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KARAN LUTHRA vs SH. M.K. SUBBA

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 31st January, 2024
Pronounced on: 30th April, 2024

+ CS(OS) 45/2018, CRL.M.A. 30198/2018, I.A. 8746/2018, I.A. 10960/2018

KARAN LUTHRA ….. Plaintiff
Through: Mr. Sudhanshu Batra, Sr. Advocate, Mr. Rajiv Dewan and Mr. Angad Singh, Advocates
versus

SH. M.K. SUBBA ….. Defendant
Through: Mr. Kunal Sabharwal and Mr. Raghav Mittal, Advocate.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 10959/2018 (under Order VII Rule 11 read with Section 151 CPC filed on behalf of the defendant)

1. The Application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908, (hereinafter “CPC, 1908”) has been filed on behalf of the defendant for rejection of the Suit of the plaintiff seeking Specific Performance of Agreement to Sell dated 07.06.2011, Permanent Injunction and Recovery of Possession of the suit property.
2. The defendant on service, filed the Written Statement and also filed the present application for rejection of the Suit.
3. It is submitted by the defendant in the application under Order VII Rule 11 of CPC, 1908 that the Suit of the plaintiff is barred by limitation since admittedly, the cause of action arose on 07.06.2011 while the present Suit has been filed in the year 2018. In terms of Article 54 of the Limitation Act 1963, the Suit for Specific Performance could have been filed within three years of getting “notice” that the defendant has “refused” to perform the alleged Agreement to Sell dated 07.06.2011.
4. It is submitted that various High Courts have held the word “notice”, as mentioned in second para of Article 54 of the Limitation Act, 1963, to mean and include “intimation, information, cognizance or observance.” Further, “notice” under Article 54 implies “knowledge” which may come from direct perception or as an inference reasonably arising out of several facts and circumstances. Since it is the admitted case of the plaintiff that he had paid the entire consideration in July, 2011 and when the plaintiff asked the defendant to execute the Sale Deed and get the same registered, the defendant started avoiding on the one pretext or the other, the plaintiff has admitted that he got knowledge/inference from the facts and circumstances that the defendant was refusing to perform his contractual obligation to execute the registered Sale Deed in favour of the defendant. Thus, as per the plaintiff, he had got the notice of the refusal of the defendant to execute the Sale Deed way back in 2011.
5. However, astonishingly despite having paid the entire sale consideration and notice of refusal, the plaintiff slept over his rights and filed the present Suit in February, 2018 i.e. after a period of seven years. There is no plausible explanation for the delay in filing the present Suit, despite the plaintiff having knowledge of refusal of defendant to execute the Sale Deed. It is, therefore, contended that the Suit is barred by time and is liable to be rejected.
6. The plaintiff in his Reply to the Application u/O VII Rule 11 CPC, 1908 has submitted that the Suit of the plaintiff is not barred by limitation and these aspects were duly considered by this Court in Order dated 24.05.2018 while deciding the application under Order XXXIX Rules 1 & 2 read with Section 151 CPC filed by the plaintiff and Order XXXIX Rule 4 read with Section 151 CPC, filed by the defendant. The said Order was challenged before the Division Bench of this Court, by way of an Appeal i.e. FAO(OS) 109/2018 but the Appeal has been dismissed by the Division Bench vide Order dated 09.07.2018.
7. It is further submitted by the plaintiff that the question of Limitation is a mixed question of facts and law and once the facts are disputed upon which the Limitation is to be considered, the same cannot be considered under Order 7 Rule 11 read with Section 151 CPC, 1908 or by way of preliminary issue. Reliance has been placed upon Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust and Others in Civil Appeal No.4539 of 2003 decided on 08.11.2005; Kum. Geetha D/o Late Krishna & Ors. vs. Nanjundaswamy & Ors. in Civil Appeal No.7413 of 2023 decided on 31.10.2023.
8. The plaintiff has further submitted that the defendant, Late Mr. M.K. Subba was a serial litigator along with one Ms. Jyoti Subba (defendant No. 1F), who claims to be his wife. The deceased defendant had a modus operandi of entering into Agreement to Sell with respect to property owned by him and would accept 92 to 95% of the sale consideration but delayed or refused to execute the Sale Deed thereby forcing the innocent buyers like the plaintiff, in the litigations.
9. It is, therefore, submitted that the time for performance of the Agreement to Sell was never the essence of the Agreement since the entire sale consideration of Rs.10,50,00,000/- had already been paid by the plaintiff to the defendant at the time of signing of the Agreement to Sell dated 07.06.2011. Subsequently, additional amount of Rs.1,50,00,000/- as demanded by the deceased defendant was also paid by 09.11.2013 for execution of the Sale Deed. The plaintiff submits that the total sum of Rs.12,00,00,000/- has already been paid, which is much more than the agreed consideration amount.
10. Reliance has been placed upon Rathnavathi and Anr. vs. Kavita Ganashamdas in Civil Appeals No.9940-50 of 2014 decided on 29.10.2014, to submit that in absence of date of performance, the limitation would be three years from the date of “notice of refusal to perform”, which in the present case is January 2018, when the defendant approached third parties for the sale of the suit property and thus, the suit filed on 01.02.2018 is within the period of limitation as per Article 54 Part II of the Limitation Act, 1963.
11. On merits, all the averments made in the application are hereby denied and it is submitted that the application is liable to be dismissed.
12. The Defendant has reiterated his arguments in the Rejoinder to the Reply of the plaintiff, and submitted that the suit is liable to be rejected under Order VII Rule 11 CPC, 1908 as the same is blatantly barred by Limitation in view of Article 54 of the Limitation Act 1963. It is also reiterated that the question of limitation is not always a mixed question of fact and law, and once cause of action commences, it doesn’t stop or gets interrupted. To buttress the arguments, reliance has been placed upon Venkappa Gurappa Hosur vs. Kasawwa C/o Rangappa Kulgod. (1997) 10 SCC 66; R.K. Roja vs. U.S. Rayudu and Anr. AIR 2016 SC 3282; Minu Chibber & Ors. vs. Lt. Col. (Retd.) S.S. Chibber 2014 SCC OnLine Del 7726; Narne Rama Murthy vs. Ravula Somasundaram (2005) 6 SCC 614; M/s J.M. Construction Pvt. Ltd. vs. Smt. Krishna Sachdev & Ors. I.A. No.700/2014 in CS(OS) 1409/2007; M/s J.M. Construction Pvt. Ltd. vs. Smt. Krishna Sachdev & Ors. 2017 SCC OnLine Del 8029; Ashok Malik vs. Ramesh Malik 2008 SCC OnLine Del 792; Janardhanam Prasad vs. Ramdas (2007) 15 SCC 174; T. Arivandandam vs. T.V. Satyapal and Anr. (1997) 4 SCC 467, Rajesh Dayaldas Narwani vs. Kanayalal D. Bablani 2018 SCC OnLIne Bom 1522; Ahmadsahab Abdul Mulla vs. Bibijan & Ors. (2009) 5 SCC 462; Manjunath Anandappa URF. Shivappa Hanasi vs. Tammanasa & Ors. (2003) 10 SCC 390; Urvashi Aggarwal vs. Kushagr Ansal (2020) 17 SCC 774; Fatehji & Co. v. L.M. Nagpal, (2015) 8 SCC 390; Manick Lal Seal vs. K.P. Chowdhury, 1975 SCC OnLine Cal 123; Anant Kaushal vs. Krishna Sharma 2013 SCC OnLine Del 1890; Microtek Leasing and Finance Pvt. Ltd. vs. Nisha Chhikara 2023 SCC OnLine Del 1679; Rushibhai Jagdishchandra Pathak vs. Bhavnagar Municipal Corporation 2022 SCC OnLine SC 641; Moon Mills Ltd. vs. M.R. Meher, President, Industrial Court Bombay and Ors. 1967 SCC OnLine SC 117; State of Maharashtra vs. Ramdas Shrinivas Nayak (1992) 2 SCC 463; and Chitra Kumari vs. UOI & Ors. (2001) 3 SCC 208.
13. Submissions heard and Record as well as documents perused.

14. The plaintiff has filed the present Suit for Specific Performance, Permanent Injunction and Recovery of Possession.
15. The case of the plaintiff is that the defendant required a sum of Rs.10,00,00,000/- to Rs.11,00,00,000/-, since he was in financial crisis and thus, approached the plaintiff in the month of March, 2011 for sale of property bearing khasra Nos. 179/2/1(1-05), 179/2/2(0-11), 180/2/1(2-10), 181/2/1(1-05), 180/2/2(2-02), 182/1(2-11), 183/1(2-11), with farm house, tube well, boundary wall, trees and other fitting ad fixtures, situated in village Sultanpur, Tehsil Hauz Khas (Mehrauli), New Delhi (hereinafter referred to as “Suit property”).
16. The defendant had also given photocopies of 8 Sale Deeds, 4 of which were executed in his name on 04.08.1988 and remaining four were executed in his name on 03.11.1988 from the previous owners, establishing that defendant was the recorded owner of the Suit property.
17. Further, at the time of making an offer to sell the suit property, the defendant had informed the plaintiff that he had lost the original 8 Sale Deeds in the year 2006, for which he had got registered an FIR bearing No. 30-B/2006 dated 08.12.2006, at Police Station Defence Colony, New Delhi. The defendant had also taken out publications in Times of India and Navbharat Times, by way of which the public at large was informed about the loss of the said 8 Sale Deeds of the Suit property. Thus, the certified copies of the 8 Sale Deed were duly handed over to the plaintiff along with the mutation records, revenue records, khatoni, house tax receipts and paid up electricity bills of the Suit property.
18. The plaintiff on being satisfied about the ownership of the Suit property with the defendant, entered into an Oral Agreement in March 2011, to purchase the Suit property for consideration of Rs.10,50,00,000/-.
19. A sum of Rs. 3,00,00,000/- was paid vide Cheque bearing No. 242802 dated 25.05.2011, drawn on J & K Bank, Naraina, New Delhi and Rs. 50,00,000/- were paid in cash, towards the part-payment of the sale consideration.
20. Thereafter, a formal Agreement to Sell dated 07.06.2011 was entered into between the parties for sale of the suit property and on the same day i.e. on 07.06.2011, the balance amount of Rs.7,00,00,000/- was paid by the Plaintiff vide cheque dated 07.06.2011, bearing No. 242803 drawn on J&K Bank, Naraina, New Delhi for Rs.4,00,00,000/- and an amount of Rs.3,00,00,000/- (Rupees Three Crores) was also paid by way of cheque dated 23.06.2011, bearing No. 242806 drawn on J&K Bank, Naraina, New Delhi to the Defendant.
21. Thus, the plaintiff paid the entire sale consideration of Rs. 10,50,00,000/- to the Defendant, on 07.06.2011. All the cheques were enchased by the defendant in respect of which the Bank Certificates dated 16.08.2016 and 25.08.2016 confirming this fact, has been placed on record.
22. The plaintiff has further asserted that after receiving the entire sale consideration, Receipt dated 07.06.2011 was issued in favour of the plaintiff acknowledging the receipt of the money. The defendant had also handed over the following documents to the plaintiff:
(i) General Power of Attorney (GPA) dated 07.06.2011 in favour of the plaintiff authorising him to deal with the above Suit property.
(ii) An Indemnity Bond dated 07.06.2011.
(iii) Affidavit of the defendant dated 07.06.2011 for No Objection of Mutation in the name of the plaintiff.
(iv) “No Objection Certificate” in triplicate, confirming the sale of the Suit property in favour of the plaintiff under the Delhi Land Reforms Act, 1954.
23. The plaintiff has further asserted that despite complete payment of the sale consideration and repeated requests to the defendant to execute the Sale Deed, he failed perform his obligations. Instead, the defendant made a demand of additional sum of Rs.1,00,00,000/- for the execution of the Sale Deed, which was duly paid to the defendant vide Cheque bearing No. 214534 dated 29.08.2011 drawn on J&K Bank, Naraina, New Delhi.
24. The plaintiff again approached the defendant for execution of the Sale Deed in the month of July, 2012 but again further time was sought by the defendant. Another additional demand of Rs.50,00,000/- was raised by the defendant to execute the sale deed, which was paid by the plaintiff in two instalments; first instalment of Rs.30,00,000/- was paid vide Cheque No. 297932 dated 23.07.2013 drawn on J&K Bank, Naraina, New Delhi and second instalment of Rs.20,00,000/- was paid vide Cheque bearing No. 217472 dated 09.11.2013, drawn on Union Bank, Connaught Place, New Delhi.
25. The plaintiff also sought possession of the Suit property in addition to execution of Sale Deed but the defendant was not forthcoming and the requests of plaintiff made in December, 2013 as well as in February, 2014 were also dodged.
26. The plaintiff has explained that the defendant suffered from a brain stroke on 03.04.2014 and owing to his serious condition, he was admitted in Medanta Hospital from 07.04.2014 to March, 2015. Since his health worsened, he shifted to Singapore for treatment in August, 2015. Subsequently, when the defendant partially recovered from his illness in September 2015, he again approached the defendant for execution of the Sale Deed, however, he was informed that due to a robbery committed at the Suit property on 18.09.2015, it is under investigation and hence, sought further time to execute the Sale Deed.
27. Not getting any further response, he served him with a Legal Notice dated 12.10.2015 for execution of the Sale Deed. On receiving the Legal Notice, the defendant approached him and sought more time on the ground that his daughter was getting marriage on 15.12.2015 and the functions were to be held at the Suit property. The plaintiff thereafter, again made the demand in the month of February, 2016 to October, 2017 but the defendant was continuously hospitalized as his health deteriorated and thus, was not in a position to execute the Sale Deed, till his health improved. The plaintiff again approached the defendant for execution of the Sale Deed in the month of December, 2017 but it was again delayed by the defendant.
28. The plaintiff asserted that in the month of January, 2018, he realised that the defendant was retracting from executing the Sale Deed in favour of the plaintiff as he was approaching the local property dealers for the sale of Suit property.
29. Thus, the plaintiff had filed the present Suit for Specific Performance of the Agreement to Sell dated 07.06.2011.
30. From the averments made by plaintiff, it emerges that the defendant, being in financial distress, had approached him in March, 2011 for sale of the suit property of which he was the owner, for a sale consideration of Rs.10.5 Crore. The plaintiff agreed to purchase the suit property and made a part-payment of the sum of Rs. 3.5 Crore in March, 2011 to the defendant. Subsequently on 07.06.2011 a formal Agreement to Sell along with accompanying documents namely GPA, Indemnity Bond, Affidavit and Receipt of payment of sale consideration and No Objection Ceritficate in Triplicate, were duly signed by the defendant. The balance sale consideration of Rs.7 Crores was also paid by the plaintiff through the cheques issued. Thus, according to the plaintiff himself all the necessary requirements stood concluded on 07.06.2011 itself, on execution of the Agreement to Sell.
31. The limitation for filing a suit for Specific Performance, in terms of Article 54 of the II Schedule to the Limitation Act 1963, is three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that the performance is refused.
32. Recently, in the case of A. Valliammai v. K.P Murali And Others (2023 INSC 823), the Apex court, while placing reliance on the case of Pachanan Dhara and Others v Monmatha Nath Mait (2006) 5 SCC 340, observed that Article 54 of Part II of the Schedule to the Limitation Act, 1963 stipulates the limitation period for filing a suit for specific performance as three years from the date fixed for performance. However, in alternative when no date is fixed, the limitation starts from the date when the plaintiff has notice that performance has been refused. Thus, when no specific time is fixed for performance, the courts must determine the date on which the plaintiff had notice of the defendant’s refusal to perform the contract. It was further observed that as per section 9 of the Limitation Act, 1963, once the limitation period has commenced, it continues to run, irrespective of any subsequent disability or inability to institute a suit or make an application.
33. Thus, the question which arises is what was the time frame within which the Sale Deed was required to be executed and whether the present suit for Specific Performance has been filed within the period of limitation in terms of Article 54 of Part II of the Limitation Act, 1963 ?
34. The first aspect which need consideration is whether there was any time period fixed for the performance of the Agreement to Sell dated 07.06.2011. According to the plaintiff, there was no time frame provided under the Agreement.
35. Since there was no date specified, it becomes apposite to determine the date of refusal of performance of the Agreement to Sell dated 07.06.2011, to determine if the present suit is barred by limitation.
36. Pertinently, as per the own admissions of the plaintiff, the entire sale consideration had been paid by the plaintiff at the time of execution of Agreement to Sell dated 07.06.2011. Therefore, it emerges that he was entitled to seek execution of Sale Deed from the said date itself, which implies that he could have filed a suit for Specific Performance of Agreement to Sell dated 07.06.2011 within three years in terms of Article 54 of the Limitation Act, 1963, i.e. upto 06.06.2014. However, the present suit has been filed only on 01.02.2018 which is way beyond the limitation of three years from the date of accrual of cause of action, which is 07.06.2011.
37. Further, the plaintiff has sought to extend the limitation by asserting that when he approached the defendant for execution of the Sale Deed in July, 2011, he made an additional demand of Rs. 1 Crore which was paid by the plaintiff through cheque dated 29.08.2011. Even if his assertions are accepted, the limitation of three years would have commenced from August, 2011 and would have expired after three years in August, 2014. The suit of the plaintiff is not within limitation even if calculated from August, 2011 as asserted by the plaintiff.
38. The plaintiff has further alleged that the cause of action again arose in December, 2012, when the defendant made a further demand of Rs. 50 lakhs, which was duly paid by him vide two cheques of Rs. 30 lakhs, dated 23.07.2013 and Rs.20 lakhs dated 09.11.2013. The plaintiff in support of his assertions has placed on record two Certificates from J & K Bank certifying that a sum of Rs. 30 lakhs had been credited on 23.07.2013 and a sum of Rs. 20 lakhs paid vide cheque dated 08.11.2013, have been credited o the account of M/s Subba Micro Systems Ltd. on 09.11.2013.
39. Though, the plaintiff has asserted that these two amounts totalling to Rs. 50 lakhs had been paid to the defendant, but his own documents show that it has been credited not to the account of the defendant, unlike the payment of the actual sale consideration of Rs. 10 Cr. which was made to the account of Mr. Mani Kumar Subba (Defendant), as evident from the Bank Certificates dated 16.08.2016 and 25.08.2016. There is no explanation as to why the amounts have not been credited in the account of defendant but in the account of M/s Subba Micro Systems Ltd.
40. The documents of the plaintiff do not corroborate his assertion of having paid additional Rs. 50 lakhs to the defendant in 2013 in connection with this ATS. However, even if the arguments of the plaintiff are accepted, the suit of the plaintiff would not be within limitation even if calculated from November, 2013 as asserted by the plaintiff as the limitation of three years would expire on November, 2016.
41. Further, the plaintiff has asserted that when the defendant did not come forth for execution of the Sale Deed on one pretext or the other, he served him with the Legal Notice dated 12.10.2015 for execution of Sale Deed. No written response was received from the defendant to this Notice, but according to the plaintiff, defendant had approached him and sought further time for execution of the Sale Deed. The plaintiff has further claimed that in January, 2018 he came to know that defendant had been approaching local property dealers for sale of suit property and thus, was backing out from Agreement to Sell and, therefore, he has filed the present suit.
42. It is argued on behalf of the plaintiff by the learned Counsel that the cause of action again arose in favour of the plaintiff only when defendant refused to execute the sale deed, which happened in January, 2018 and thus, the present suit which has been filed in February, 2018 is well within the limitation.
43. To appreciate these contentions on behalf of the plaintiff, it would be beneficial to refer to the Agreement to Sell dated 04.06.2011. The relevant clauses of the Agreement to Sell read as under :
“ ………..
2. That the vendor assured the vendee that the said property, hereby sold is free from all kind of encumbrances such as prior sale, mortgage, gift, will, lien, litigation, disputes, family disputes, lease, loan, acquisition, notice, charges etc. all if this fact is proved or found otherwise then the vendor shall be liable and responsible to indemnify the vendee for all the losses/ damages thus suffered by the vendee.
3. ********
4. That the vendor has left with no right, title or interest of any nature whatsoever in the said property and the same has become the absolute property of the vendee, with the right to use and enjoy the same in any manner, to raise construction thereon wand to transfer the same of any part thereof by way of sale, mortgage, gift, lease or otherwise.
5. That the vendee shall be fully entitled to get the said property transferred and mutated in his/ her own name or in the name of his/ her nominee(s) in the records of M.C.D., D.D.A. , D.V.B. and all concerned authorities. Revenue Records, etc. etc.
6. ******
7. That the vendor shall also sign and execute all documents and papers and do all acts, deeds, matters and thins and things necessary for registration of the said property in the name of the vendee or his / her nominee(s) in the records of the sub registrar or Assurance, New Delhi and / or any other authority in this regard including DDA, MCD and the Revenue Authorities.
8. That if the vendor infringes any of the terms and conditions of this agreement, the vendee shall be entitled to get this agreement performed through a court of law, by specific performance of this agreement or any other law for the time being in force, at the cost and risk of the vendor.
9. ******
10. That in the event of failure on the part of the vendor to execute the sale deed, then the vendee shall be entitled to get the same execute through the court of law by filing suit for specific performance of the contract.”

44. It is clearly discernible from the above Clauses of the Agreement to Sell, is that the document was not an Agreement to execute the Sale Deed in future, but in fact it records that the property stands sold to the plaintiff. The other covenants of the Agreement to Sell as reproduced above, also reaffirm that all the requisite documentation had been duly signed by the defendant to facilitate mutation of the suit property in the name of the plaintiff and also for execution of the Sale Deed.
45. That the property stood sold on 07.06.2011 itself is further affirmed from the Affidavit dated 07.06.2011, signed by the defendant along with the Agreement to Sell, which also states that “I have sold and transferred the farm house… to Shri Karan Luthra…”. Affidavit also records that the defendant had sold the suit property to Shri Karan Luthra (plaintiff) after receiving full and final consideration as per the terms of Agreement to Sell dated 07.06.2011 and that he had no objection if the property was mutated in the name of purchaser.
46. This Affidavit was accompanied with “Statement to be furnished in triplicate in the Registration Office for ensuring non-contravention of Section 8 of Delhi Land (Registration of Triplicate) Act, 1972”. The copy of the said Certificate in triplicate were duly signed by the defendant and handed over to the plaintiff on 07.06.2011 itself.
47. Pertinently, a GPA dated 07.06.2011 had also been executed in favour of the plaintiff, wherein he authorized the plaintiff as his lawful and legal Power of Attorney holder in respect of suit property to do the following acts:
“ ……………
7. To enter into negotiations for the sale of the said aforesaid property or any part thereof, to settle the sale consideration, to receive the sale consideration amount in his own name or otherwise, to enter into any agreement, to execute agreement, to issue receipts.
8. To sell the aforesaid property, to execute the sale deed/s or transfer deed in favor of the intending purchase/s to admit the execution thereof, to present the same before the Sub-Registrar, concerned, for registration, to file affidavits and declarations as required under Urban Land (C&R) Act, 1976, and to get the sale deed registered under his/her own.
9. To apply for and obtain the NOC permission/ clearance for the transfer of the said property by way of sale, gift. Will, mortgage, lease or otherwise, from appropriate/ competent authority for the sale of the aforesaid property, under the Provisions of Section 5(1) of the Delhi Land (Restriction on Transfer) Act, 1972.
10. To execute the supplementary deed.. Rectification Deed or any other documents in respect of the said property and to get the same registered with the competent registering authority.
11. To appear and represent me before any notary. Registry of Assurance, District Registrar, Sub-Registrar, Sub-Registrar or Assurance, Metropolitan Magistrate and other officer or officers or authority or authorities having jurisdiction and to present for registration and acknowledge and register to have registered and perfected all deeds, Instruments and writing execute and signed by the attorney In any manner concerning the said property and to execute, sign and present all kinds of suits, plaints, complaints, appeals, affidavits, etc. in proper court of law and offices.
12. ******
13. To proceed and conduct all the proceedings filed in my name and on our behalf in connection with the said property.
14. ******
15. To appoint anyone as General/ Special Attorney and to revoke the Powers conferred upon such attorney.”

48. From the cumulative appraisal of all these documents, it is evident that nothing more was required to be done by the defendant, as he had already executed all the requisite documents including a GPA and “No Objection” Certificate in favour of the plaintiff way back in 2011, to facilitate the plaintiff to get the property transferred in his name.
49. This also explains why there was no time frame provided in the Agreement to Sell for execution of the Sale Deed. It clearly implies that the cause of action existed in favour of the plaintiff since 07.06.2011 and the suit could have been filed by him only till June, 2014. It is also pertinent to observe that the cause of action did not arise from the date when the defendant refused to execute the Sale Deed but from June, 2011 itself as there was no further act required to be done by the defendant.
50. Before concluding, it may also be pointed out that essentially, an Agreement to Sell is a preliminary Agreement between the vendor and the vendee, with respect to a property, which outlines the terms and conditions which would govern the future sale of the property and it serves as a legally binding contract that safeguards the interests of both parties during the transaction’s intermediate stages. However, such an Agreement does not refer to an immediate transfer of ownership rights and thus, the buyer does not acquire a right or interest in the property by simply signing because an Agreement to Sell is not a conveyance and it does not transfer ownership rights or confers any title. It is an agreement to execute the Sale Deed in future.  
51. On the other hand, pertinently, Section 54 of Transfer of Property Act, 1882 defines “sale” as transfer of ownership in exchange for a price paid or promised or part–paid and part-promised and further provides that such transfer must take place only through a registered instrument. It is also no more res integra that a document which requires compulsory registration in terms of Section 17 and 49 of the Registration Act, 1908, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis and cannot be admitted as evidence.
52. Applying the above principles, firstly, from the express language of Agreement to Sell and other documents as mentioned above, it is abundantly clear that Agreement to Sell in fact transferred/sold the suit property to the plaintiff. It is not an Agreement to Sell but a document for the transfer of the suit property in favour of the plaintiff. Secondly, since the Agreement to Sell dated 07.06.2011 created an interest, right and tile in the suit property for a value of more than Rs.100/-, it required compulsory registration under the Registration Act, 1908 and without any such registration, the same cannot be looked into for any purpose.
53. Moreover, once the cause of action arose on 07.06.2011 itself, subsequent demands or payment of additional money would not give rise to a fresh cause of action, extending the limitation. Moreover, from the averments of plaintiff himself, it emerges that the plaintiff got “Notice” of refusal/ disinclination of defendant to execute the Sale Deed in November, 2011 when the defendant made additional demand of money. Subsequent demands made in 2013 or the Legal Notice served in 2015, were only subsequent acts and would not extend the date of commencement of limitation.
54. Thus, it is hereby concluded that the suit of the plaintiff is barred by limitation in terms of Article 54 Part II of the Limitation Act 1963.
55. The application under Order VII Rule 11 CPC, 1908 is allowed and the suit of the plaintiff is rejected.

CS(OS) 45/2018:
56. The suit stands rejected under Order VII Rule 11 CPC, 1908 along with the pending application(s), if any.

(NEENA BANSAL KRISHNA)
JUDGE

APRIL 30, 2024/RS/va

CS (OS) 45/2018 Page 1 of 19