2013 (10) TMI 1557 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the suit is barred by limitation.
2. Whether the provisions of Order 7 Rule 11 CPC are applicable.
3. Whether the plaintiff has knowledge of the alleged fraud and the right to sue.

Summary:

Issue 1: Whether the suit is barred by limitation.

The defendant No. 4 filed an application u/O 7 R 11 CPC seeking dismissal of the suit as barred by law, contending that the suit is hit by Article 56 of Schedule 1 read with Section 3 of the Limitation Act. The plaintiff sought a decree of declaration, possession, and permanent injunction regarding a flat, alleging fraud by defendant No. 2 and collusion with other defendants. The court noted that the plaintiff had knowledge of the alleged fraud and the infringement of her rights by 1993-1996, as evidenced by various communications and legal notices sent to DDA. The court held that the suit, filed in 2011, is barred by limitation u/s 3 of the Limitation Act, as the plaintiff was obliged to take steps within three years from the date when the right to sue first accrued.

Issue 2: Whether the provisions of Order 7 Rule 11 CPC are applicable.

The court emphasized that for the purpose of considering an application under Order 7 Rule 11 CPC, only the averments in the plaint and the accompanying documents are to be looked at. The court referred to judgments like Khatri Hotels Private Ltd. & Anr. Vs. Union of India and Anr., and Hardesh Ores Pvt. Ltd. Vs. M/s. Hede and Company, which clarified that the limitation period begins from the date when the right to sue first accrues. The court concluded that the plaintiff's suit is barred by law as per Order 7 Rule 11(d) CPC.

Issue 3: Whether the plaintiff has knowledge of the alleged fraud and the right to sue.

The court examined the plaint and accompanying documents, which showed that the plaintiff had knowledge of the alleged fraud and the actions of defendants No. 2 and 3 by 1993-1996. The court noted that the plaintiff was aware of the possession and sale of the flat by defendant No. 2 to defendant No. 3 and the subsequent application for conversion to freehold. The court held that the plaintiff's right to sue first accrued during this period, and the suit filed in 2011 is hopelessly barred by limitation.

Conclusion:

The court allowed the application of defendant No. 4 and dismissed the suit as barred by limitation. The court also noted that the plaintiff's attempt to claim fraud and draft the plaint in a manner to camouflage the real cause of action was a misuse of law, rendering the plaint vexatious and meritless. All other pending applications were disposed of accordingly.