2014 Supreme(Bom) 564

High Court of Judicature at Bombay
R.D. DHANUKA, J.
Export Credit Guarantee Corporation of India Ltd.
Versus
T. Mathew the Settler and Trustee of P.M.T. Family Trust & Others
Notice of Motion No. 3897 of 2006 in Suit No. 2177 of 2001
Decided On: 04-03-2014

Headnote:Civil Procedure Code, 1908 - Order VII, Rule 11 - Rejection of plaint. - Plaint prima facie not shows cause of action, i.e. a bundle of facts, liable to be rejected. - A perusal of the plaint indicates that the suit is for specific performance of the two documents. In paragraph 5, 6, 8 to 10, 10-B, 10-C, 10-E of the plaint, it clearly indicates that the plaintiff has pleaded cause of action required to be made in a suit for specific performance. Supreme Court in case of Liverpool and Landon S.P. & I Association Ltd., 2005 (4) All MR 17 has held that a cause of action is a bundle of facts which are required to be pleaded and for the purpose of obtaining relief claimed in the suit. The material facts are required to be stated but not the evidence except in certain cases where the pleadings relies on any misrepresentation, fraud, breach of trust, willful default or undue influence. High Court is respectfully bound by the judgment of Supreme Court referred to aforesaid which squarely applies to the facts of this case.

       Civil Procedure Code, 1908 - Order VII, Rule 11 - Rejection of plaint. - Plaint prima facie showing cause of action, cannot be rejected as Court is not required to look into complicated issues at stage of Order VII, Rule 11 of CPC. - Court cannot reject the plaint on the basis of the allegations made by the defendants in the written statement. However, Court can certainly look into the averments in the affidavits filed by the defendants themselves in the same proceedings taking a contradictory or inconsistent stand than the stand taken in the application for rejection of plaint under Order VII, Rule 11. A party cannot be allowed to take two different stand, one while opposing the application for interim relief filed by the plaintiff and another stand while making an application for rejection of plaint under Order VII, Rule 11. Once Court is satisfied that plaint prima facie shows a cause of action, Court is not required to make an elaborate enquiry into the doubtful or complicated questions of law or facts. Court cannot consider whether plaintiff would ultimately succeed in the claims made by him or not while deciding application under Order VII, Rule 11 of Code of Civil Procedure, 1908. A perusal of the plaint in toto clearly indicates that the cause of action set out in the plaint is not illusory but requires to be decided at the time of trial.

       On the issue as to whether the documents relied upon by the plaintiff were in the nature of agreement to lease or agreement of lease, defendants placed reliance on the judgment of the Supreme Court in the case of State of Maharashtra and others vs. Atur India Pvt. Ltd. (supra). In view of the inconsistent stand taken by the defendants themselves in the affidavits in reply filed in Notice of Motion and affidavit in support of the application under Order VII, Rule 11, regarding the nature of documents and as the said issue has to be decided at the time of trial, judgment relied upon by the senior counsel is of no assistance to the defendant No. 3 at this stage.

       Since 1980 document itself is considered by the defendants as agreement to lease and also an agreement for lease, whether such document required registration or not therefore cannot be decided at this stage while considering the application under Order VII, Rule 11 of Code of Civil Procedure, 1908. The said issue can be considered by this Court at the trial. Issue of registration would depend upon the issue whether the 1980 document is an agreement to lease or agreement for lease. The proposition of law laid down by the Supreme Court and Delhi High Court in the aforesaid judgments relied upon by the defendant No. 3 is not in dispute but cannot be applied at this stage.

       Civil Procedure Code, 1908 - Order VII, Rules 11 and 13, Section 9-A - Rejection of plaint. - Plaint cannot be rejected on ground of limitation as bar of limitation can be considered as preliminary issue under Section 9-A of Code. - A perusal of Section 3 of Limitation Act clearly indicates that every suit filed after prescribed period has to be dismissed subject however to provisions contained in Sections 4 to 24 of the Limitation Act, 1963, even if limitation has not been set up as a defence. In so far as remedy under Order VII, Rule 11 of the CPC, 1908 is concerned, if the conditions set out therein are satisfied, suit cannot be dismissed but only plaint can be rejected. Under Order VII, Rule 13 of the CPC, even if plaint is rejected, fresh suit can be filed whereas if suit is dismissed on the ground of limitation, no fresh suit can be filed in respect of such time barred claim. Both the provisions thus operate in different field. Plaint therefore cannot be rejected under Order VII, Rule 11 of CPC on the ground of limitation. If according to the defendant No. 3, suit is barred by limitation, such issue can be raised by defendant No. 3 in the affidavit in reply or in the written statement and such issue if raised can be tried by this Court as a preliminary issue.

       Even otherwise, a perusal of the plaint in toto indicates that it is case of the plaintiff that various payments were made by the plaintiff to the society or were required to be deposited in the co-operative Court pursuant to the interim orders. It is also, case of the plaintiff that plaintiff was required to set off and have set off such payments against the consideration payable to the defendant Nos. 1 to 3 for exercising rights to purchase revisionary rights in the suit property. It is also stated in the plaint that the cause of action for filing the suit arose when the trust neglected to comply with the demands contained in the notice dated 16th May, 2000 as also the letter dated 19th April, 2001. It is also stated that no part of the plaint is barred by law of limitation. The plea of limitation is a mix question of facts and law and particularly considering the averments made in the plaint, this Court cannot come to any conclusion at this stage whether the claim is liable to be rejected on the ground of limitation. Issue of limitation thus raised by the defendant No. 3 in the notice of motion can be considered as a preliminary issue under Section 9-A of Code of Civil Procedure.

       Registration Act, 1908 - Section 47 - Registration of document. - Even if registration of lease deed done after expiry of period of lease, its registration relate back date execution of deed which required registration. - It is not in dispute that on 8th July, 1992, an agreement was entered into by the plaintiff by exercising powers under power of attorney. The said document is admittedly registered. Supreme Court in case of Har Narain, 2010 All SCR 2441 (supra) has held that under Section 47 of the Registration Act, 1908, a registration of the document shall relate back to the date of execution of the document. It is held that even if registration has been done subsequent to the filing of the suit, it relates back to the date of execution of the deed which required registration. Court is thus not inclined to accept the submission of the senior counsel appearing for defendant No. 3 that such registration in the year 2009 which was after expiry of 20 years of lease period would not relate back to the date of execution of the agreement. Court is respectfully bound by the judgment of the Supreme Court in case of Har Narain, 2010 All SCR 2441 (supra).