EMMANUEL RAPHAELversusIQBAL AHMAD ABDUL RAZZAQ SIDDIQUI THR C A AIJAZ AHMED ABDUL RAZZAQ SIDDIQUI

                                                                  18-CRA531-2026.DOC

                                                                               Santosh

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION


                             CIVIL REVISION APPLICATION NO. 531 OF 2026

                   Emmanuel Raphael                                    ...Applicant
                                     Versus
                   Iqbal Ahmad Abdul Razzaq Siddiqui
                   Through C A Aijaz Ahmed Abdul Razzaq
                   Siddiqui                                          …Respondent

                   Mr. Vishal Kanade, a/w Akshay Shah and Harsh Shah, for the
                         Applicant.

                                                  CORAM : N. J. JAMADAR, J.
                                                  DATED : 6th OCTOBER, 2026

SANTOSH            Order:-
SUBHASH
KULKARNI

Digitally signed
by SANTOSH
SUBHASH
KULKARNI
                   1.   Heard the learned Counsel for the applicant.
Date: 2026.10.08
17:01:19 +0530




                   2.   This revision application is directed against an order dated

                   19th August, 2026 passed by the learned Judge, City Civil Court,

                   in Notice of Motion No.3756/2024, whereby the said Notice of

                   Motion taken out by the applicant-defendant for rejection of the

                   plaint under the provisions of Order VII Rule 11 of the Code of

                   Civil Procedure, 1908 (“the Code”), came to be dismissed.

                   3.   The respondent-plaintiff has instituted a suit seeking a

                   declaration that the Memorandum of Understanding (“MoU”)

                   dated 30th May, 2011, whereunder the applicant-defendant

                   agreed to sell flat No.8/6 situated in Assisi Co-operative

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Housing Society Ltd., (“the suit flat”) to the plaintiff for a

consideration of Rs.24,00,000/- was still valid, subsisting and

enforceable in law and for a decree of specific performance of the

said contract by accepting the balance consideration of

Rs.12,00,000/-.

4.     The defendant took out the Notice of Motion seeking the

rejection of the plaint on the ground that the suit was ex facie

barred by law of limitation as, in accordance with the terms of

the MoU, the contract was to be performed within a period of

three months, i.e. by 30th August, 2011, and, thus, the period of

limitation expired on 30th August, 2014.

5.     The learned Judge, City Civil Court, was not persuaded to

accede to the submission on behalf of the defendant as the

question as to whether the suit was barred by law of limitation,

required investigation into facts and, thus, it appeared to be a

mixed question of facts and law.

6.     Mr. Kanade, the learned Counsel for the applicant, took

the Court through the terms of the MoU, especially Clause 9

thereof under which it was stipulated that the said agreement

may be cancelled or terminated by the vendor if he failed to

obtain the NOC from the housing society for the transfer of the

suit   flat,   and   that   the   vendor   would   return   the   part

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consideration alongwith interest at the rate of 15% per month.

Attention of the Court was also invited to an undertaking dated

30th May, 2011, executed by the applicant-vendor, to refund the

said amount of Rs.12,00,000/- alongwith interest at the rate of

15% per month in the event of his failure to obtain the NOC for

transfer from the housing society.      Thus, Mr. Kanade would

urge, the case in hand was that of “date fixed” for the

performance of the contract, and, therefore, would fall within

the first part of Article 54 of the Limitation Act, 1963.

7.    I am afraid to accede to the aforesaid submissions. It is

trite, at the stage of consideration of the prayer for rejection of

the plaint only the averments in the plaint and the documents

annexed thereto are required to be read and that too in a

meaningful and not formalistic manner. Ordinarily, and in a

majority of cases, the question of limitation is a mixed question

of law and facts. However, where the suit is ex facie barred by

law of limitation, the Court may justifiably exercise the power

under Order VII Rule 11 of the Code to nip in the bud a fruitless

and vexatious litigation. (Dahiben vs. Arvindbhai Kalyanji

Bhanusali (Gajra) dead through Legal Representatives and




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others1 and Shri Mukund Bhavan Trust and others vs. Shriman

Chhatrapati Udayan Raje2).

8.   In the case at hand, a meaningful reading of the plaint as

a whole, especially paragraphs 9 and 10 thereof, would indicate

that as late as 19th December, 2019, the defendant assured the

plaintiff that he would execute the sale deed and register the

instrument or refund the part consideration of Rs.12,00,000/-

alongwith interest at the rate of 18% per annum. In fact, a sum

of Rs.3,00,000/- was paid by the defendant to the plaintiff on

16th January, 2020, and allegedly the defendant had agreed to

refund the balance amount alongwith interest at the rate of 18%

per annum by the end of January 2020. Having realized that

the defendant had no intent to refund the amount, the plaintiff

claimed to have instituted the suit.

9.   The aforesaid assertions coupled with the fact that in the

month of January 2020, part amount was allegedly refunded by

the defendant, prima facie, justify an inference that, the

defendant had not terminated the contract in accordance with

the stipulation in Clause 9 of the MoU as late as January, 2020,

though the said clause gave option to the defendant to terminate

the contract if he failed to obtain NOC from the housing society.

1    (2020) 7 Supreme Court Cases 366.
2    Civil Appeal/14807/2024, dtd.20/12/2024.
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10.   If viewed through the aforesaid prism, the view of the trial

Court that, in the facts of the case, the aspect of limitation was

a mixed question of facts and law appears justifiable.

11.   Mr.    Kanade     attempted   to    salvage    the   position   by

canvassing a submission that there was no prayer for damages

in the suit.     Suffice to note, whether the plaintiff would

eventually    succeed    in   obtaining     a     decree   for   specific

performance is not the touchstone on which a prayer for

rejection of the plaint can be appreciated. Moreover, in a suit

for specific performance the plaintiff may claim damages in

addition to the decree for specific performance at any stage.

12.   For the forging reasons, this Court does not find that the

impugned order suffers from any jurisdictional error or material

irregularity in the exercise of jurisdiction.

13.   The application, thus, stands rejected.



                                                [N. J. JAMADAR, J.]




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