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2021 Supreme(Guj) 606
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, VAIBHAVI D. NANAVATI, JJ.
KALPESHBHAI DANACHANDBHAI SHAH – APPELLANT
Versus
ASHVINBHAI LALCHAND SHAH – RESPONDENT
FIRST APPEAL NO. 1032 of 2021
Decided on : 09-08-2021
For the Appellant : MR. HJ KARATHIYA
For the Respondent: MR HARSHADRAY A DAVE
Point of law : There could be partial striking out of pleadings but not rejection of the plaint. To bring out the cause of action, a plaint must state the necessary conditions to maintain a suit.
Headnote:
Civil Procedure Code,1908 – Order 7 Rule 11(d) - Negotiable Instruments Act – Section 138 - Specific Relief Act, 1963 - Section 41(d) and 31 - Misusing cheques – Relief of declaration - Appellant herein-original plaintiff instituted Special Civil Suit in Court of Principal Senior Civil Judge, plaintiff/s has/have given cheque towards the security against amount borrowed from opponent/s and though opponents has bound to return cheques, which were received from plaintiff/s towards security against amount borrowed from opponent/s, opponent/s is/are misusing cheques received on account of security amount - It is case of plaintiff that such cheques are now being misused by defendants and prosecution has also been instituted for dishonor of those cheques by filing complaints under Section 138 of Negotiable Instruments Act - Whether each one of them discloses a cause of action.
Finding of the court :
Court in no uncertain terms has held that there could be partial striking out of pleadings but not rejection of plaint - To bring out the cause of action, a plaint must state the necessary conditions to maintain a suit - Merits of those conditions and/or terms is inconsequential at the stage for consideration of any application at the instance of defendants for rejection of plaint - However, in case on hand, Court below seems to have overlooked Section 31 of the Act, 1963 and seems to have got confused with Section 41(d) of Act - Court below seems to have rejected entire plaint or to put it in other words, thought fit to take view that both reliefs prayed for are barred by virtue of Section 41(d) of the Act, 1963.
Result : Appeal allowed.
JUDGMENT
(PER J.B.PARDIWALA, J.
1. This first appeal is at the instance of the original plaintiff and is directed against the order passed by the learned 10th Additional Senior Civil Judge, Surat, below Exh.1 dated 04.02.2021 in the Special Civil Suit No.21 of 2021 by which the Court below rejected the plaint under the provisions of Order 7 Rule 11(d) of the Civil Procedure Code even before issuing summons to the defendants.
2. The facts giving rise to this first appeal may be summarized as under:
2.1 The appellant herein-original plaintiff instituted the Special Civil Suit No.21 of 2021 in the Court of the Principal Senior Civil Judge, Surat seeking the following reliefs:
“1. Your Honour may please be declare all the Chques as void as the cheques are void and illegal because we, the plaintiff/s has/have given cheque No.000082, 000083, 000084 and 000085 of HDFC Bank Ltd. Piplod Branch, Surat towards the security against the amount borrowed from the opponent/s and though the opponents has bound to return the cheques, which were received from the plaintiff/s towards security against the amount borrowed from the opponent/s, the opponent/s is/are misusing the cheques received on account of security amount.
2. Your Honour may please be grant to perpetuate injunction against the opponent/s as his associates, servants, agents restraining them to negotiate or clear his cheques as they are not entitled for the same and also restraining them from initiated any criminal proceedings against the plaintiff/s.
3. To award the costs of this petition from the opponent/s.
4. As any other relief may be granted deem fit by the Hon’ble Court.”
2.2 It appears from the averments made in the plaint as also the prayers in the plaint that there is some financial transaction between the plaintiff and the defendants. It is not in dispute as admitted in the plaint itself that the plaintiff had issued cheques in favour of the defendants drawn on the HDFC Bank Ltd., Piplod Branch, Surat for a particular amount. These cheques were issued sometime in the year 2016-17. On none of the cheques any date was written. It is the case of the plaintiff that such cheques were issued by him to the defendants by way of security. However, the requisite amount later came to be paid to the defendants and the defendants were expected to return those cheques issued by way of security.
2.3 It is the case of the plaintiff that such cheques are now being misused by the defendants and prosecution has also been instituted for the dishonour of those cheques by filing complaints under Section 138 of the Negotiable Instruments Act. The plaintiff wants to seek a declaration that the chequesin- question were drawn by him in favour of the defendants by way of security and such instruments be declared as void or voidable or without any lawful consideration etc. The plaintiff also seeks relief to the extent that the defendants shall not take any action against the plaintiff by filing any criminal complaint etc.
2.4 Upon institution of the suit, the Court below rejected the plaint holding as under:
“1. The present matter was kept for hearing on admission stage to decide question of maintainability of the present suit filed by the plaintiff against the defendants. This is a suit for declaration and perpetual injunction. Brief facts of the case as per plaintiff are that the plaintiff took a loan of Rs. 25,00,000/- from the defendants in the year 2016-17 and gave four blank signed cheque bearing no. 000082, 000083, 000084 and 00008 drawn on HDFC Bank Ltd., Piplod Branch, Surat. It is alleged by the plaintiff that after repayment of the said loan of Rs. 25,00,000/ plaintiff demanded the cheques from the defendants but they refused to return the same. As such, the plaintiff had allegedly given notice to the defendants and got the payment of cheques in question stopped so that it may not be misused. It is averred that the defendants later on misused the cheques in question and presented the said cheques
