Point of law: Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. M. Sharma, the learned counsel for the petitioner. And Mr. T. Deuri, the learned counsel appearing on behalf of the respondent No. 1.

2. This is an application under Section 115 of the Code of Civil Procedure challenging the impugned order dated 12.04.2018 passed in Misc. (J) Case No. 208/2018 as well as Misc. (J) Case No. 193/2018 both arising out of Title Suit No. 97/2018 pending before the court of the learned Civil Judge No. 2, Kamrup (Metro) at Guwahati.

3. Before further proceeding with the instant matter, it would be relevant to point out that the Misc. J Case No. 193/2018 arising out of Title Suit No. 97/2018 is a proceeding under Order XXXIX Rule 1 and 2 filed by plaintiff/the respondent No. 1 in the suit seeking temporary injunction and the trial court vide order dated 12.04.2018 has directed both the parties to the suit to maintain status quo in respect of A schedule land described in the petition till the disposal of Title Suit No. 97/2018. The fate of the said challenge would be dependent upon the outcome of the challenge to the rejection of the application for rejection of the plaint.

4. Now coming to the next Misc. (J) Case No. 208/2018, it is relevant to take note that the said application was an application under Order VII Rule 11(d) for rejection of the plaint on the ground that from a perusal of the plaint, it appears that the suit is barred by the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 for short “the Act of 2002”).

5. To decide the legality and validity of the said order dated 12.08.2018, it would be relevant to take note of the certain basic facts which I do as herein under.

6. The respondent No. 1 as plaintiff has instituted a suit being Title Suit No. 97/2018 against her son who is the defendant No. 1 and the petitioner herein who were arrayed as defendant Nos. 1 and 2 in the said suit. It is an admitted fact that the respondent No. 1 is the owner of a plot of land measuring 1 katha 7 lechas covered by Dag No. 1271 of K.P. Patta No. 92 of village Khargulli under Ulubari mouza in the district of Kamrup, Assam. The said plot of land has been more specifically described in Schedule A to the plaint. The defendant No. 1, who appears to be the younger son of the plaintiff approached the plaintiff to allow him to construct a RCC building over the Schedule A land and the plaintiff allowed the said defendant to construct the RCC building by obtaining necessary permissions from the competent authority and accordingly the defendant No. 1 had obtained NOC from the Guwahati Municipal Corporation for construction of the G+2 RCC building on 06.01.2003 in the name of the defendant No. 1. Pursuant thereto the defendant No. 1 constructed the G+2 RCC building over the Schedule A land. The plaintiff further alleged that on 22.02.2018 some unknown persons came to the residence of the plaintiff and identified themselves as officials of the defendant No. 3 and took symbolic possession over the Schedule A property. On enquiry, the plaintiff came to learn that a loan to the tune of Rs. 55 lakhs is shown to have been obtained by the plaintiff against the Schedule A property in the year 2013 by mortgaging the Schedule A property and due to non-payment/default in payment of the loan amount, the defendant Nos. 2 and 3 have proceeded for realisation of the debt under the Act of 2002. The plaintiff on coming to learn about the said aspect of the matter alleges that she along with her elder son went to the Branch office of the defendant No. 3 and met the Manager and could come to learn that the loan amount of Rs. 55 lakhs was sanctioned in the name of the defendant No. 1 and the plaintiff stood as the guarantor of the said loan mortgaging the Schedule A property as secured asset. The plaintiff thereafter made enquiry and could come to learn that some fraud has been committed by forging the signatures of the plaintiff in obtaining a loan