JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This application has been directed aggrieved against the order dated 5th February, 2016 passed by the learned Civil Judge (Junior Division) Burdwan in T.S. 101 of 2015. By the order impugned learned Court below rejected defendants application under Order VII Rule 11 of the Code of Civil Procedure (hereinafter called as ‘Code’) seeking rejection of plaint.

2. Plaintiff of the aforesaid suit Rajab Ali participated before the Debt Recovery Officer in connection with O.A. No. 94 of 2012 dated 22.09.2014 in auction and offered a sum of Rs. 2.90 crores for purchasing the suit property in connection with a proceeding initiated by the ICICI Bank against secured debtor Sk. Abdul Sabir.

3. The petitioner herein i.e. NST Housing Development Private Limited who is defendant no. 2 in the said suit also participated in the said auction and offered a sum of Rs. 2.30 cores to purchase the said property and such offer was made on 22.09.2014. In the said proceeding the plaintiff of the aforesaid suit Rajab Ali was the most successful bidder but he could not pay the earnest money and for which the petitioner herein being the next bidder was declared as a successful bidder and the sale of the said property was made in favour of the present petitioner. Thereafter, Receiver was appointed before the Debt Recovery Officer and as per the order of the Tribunal, deed of sale was executed in favour of the petitioner vide sale certificate dated 18th March, 2015.

4. Thereafter, defendant no.1, Sk. Sabir who was the secured debtor preferred appeal before Debt Recovery Appellate Tribunal but the appeal was dismissed being Appeal No. 3 of 2014, vide order dated 28.11.2014. The delivery of possession has been made in favour of the present petitioner by the Receiver and the petitioner herein accepted physical possession of the suit property vide letter dated 13.12.2014.

5. It is submitted on behalf of the petitioner that the suit property was originally a ‘Shali’ land but after purchase the petitioner converted the said ‘Shali’ land to ‘Bastu’ land and made the property fit for construction.

6. However, aforesaid Rajab Ali who became unsuccessful in the tender process filed aforesaid suit being T.S. No. 101 of 2015 showing valuation of the suit property at Rs. 99. In the plaint Rajab Ali alleged that 10-12 years back he started different types of small business over the suit property and in the year 2007, the owner of the suit property, who is the secured debtor before the bank, namely Abdul Sabir leased out the suit property at an annual rent of Rs. 1,44,000/-. Subsequently, in the month of June, 2010 plaintiff requested Sk. Abdul Sabir Ali to sell out the suit property at a rate of Rs. 6,00,000/-per ‘cotta’ and total price was fixed at an amount of Rs. 4.32 crores by dint of an initial oral agreement which was subsequently reduced into a written agreement dated 21.12.2012. In the said suit aforesaid plaintiff prayed for permanent injunction along with a declaration that plaintiff is entitled to get the suit property enforcing aforesaid ‘agreement for sale’ dated 21.11.2012.

7. During pendency of the said suit, the petitioner herein as defendant filed an application under Order VII Rule 11 of the Code on the ground that the aforesaid Title Suit No. 101 of 2015 is barred by law and as such plaint is liable to be rejected under Order VII Rule 11 (d) of the Code. However, learned Court below by the impugned order observed that she appreciates the grievances made by defendant/company that plaintiff has supressed the material truth in his plaint but while considering an application under Order VII Rule 11, the Court is not supposed to consider the averments made in the written statement and she is to confine herself with the averments made in the plaint. Considering only the averments made in the plaint, the Court below ultimately rejected defendants application under Order VII Rule 11 of the Code.

8. Being aggrieved by the said order