- (1.) Appellant calls in question legality of the judgment rendered by a Division Bench of the Calcutta High Court holding that the plaint filed by the appellant was to be rejected in terms of Order VI! Rule 11 (d) of the Code of Civil Procedure, 1908 (in short the 'cpc') as the suit was barred by limitation. The order passed by learned Single judge holding that said provision was not applicable to the facts of the case was set aside.
(2.) Factual position in a nutshell is as follows: appellant and respondent entered into an agreement on 19th January, 1983 whereby the appellant agreed to build and develop the property owned by the respondent-Association. A detailed agreement was accordingly executed on 19th January, 1983 which, inter alia, provided for regulating relationship between the parties. Para 13 of the agreement stipulated that after construction of the entire building and issuance of final completion certificate by two Chartered Engineers the appellant shall by a notice to the respondent-Association call upon it to execute a registered lease deed in its favour or in favour of its nominee whereby a lease of the 2nd floor, 3rd floor, 4th floor, 5th floor and the roof (collectively described as the demised premises) was to be granted. Several stipulations were provided in detail. It is not in dispute that the building was completed in the year 1984. Appellant claimed to have written a letter dated 4.11.1984 calling upon the respondent to execute the lease deed in its favour. Admittedly no lease deed has been executed. The suit was filed in July, 1990, inter alia, with the following prayers: "(A) Declaration that the plaintiff alone is entitled to let out the ground floor, 2nd, 3rd, 4th, 5th floor and the roof of the said premises shortly referred to have as the "builders Block' and realize all rents, issues and profits therefrom without any interference by the defendant. (b) Perpetual injunction restraining the defendant from executing any lease or other documents in favour of persons in occupation of any portion of the builders block referred to in prayers (a) or in relation to any part or portion of the said block in consideration of any sum or from realizing any rent issues or profit therefrom incumbent or otherwise deal with and exercise any control or dominance over the same; (c) Decree for Rs. 18,84,500/- (Rupees Eighteen lacs eighty four thousand five hundred) only as pleaded in paragraphs 18 and 25 of the plaint. (d) Alternatively, an account of what is due and payable to the plaintiff by the defendant in respect of all dealings and transactions by the defendant with the person or persons in occupation of the builders block of the said premises and a decree for such sum as may be found due and payable after taking such account; (e) All further proper accounts enquiries and directions; (f) Decree for specific performance of the Development Agreement dated 19th January, 1983 be granted against the defendant in terms of clause 16 of the said Agreement requiring the defendant to execute deed of Lease for a period of 51 years on terms and conditions contained in the said Clause; (g) Mandatory injunction directing the defendant to execute and register a Deed of Lease, in favour of the plaintiff and/or its nominee or nominees in terms of Clause 18 of the Development Agreement dated 19th January, 1983 in respect of the Builders Block, being the 2nd, 3rd, 4th, 5th floor and roof as referred to above; (h) In the event of the defendant failing to execute, register and deliver deed of Lease, the Registrar, original Side of this Hon'ble Court be directed to settle execute and register necessary Deed of Lease in respect of the Builders Block as referred to above for and on behalf of the defendant. (i) Decree for Rs. 80 lacs as damages as mentioned in paragraph 12 above in addition to a decree for specific performance; 0) Alternatively, an enquiry, into loss and damage suffered by the plaintiff and a decree for such sum as may be found due and payable upon such enquiry; (k) In the event decree for specific performance as prayed for cannot be granted, a decree for damages in terms of specific performance be granted against the defendant at such rate or rates and on such basis as this Hon'ble Court may deem fit and proper; (l) Costs; (m) Further or other reliefs. "
(3.) An application was filed by the respondent under Order VII Rule 11 of CPC praying for rejection of the plaint on the ground that the suit as is apparent from the statement contained in the plaint itself was barred by limitation in the sense that the suit was filed beyond the period prescribed in the Indian limitation Act, 1963 (in short 'limitation act').;