Prosecution of a remedy before the Consumer Forum is a valid ground to invoke and apply the provisions of Section 14 of Limitation Act

MANU/MH/1527/2021

Limitation

The present appeal challenges the concurrent findings rendered by the Courts below, holding that Section 14 of the Limitation Act, 1963 was not applicable and therefore, the suit for specific performance as filed by the Appellant/Plaintiff, was barred by limitation and so also the findings, that the Plaintiff was not ready and willing to perform his part, as time was the essence of contract.

In a series of decisions, namely, Laxmi Engineering Works vs. P.S.G. Industrial Institute; Saushish Diamonds Ltd. vs. National Insurance Co. Ltd. and Deokar Exports Pvt. Ltd. vs. New India Assurance Co. Ltd., it has been held, that prosecution of a remedy before the Consumer Forum, would be a legal and valid ground, to invoke and apply the provisions of Section 14 of the Limitation Act. There is no reason whatsoever, why the same benefit, cannot be granted to the plaintiff, specifically in light of the fact, that the District Consumer Forum in fact entertained the plea of the Plaintiff and had granted relief. It therefore cannot be said that, prosecution of the remedy by the Plaintiff before the authorities under the Consumer Protection Act, 2019 was either malafide, or with knowledge that the same was not maintainable.

It is therefore held, that the suit as filed by the Plaintiff, was maintainable in view of the availability and applicability of Section 14 of the Limitation Act, to the Plaintiff, for if the period spent before the Consumer Forum and the Higher Authorities under the Consumer Protection Act was subtracted, then the suit filed by the Plaintiff, was clearly within the limitation as prescribed under Section 54 of the Limitation Act.

Further, it is well settled position of law, that in respect of an agreement for sale of immovable property, time can never be the essence of contract. Mere mention of a time period in the agreement, by itself would not make, time the essence of contract and the terms and conduct of the parties also has to be looked into and so also the capability of the owner to pass a marketable title, within the time frame mentioned in the agreement.

The trial court, merely presumed that the approach to the consumer forum, by the plaintiff, indicated his malafides and the period of eight months enumerated in the agreement dated 4th April, 2006, was sacrosanct. The judgments are quashed and set aside. Appeal allowed.

Tags : SPECIFIC PERFORMANCE TIME BARRED LEGALITY