Kerala High Court
Basheer Haji vs Musthafa Moosa on 14 July, 2026
Author: Sathish Ninan
Bench: Sathish Ninan
2026:KER:51578
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 14TH DAY OF JULY 2026 / 23RD ASHADHA, 1948
RFA NO. 389 OF 2019
AGAINST THE JUDGMENT DATED 19.12.2018 IN OS NO.254 OF 2012 OF
ADDITIONAL SUB COURT, THALASSERY
-----
APPELLANT/DEFENDANT NO.2:
BASHEER HAJI,
S/O.POKKER HAJI, AGED 52, NIDUMBRATH HOUSE,
P.O.NADAPURAM, NADAPURAM AMSOM, CHALAPPURAM DESOM.
BY ADV SMT.SHAMEENA SALAHUDHEEN
RESPONDENTS/PLAINTIFF AND DEFENDANTS 1, 3 TO 15:
1 MUSTHAFA MOOSA, S/O.MOOSA HAJI, AGED 60 YEARS,
BUSINESS, RESIDING AT THANA, KANNUR,
(FOUSIYAS, THANA, KANNUR-670 012).
2 RAVEENDRANATHA PAI,S/O.SREENBIVASA PAI, AGED 82 YEARS,
BUSINESS, RESIDING AT SREENIVAS, P.O.THALASSERY,
THALASSERY TALUK-670 101.
3 N.ASHARAF, S/O.POCKER HAJI, AGED 49 YEARS, BUSINESS,
NIDUMBRATH HOUSE, VELLOOR AMSOM ,CHALAPPURAM DESOM,
P.O.NADAPURAM, VATAKARA TALUK,
KOZHIKODE DISTRICT-673 504.
4 SHAHINA,W/O.N.BASHEER, AGED 44 YEARS, NIDUMBRATH,
VELLOOR AMSOM, CHALAPPURAM DESOM, P.O.NADAPURAM,
VATAKARA TALUK, KOZHIKODE DISTRICT-673 504.
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RFA NO. 389 OF 2019 -2-
5 K.P.RASHEED,S/O.IBRAHIM, AGED 38 YEARS, BUSINESS,
K.P.HOUSE, VADAYAM AMSOM DESOM, P.O.VADAYAM,
VATAKARA TALUK, KOZHIKODE DISTRICT-673 507.
6 KUNHAMMED,S/O.ABDULLA HAJI, AGED 67 YEARS, BUSINESS,
KIZHAKKAYIL, VELLOOR AMSOM, CHALAPPURAM DESOM, P.O.
VELLOOR, VATAKARA TALUK, KOZHIKODE DISTRICT-673 503.
7 C.V.KADEESHA, [DIED; LRS IMPLEADED]
D/O.KUNHALI HAJI, AGED 56 YEARS, CHERUVALATH HOUSE,
VELLOOR AMSOM, CHALAPPURAM DESOM, P.O.PERODA,
VATAKARA TALUK, KOZHIKODE DISTRICT-673 504.
8 O.P.AHAMED RIYAS,S/O.ABDULLA, AGED 31 YEARS,
BUSINESS, ONAPARAMBATH HOUSE, CHERUMOTH AMSOM,
VALAYAM DESOM, P.O.CHERUMOTH, VATAKARA TALUK,
KOZHIKODE DISTRICT-673 517.
9 ABDULLA,
ONAPARAMBATH HOUSE, CHERUMOTH AMSOM, VALAYAM DESOM,
P.O.CHERUMOTH, VATAKARA TALUK,
KOZHIKODE DISTRICT-673 517.
10 SUMATHI R.PAI,
SREENIVAS, VADIKKAKAM, P.O.THALASSERY-670 101.
11 S.MUKUNDA PAI, [DIED]*1
AISWARYA HOUSE, PALLIKKUNNU ROAD, VADIKKAKAM P.O.,
THALASSERY-670 101.
*1[IT IS RECORDED THAT LEGAL REPRESENTATIVES OF DECEASED
R11 ARE R13 & R14 VIDE ORDER DATED 11/07/23.]
12 R.NARENDRANATH PAI,
SREENIVAS HOUSE, CHETTAMKUNNU, HOUSE NO.9/134,
P.O.THALASSERY-670 101.
13 M.SHOBA PAI,
AISWARYA HOUSE, CO-OPERATING HOUSING COLONY,
VADIKKAKAM P.O., THALASSERY-670 101.
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RFA NO. 389 OF 2019 -3-
14 N.SREENIVASA PAI,
AISWARYA HOUSE, CO-OPERATING HOUSING COLONY,
VADIKKAKAM P.O., THALASSERY-670 101.
15 R.VASANTHA PAI,
SREENIVAS HOUSE, PALLIKKUNNU ROAD,
P.O.THALASSERY-670 101.
*2 ADDL. RESPONDENTS 16 TO 21
ADD. R16 SUNEER,
S/O. ANDRU HAJI, AGED 41, CHERUVALATH HOUSE,
VELLUR AMOSM, CHALAPPURAM DESOM,VELLUR POST, VATAKARA,
KOZHIKODE-673504.
ADD. R17 SAHEED,
S/O. ANDRU HAJI, AGED 39, CHERUVALATH HOUSE,
VELLUR AMOSM, CHALAPPURAM DESOM,VELLUR POST, VATAKARA,
KOZHIKODE - 673504.
ADD. R18 SUBAIR,
S/O. ANDRU HAJI, AGED 37, CHERUVALATH HOUSE,
VELLUR AMOSM, CHALAPPURAM DESOM,VELLUR POST, VATAKARA,
KOZHIKODE-673504.
ADD. R19 SAMEER,
S/O. ANDRU HAJI, AGED 35, CHERUVALATH HOUSE,
VELLUR AMOSM, CHALAPPURAM DESOM,VELLUR POST, VATAKARA,
KOZHIKODE -673504.
ADD. R20 ZEENATH, D/O ANDRU HAJI, AGED 33, CHERUVALATH HOUSE,
VELLUR AMOSOM, CHALAPPURAM DESOM, VALLUR POST,
VATAKARA, KOZHIKODE-673504.
ADD. R21 SHAMSEER, S/O ANDRU HAJI, AGED 31, CHERUVALATH HOUSE,
VELLUR AMOSM, VHALAPPURAM DESOM, VELLUR POST, VATAKARA,
KOZHIKODE-673504.
*2[LEGAL REPRESENTATIVES OF THE DECEASED 7TH RESPONDENT
ARE IMPLEADED AS ADDITIONAL RESPONDENTS 16 TO 21 VIDE
ORDER DATED 08.08.2025 IN IA 2/2024]
2026:KER:51578
RFA NO. 389 OF 2019 -4-
BY ADVS.
SRI.ABDUL RAOOF PALLIPATH
SMT.K.S.SANGEETHA
SHRI.P.B.KRISHNAN (SR.)
SHRI.M.K.SUMOD
SHRI.E.MOHAMMED SHAFI
SRI.K.M.FIROZ
SMT.M.SHAJNA
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
14.07.2026, ALONG WITH RFA.539/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2026:KER:51578
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 14TH DAY OF JULY 2026 / 23RD ASHADHA, 1948
RFA NO. 539 OF 2019
AGAINST THE JUDGMENT DATED 19.12.2018 IN OS NO.254 OF 2012 OF
ADDITIONAL SUB COURT, THALASSERY
-----
APPELLANT/PLAINTIFF IN O.S.:
MUSTHAFA MOOSA,
S/O.MOOSA HAJI, AGED 60, BUSINESS, RESIDING AT THANA,
KANNUR DISTRICT - 670 101.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.ABDUL RAOOF PALLIPATH
SHRI.E.MOHAMMED SHAFI
RESPONDENTS/DEFENDANTS 1 & 2 AND SUPPLEMENTAL DEFENDANTS 3 TO 15
IN OS:
1 RAVEENDRANATHA PAI,
S/O SREENIVASA PAI, AGED 84,
RESIDING AT 'SREENIVAS', P.O.THALASSERY,
THALASSERY TALUK, KANNUR DISTRICT - 670 101.
2 BASHEER HAJI,
S/O.POKKER HAJI, AGE NOT KNOWN, NIDUMBRATH HOUSE,
P.O.NADAPURAM, NADAPURAM AMSOM, CHALAPPURAM DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 504.
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RFA NO. 539 OF 2019 -2-
3 N.ASHRAF,
S/O.POKKER HAJI, AGED 49, BUSINESS, NIDUMBRATH HOUSE,
VELLUR AMSOM, CHALAPPURAM DESOM, P.O.NADAPURAM,
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 504.
4 SHAHINA,
W/O.N.BASHEER, AGED 46, NIDUMBRATH HOUSE, VELLUR AMSOM,
CHALAPPURAM DESOM, P.O.NADAPURAM, VATAKARA TALUK,
KOZHIKODE DISTRICT - 673 504.
5 K.P.RASHEED,
S/O.IBRAHIM, AGED 39, BUSINESS, K.P.HOUSE,
VADAYAM AMSOM, DESOM, P.O.VADAYAM, VATAKARA TALUK,
KOZHIKODE DISTRICT - 673 504.
6 KUNHAMMAD,
S/O.ABDULLA HAJI,AGED 68,BUSINESS, KIZHAKKAYIL,
VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR, VATAKARA
TALUK, KOZHIKODE DISTRICT - 673 503.
7 C.V.KADEESHA, [DIED; LRS IMPLEADED]
D/O.KUNHALI HAJI, AGED 57, CHERUVALATH HOUSE,
VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR, VATAKARA
TALUK, KOZHIKODE DISTRICT - 673 503.
8 O.P.AHAMED RIYAS,
S/O.ABDULLA, AGED 33, BUSINESS, ONAPARAMBATH HOUSE,
CHERUMOTH AMSOM, VALAYAM DESOM, P.O.CHERUMOTH,
VATAKARA TALUK, KOZHIKODE DISTRICT - 673 517.
9 ABDULLA,
ONAPARAMBATH HOUSE, CHERUMOTH AMSOM, VALAYAM DESOM,
P.O.CHERUMOTH, VATAKARA TALUK,
KOZHIKODE DISTRICT - 673 517.
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RFA NO. 539 OF 2019 -3-
10 SUMATHI R.PAI,
'SREENIVAS', VADIKKAKAM, P.O.THALASSERY,
THALASSERY TALUK, KANNUR DISTRICT - 670 101.
11 S.MUKUNDA PAI, [DIED; LRS RECORDED]*1
AISWARYA HOUSE, PALLIKKUNNU ROAD, VADIKKAKAM,
P.O.THALASSERY,THALASSERY TALUK,
KANNUR DISTRICT - 670 101.
*1[IT IS RECORDED THAT R11 DIED AND THE LEGAL HEIRS OF
THE R11 ARE ALREADY IN THE PARTY ARRAY AS ADDL.R12 TO
ADDL.R15 VIDE ORDER DATED 22/11/21 IN IA 1/2021 IN RFA
539/19]
12 R.NARENDRANATH PAI,
SREENIVAS HOUSE, CHETTAMKUNNU, VADIKKAKAM,
P.O.THALASSERY, THALASSERY TALUK,
KANNUR DISTRICT - 670 101.
13 M.SHOBA PAI,
AISWARYA HOUSE, CO-OPERATIVE HOUSING COLONY,
VADIKKAKAM, P.O. THALASSERY, THALASSERY TALUK,
KANNUR DISTRICT - 670 101.
14 N.SREENIVAS PAI,
AISWARYA HOUSE, CO-OPERATIVE HOUSING COLONY,
VADIKKAKAM, P.O.THALASSERY, THALASSERY TALUK,
KANNUR DISTRICT - 670 101.
IT IS RECORDED THAT R13 & R14 ARE THE LEGAL
REPRESENTATIVES OF THE DECEASED R11 VIDE ORDER DATED
30/1/24. IN IA 1/21
15 R.VASANTHA PAI,
SREENIVAS HOUSE, PALLIKKUNNU ROAD, P.O.THALASSERY,
THALASSERY TALUK, KANNUR DISTRICT - 670 101.
*2 ADDL. R16 TO R21 IMPLEADED
ADDL. R16 SUNEER
S/O.ANDRU HAJI, AGED 40 YEARS, RESIDING AT CHERUVALATH
HOUSE, VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR,
VATAKARA KOZHIKODE - 673504.
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RFA NO. 539 OF 2019 -4-
ADDL. R17 SAHEED
S/O.ANDRU HAJI, AGED 38 YEARS, RESIDING AT CHERUVALATH
HOUSE, VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR,
VATAKARA, KOZHIKODE - 673504.
ADDL. R18 SUBAIR
S/O.ANDRU HAJI, AGED 36 YEARS, RESIDING AT CHERUVALATH
HOUSE, VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR,
VATAKARA, KOZHIKODE - 673504
ADDL. R19 SAMEER
S/O.ANDRU HAJI, AGED 34 YEARS, RESIDING AT CHERUVALATH
HOUSE, VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR,
VATAKARA, KOZHIKODE - 673504
ADDL. R20 ZEENATH
D/O.ANDRU HAJI, AGED 32 YEARS, RESIDING AT CHERUVALATH
HOUSE, VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR,
VATAKARA KOZHIKODE - 673504.
ADDL. R21 SHAMSEER,
S/O.ANDRU HAJI, AGED 30 YEARS, RESIDING AT CHERUVALATH
HOUSE, VELLUR AMSOM, CHALAPPURAM DESOM, P.O.VELLUR,
VATAKARA KOZHIKODE - 673504
*2[THE LEGAL REPRESENTATIVES OF THE DECEASED R7 ARE
IMPLEADED AS ADDL. RESPONDENTS 16 TO 21 AS PER ORDER
DATED 30/01/2024 IN IA 1/2021]
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SMT.SHAMEENA SALAHUDHEEN
SRI.K.M.FIROZ
SRI.ASHWIN SATHYANATH
SMT.M.SHAJNA
SHRI.ANISH ANTONY ANATHAZHATH
SMT.S.SIMY
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
14.07.2026, ALONG WITH RFA.389/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2026:KER:51578
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. Nos.389 & 539 of 2019
= = = = = = = = = = = = = = = = = =
Dated this the 14th day of July, 2026
J U D G M E N T
Sathish Ninan, J.
The suit for return of advance sale consideration and
damages, was decreed for return of advance sale consideration. To
the extent aggrieved, the plaintiff and the second defendant are
in appeal in the respective appeals.
2. Ext.A1 agreement dated 16.05.2011, was entered into
between the plaintiff on the one part and defendants 1 and 2 on
the other. Under Ext.A1, defendants 1 and 2 agreed to sell the
plaint schedule property to the plaintiff. The total sale
consideration fixed was ₹ 17,60,00,000/-. The consideration
payable included, a conveyance by the plaintiff to the defendant
in respect of a property worth ₹ 10,80,00,000/-, and the balance
amount of ₹ 6,80,00,000/- to be paid.
3. According to the plaintiff, at the time of entering into
Ext.A1 there were subsisting liabilities over the plaint schedule
property with various Banks amounting to ₹ 2,92,00,000/-. An
amount of ₹ 72 lakhs already received by the defendants from a
third party was to be adjusted towards the consideration. The
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plaintiff alleges that pursuant to Ext.A1 an amount of
₹ 2,92,00,000/- was paid by the plaintiff to the defendant to
wipe off the bank liabilities. The liabilities were cleared and
the title deeds were got returned from the banks. Exts.A8 to A22
are the title deeds so handed over by the defendants to the
plaintiff. Thus, the balance sale consideration payable by the
plaintiff was ₹ 2,16,00,000/-.
4. Consequent on the delay on the part of the defendants to
perform Ext.A1, the plaintiff had to pay an excess amount of ₹ 45
lakhs to acquire the property agreed to be exchanged to the
defendants. The defendants retracted from the contract. The
plaintiff had purchased stamp papers worth ₹ 27 lakhs to prepare
the conveyance to be executed in performance of Ext.A1 and had
suffered loss of ₹ 5,00,000/- under the head. Accordingly, the
suit was filed for return of the advance sale consideration of
₹ 2,92,00,000/- with interest and an amount of ₹ 50 lakhs as
damages.
5. Pending the suit, supplemental defendants 3 to 15 were
impleaded, they being co-owners of the property.
6. The first defendant filed written statement contending
that he was/is ready and willing to perform Ext.A1 in respect of
his share of the property and that the suit for return of advance
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2026:KER:51578
-: 3 :-
amount and damages is not maintainable.
7. The second defendant contended that it was the plaintiff
who committed breach of contract and that he is entitled to
adjust ₹ 50 lakhs from the advance amount paid towards damages
suffered by him.
8. Additional Defendants 3 to 8 filed written statement
contending that they are not signatories to Ext.A1 and it was not
executed by defendants 1 and 2 on their behalf. It was contended
that neither they nor their share in the property is liable for
the plaint claim.
9. Defendants 10 to 15 filed written statement contending
that though they are not signatories to Ext.A1 they are willing
to convey their shares over the property in terms of Ext.A1.
Their liability for the plaint claim was denied.
10. The trial court found that defendants 3 to 15 being not
signatories to Ext.A1, they are not liable for the plaint claim.
It was also found that the plaintiff failed to prove the damages.
A decree was granted against defendants 1 and 2 for return of the
advance sale consideration.
11. The points that arise for determination in these appeals
are: –
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(i) Are defendants 3 to 15 liable for the plaint claim namely, return of advance
and damages?
(ii) Is the plaint claim as against defendants 3 to 15 barred by limitation?
(iii) Is the plaintiff entitled for the damages claimed?
(iv) Is the second defendant entitled to adjust any amounts towards damages?
(v) Does the decree and judgment of the trial court warrant any interference?
12. We have heard Sri.P.B.Krishnan and Sri.T.Krishnanunni,
the learned Senior Counsel, and Sri.K.M.Firoz and Smt.Shameena
Salahudheen, the learned counsel, for the respective parties.
13. The main contention canvassed before us by the plaintiff
was with regard to the liability of defendants 3 to 15 for the
plaint claim. Much reliance is placed by the learned senior
counsel for the plaintiff on the averments in the written
statement of defendants 3 to 8 that Ext.A1 was executed with
their knowledge and consent. Ext.A1 is thus binding on them, it
is contended. The relevant pleading read thus: –
“….. Actually, the memorandum of understanding was executed with the
knowledge and consent of these defendants with the specific understanding that
these will also affix ‘their’ signature in the new memorandum of understanding
as and when executed. It is on account of the wilful latches of the plaintiff, the
understanding could not be fulfilled. The property agreed to be exchanged by not
in the legal possession and enjoyment of the plaintiff. Actually, it is the plaintiff,
who cheated, duped and deceived these defendants. These defendants suffered
substantial damage and loss on account of the non-performance by the
plaintiff…..”
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Here, certain other portions of their pleading also need
consideration. It reads:
“These defendants specifically deny that the memorandum of understanding
dated 16-5–2011 was executed by the defendants 1 and 2 for and on behalf of
them also……..It is true that these defendants are also the co-owners of the
property. These defendants are not liable and responsible to the plaintiff to pay
the amount as claimed in the suit. These defendants did not sign in the
memorandum of understanding. These defendants undivided share in the
property cannot be held liable and responsible and cannot be proceeded in the
suit.”
14. Admittedly, defendants 3 to 15 are not signatories to
Ext.A1. Ext.A1 does not indicate that it was entered into by
defendants 1 and 2 for and on behalf of Defendants 3 to 15. The
defendants 3 to 15 were originally not parties to the suit. They
were impleaded only on 09.01.2015 as per orders on I.A. 17 of
2014. The plaint, as it stands, does not contain any averment
that Ext.A1 was entered into by defendants 1 and 2 on behalf of
defendants 3 to 15 also. Though as per I.A.18 of 2014 amendment
of the plaint was sought and was allowed, it was not carried out.
Consequence under Order VI Rule 18 follow, and the plaint would
remain in its unamended form. Admittedly the money was paid to
defendants 1 and 2 only. The denial of liability is further
repeated in the written statement.
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15. Therefore, the afore mentioned averments in the written
statement alone are not sufficient to make defendants 3 to 8
liable for the advance sale consideration and for damages.
16. Similar is the claim against defendants 10 to 15 also.
The plea in their written statement relied on by the plaintiff
reads thus: –
“Though these defendants were not parties to the agreement, these defendants
are ready and willing to execute the document and to transfer their respective
shares as per the terms of the agreement.”
We find that, for the very same reasons stated earlier to negate
the claim against defendants 3 to 8, the claim against defendants
10 to 15 are also liable to be dismissed.
17. The learned senior counsel for the appellant would argue
that, at any rate, defendants 3 to 15 are liable for the plaint
claim under Section 70 of the Contract Act. Utilising the advance
sale consideration, the liability over the Bank was cleared.
Defendants 3 to 15 also were benefited by it. Therefore, they are
bound to compensate the plaintiff, it is claimed. Reliance is
placed on the judgments of the Apex Court in State of W..B. v. M/s
B.K.Mondal and Sons (AIR 1962 SC 779) and Mulamchand v. State of Madhya Pradesh (AIR 1968 SC
1218), in support of the contention.
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18. Section 70 of the Contract Act embodies the principle of
unjust enrichment. The Section reads thus:
“Obligation of person enjoying benefit of non-gratuitous act. — Where a person
lawfully does anything for another person, or delivers anything to him, not
intending to do so gratuitously, and such other person enjoys the benefit thereof,
the latter is bound to make compensation to the former in respect of, or to restore,
the thing so done or delivered.”
In terms of the Section, an act done for another is liable to be
compensated if, (i) It was lawfully done, (ii) It was not gratuitous, and (iii) The other
person enjoyed its benefit. In State of W.B. v. M/s B.K.Mondal and Sons (supra) the Apex
Court held: –
“It is plain that three conditions must be satisfied before this Section can be
invoked. The first condition is that a person should lawfully do something for
another person or deliver something to him. The second condition is that in
doing the said thing or delivering the said thing he must not intend to act
gratuitously; and the third is that the other person for whom something is done
or to whom something is delivered must enjoy the benefit thereof. When these
conditions are satisfied S.70 imposes upon the latter person the liability to make
compensation to the former in respect of, or to restore, the thing so done or
delivered. In appreciating the scope and effect of the provisions of this Section it
would be useful to illustrate how this Section would operate. If a person delivers
something to another it would be open to the latter person to refuse to accept the
thing or to return it; in that case S.70 would not come into operation. Similarly,
if a person does something for another it would be open to the latter person not
to accept what has been done by the former; in that case again S.70 would not
apply. In other words, the person said to be made liable under S.70 always has
the option not to accept the thing or to return it. It is only where the voluntarily
accepts the thing or enjoys the work done that the liability under S.70 arises.”
“….. All that S.70 provides is that if the goods delivered are accepted or the work
done is voluntarily enjoyed then the liability to pay compensation for the
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enjoyment of the said goods or the acceptance of the said work arises. Thus,
where a claim for compensation is made by one person against another under
S.70, it is not on the basis of any subsisting contract between the parties, it is on
the basis of the fact that something was done by the party for another and the
said work so done has been voluntarily accepted by the other party. That broadly
stated is the effect of the conditions prescribed by S.70.”
The principle was reiterated in Mulamchand v. State of Madhya Pradesh (AIR 1968
SC 1218).
19. The contention based on Section 70 of the Contract Act
is urged for the first time in this appeal. No such contention
was raised in the trial court. In M/s Hansaraj Gupta & co. v. Union of India
(AIR 1973 SC 2724), the Apex Court referred to its earlier judgment in
Piloo Dhunjishaw Sidhwa v. Municipal Corpn. of the City of Poona (1970 (3) SCR 415) , which
held that the Section could be canvassed even in appeal; but, it
was held that necessary foundation must have been laid in the
pleadings and the ingredients proved. It was also clarified that,
“Section 70 is not intended to entertain claims for compensation made by persons
who officiously interfere with the affairs of another or who impose on others services
not desired by them”.
20. At paragraph 5 of the plaint, it is pleaded that using
part of the advance sale consideration paid by the plaintiff, the
defendants had wiped off the liability with Gramin Bank, got
return of the title deeds and handed over to the plaintiff.
Defendants 3 to 15 being co-owners of the property had its
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benefit and hence are to compensate the plaintiff, is the
argument. Evidently, even by the averments only a part of the
advance was utilised; the quantum remaining unproved. The
ingredients of Section 70 have neither been pleaded nor proved.
21. Now, even taking it to be that the claim under Section
70 of the Contract Act could be raised, still, we find that the
suit is time-barred against defendants 3 to 15. When the claim is
under Article 70, the period of limitation is governed by the
residuary article, Article 113 of the Limitation Act, 1963 [See:
Kora Lukose v. Chacko Uthuppan, 1957 KLT 51(F.B)] . Under Article 113, time
begins to run when the “right to sue accrues”. When payment is
claimed to be made in terms of Section 70 of the Contract Act,
the right to claim arises on such payment. That is, time begins
to run from the date of payment. Here though the exact date of
payment is not available, it is claimed to have been paid before
25.06.2011. Though the suit was filed on 01.06.2012, it was
against defendants 1 and 2 alone. The additional defendants 3 to
15 were impleaded only on 09.01.2015.
22. Section 21 of the Limitation Act provides that, when a
new plaintiff or defendant is added, as regards such person, the
suit shall be deemed to have been instituted only when he was so
made a party. The proviso thereto gives a discretion to the
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court, on being convinced that the omission to include such a
party was due to a mistake made in good faith, to direct that the
suit as regards such person shall be deemed to have been
instituted on any earlier date. The Section reads thus: –
“21. Effect of substituting or adding new plaintiff or defendant. — (1) Where after
the institution of a suit, a new plaintiff or defendant is substituted or added, the suit
shall, as regards him, be deemed to have been instituted when he was so made a
party:
Provided that where the Court is satisfied that the omission to include a new
plaintiff or defendant was due to a mistake made in good faith it may direct that the
suit was regards such plaintiff or defendant shall be deemed to have been instituted
on any earlier date.”
Similar is the provision in Order 1 Rule 10(5) of the Code of
Civil Procedure, the same reads thus :-
“(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877),
section 22, the proceedings as against any person added as defendant shall be
deemed to have begun only on the service of the summons.”
23. In the present case though defendants 3 to 15 were
impleaded on 09.01.2015, invocation of the proviso to Section
21(1) of the Limitation Act was not sought for by the plaintiff.
Therefore, in so far as the said defendants are concerned the
suit shall be deemed to have been instituted, at the best, only
on 09.01.2015. The suit is thus beyond the period of limitation
and hence, time barred.
R.F.A. Nos.389 & 539 of 2019
2026:KER:51578
-: 11 :-
24. The learned Senior Counsel for the appellant would argue
that, limitation is a mixed question of law and fact, that there
was no plea of limitation before the trial court, and it does not
arise in an appeal by the second defendant. The suit against him
is filed well within the period of limitation, it is argued.
25. In terms of Section 3 of the Limitation Act it is the
obligation of the court, irrespective of a defence, to consider
whether the suit is filed within the period of limitation. In
R.Nagaraj (Dead) through Lrs. & anr v. Rajmani & ors (2025 LiveLaw (SC) 416) , the Apex
Court on an exhaustive consideration of the precedents held,
“Limitation, as we generally know is a mixed question of fact and law. However,
there is no hard and fast rule that every question of limitation is to be treated as
a mixed question of fact and law. In cases, where the action is initiated after
several years after the right to sue accrued, without any pleadings to explain the
reasons for delay or as to when the fraud was discovered, the question of
limitation is to be treated as a question of law………….It is also apropos to
reiterate the settled position of law that a question of law can be raised at any
stage”.
The duty of the Court under Section 3 of the Limitation Act to
consider the question of limitation irrespective of a defence
plea, was reiterated therein. In State of Gujarat v. M/s Kothari & Associates
[(2016) 14 SCC 761], the Apex Court, referring to Lachhmi Sewak Sahu v. Ram
Rup Sahu (AIR 1944 P.C. 24) held that where a suit is exfacie barred, the
plea is available to be urged even in the Court of last resort.
R.F.A. Nos.389 & 539 of 2019
2026:KER:51578
-: 12 :-
26. Here, the suit as against the defendants 3 to 15 being
apparently beyond the period of limitation, the court is bound to
consider the issue in the light of Section 3.
27. On the above discussions, we find that the suit as
against defendants 3 to 15 is barred by limitation.
28. With regard to the rival claims of compensation by the
plaintiff and the defendants 1 and 2 against each other, as found
by the trial court, but for the bald plea there is no evidence to
substantiate the claims. In the absence thereof the claims were
rightly negatived by the trial court. The said finding warrants
no interference.
29. No other contentions are urged.
30. The appeals lack merit.
In the result, the appeals are dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
