Back
2020 Supreme(Bom) 375
IN THE HIGH COURT OF BOMBAY AT GOA
C.V. BHADANG, J.
Diana Buildwell Private Limited – Appellant
Versus
M/s. Sterling Holiday Resorts (India) Ltd. and Others – Respondents
Civil Revision Application Nos. 39, 44 of 2015, 1 of 2016
Decided On : 02-06-2020
Advocate Appeared:
For the Appellants : Mr. Nitin Sardessai, Rohit Bras De Sa.
For the Respondents: Mr. Shivan Desai, Mr. U.R. Tamble, Ms. Yadika Mandrekar, Ms. Gauri Govekar.
The main legal point established in the judgment is that the rejection of a plaint under Order VII, Rule 11 of the CPC should be based on the allegations in the plaint and the documents filed with it, without considering the defense at the stage of rejection.
Headnote:
CPC - Rejection of Plaint - Order VII, Rule 11(a) and (d) - S.115 - [CIVIL PROCEDURE CODE] - [Order VII, Rule 11(a) and (d)] - The court discussed the rejection of the plaint under Order VII, Rule 11(a) and (d) of the CPC, focusing on whether the plaint disclosed cause of action and whether the suit was barred by limitation. The court examined the sale-deed clauses, the nature of consideration, and the accrual of cause of action, and concluded that the plaint should not be rejected at the threshold.
Fact of the Case:
The suit was filed by the plaintiff for recovery of money and other reliefs against the defendants, alleging non-payment of the balance consideration for the sale of a property. The defendants filed separate applications for rejection of the plaint under Order VII, Rule 11(a) and (d) of CPC, claiming that the suit did not disclose any cause of action and was barred by limitation.
Finding of the Court:
The court found that the plaint should not be rejected at the threshold as it disclosed cause of action and was not barred by limitation. The court emphasized that the sale-deed clauses indicated that the amount in question was part of the consideration and not for services rendered, and the cause of action arose within the limitation period.
Issues: The issues revolved around whether the plaint disclosed cause of action, whether the suit was barred by limitation, and the interpretation of the sale-deed clauses regarding consideration and accrual of cause of action.
Ratio Decidendi: The court's decision was based on the interpretation of the sale-deed clauses, the nature of consideration, and the accrual of cause of action, emphasizing that the defense, actual or probable, cannot be considered at the stage of rejection of the plaint.
Final Decision: The court dismissed the revision applications, stating that the observations made were for the limited purpose of examining the issue of rejection of plaint, and directed the trial court to proceed with the suit expeditiously.
JUDGMENT :
C.V. BHADANG, J.
1. The challenge in these civil revision applications, under S.115 of the Code of Civil Procedure, 1908 (for short “CPC”) is to the common order dated 14th October, 2015 passed by the learned Civil Judge, S.D. Mapusa in Special Civil Suit No. 11 of 2015/B. By the impugned order, three separate applications filed one each by defendant No. 1 (Exhibit D-11); defendant No. 3 (Exhibit D-24) and defendant No. 5 (Exhibit D-26), for rejection of plaint under Order VII, Rule 11(a) and (d) of CPC have been dismissed. In such circumstances, the civil revision applications are being disposed of by this common judgment.
2. The brief facts necessary for the disposal of the revision applications may be stated thus:
That the first respondent M/s. Sterling Holiday Resorts (India) Ltd. (plaintiff) has filed the aforesaid suit, against the applicants for recovery of money and other reliefs. The case made out in the plaint is that the first respondent has sold the suit property, more specifically described in plaint para 1 to Diana Buildwell Pvt. Ltd. (defendant No. 1) under registered sale-deed dated 11.5.2007 for a total consideration of Rs. 55,11,00,000/- which was to be paid in the manner, as stipulated in the sale-deed. Indisputably, on the date of execution of the sale-deed, an amount of Rs. 49,11,00,000/- has been paid to the first respondent, which according to the first respondent was towards payment of part consideration. According to the first respondent, the balance consideration of Rs. 6,00,00,000/- was to be paid by the defendant No. 1 on the plaintiffs obtaining renewal of the construction license from the village Panchayat Anjuna on or before 12th December, 2007. The first respondent has obtained the renewal of construction license on 17.7.2007 and has complied with the obligation, under Clause 9 of the said sale-deed, as a result of which the consideration of Rs. 6 crores has become payable. In short, according to the first respondent, in spite of the first respondent complying with the stipulation, the first defendant has failed to pay the amount of Rs. 6 crores.
3. It may be mentioned that Sterling Woodhouse Hotels and Resorts India Pvt. Ltd. (defendant No. 5) has obtained rights to operate a hotel in the said property from the defendant No. 1 for a period of twenty years, under an agreement dated 18.8.2011. The original defendant Nos. 2, 3 and 4 are respectively the Yes Bank Limited, Saraswat Co-operative Bank Ltd. and Vijaya Bank, have granted financial assistance to the defendant No. 1 for purchase of the property.
4. The first respondent in the suit has inter-alia prayed for a decree in the sum of Rs. 21,14,25,548/- including interest till 19th February, 2015 along with future interest and for declaration of a valid and subsisting charge on the suit property. The first respondent has also sought a declaration that any charge/or mortgage on the suit property created in favour of the original defendant Nos. 2 to 5 is subject to the prior charge of the unpaid price, created in favour of the first respondent.
5. The defendants have filed separate applications for rejection of the plaint under Order VII, Rule 11 (a) and (d) of CPC as aforesaid on the ground that the plaint does not disclose any cause of action and the suit is barred by limitation.
6. The applications were opposed by the first respondent. It is contended that there is a statutory charge of the unpaid purchase price in favour of the first respondent, which is the vendor, and the first respondent having complied with the stipulation in clause 9, there is clear cause of action, for filing the suit for non payment of the additional consideration, as agreed. It was contended that the first defendant refused to make the payment, lastly on 20th December, 2012, and as such, the suit having been filed within three years thereafter i.e. in February, 2015, is well within limitation. It was contended that even otherwise, the issue of limitation is a mixed
