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2011 DIGILAW 2236 (RAJ)

Manjula v. Somnath Nayyer

2011-10-17

VINEET KOTHARI

body2011
Judgment : 1. This revision petition has been filed by the plaintiff against the order dated 8/9/2008, whereby, the application filed by the plaintiff under Order 7 Rule 11 CPC seeking rejection of the counter claim filed by the defendant Somnath Nayyer came to be rejected by the learned trial court. 2. Learned counsel for the petitioner-plaintiff, Mr. Sandeep Bhandawat urged that under the agreement Annex.2 dated 11/2/1995, the plaintiffs-Bhagwat Singh Mehta and Smt. Manjula Mehta had entered into an agreement with defendant Somnath Nayyer only for sale of portion of land measuring 740 sq. ft. out of their jointly owned land of plaintiffs measuring 9510 sq. ft. for Rs.51,800/-and there was no agreement to sell any flat in the said agreement dated 11/2/1995. However, the said defendant, Somnath Nayyer, illegally took possession of one of the flats, namely flat no. 5 in a building raised by another company, M/s UTDC and, therefore, the plaintiffs had to file a suit for eviction and possession against the said defendant. In the said suit No. 63/2007 (Smt. Manjula Mehta & anr. vs. Somnath Nayyer), the defendant had filed written statement and in the said written statement made a counter claim (page 31 of the paper book) in which the defendant raised the plea that there were two agreements on 11/2/1995 and when the plaintiff failed to execute the sale deed in favour of defendant Somnath in respect of flat under one such agreement, he was entitled to specific performance of said agreement dated 11/2/1995 and also claim damages of Rs.1 lac on account of increase in stamp duty charges during the course of time. 3. The plaintiffs filed application under Order 7 Rule 11 CPC seeking rejection of the said counter claim, which came to be rejected by the learned trial court by the impugned order dated 8/9/2008. 4. The plaintiffs being aggrieved of the same, approached this Court by way of present revision petition. 5. Learned counsel for the petitioner- plaintiffs, Mr. Sundeep Bhandawat urged that in the absence of any other separate agreement dated 11/2/1995 between the parties for sale of flat, the very foundation of counter claim filed by the defendant is absent and he also submitted that despite directions of this Court, the defendant Somnath Nayyer has failed to produce any such agreement before this Court or before the learned trial court. The only agreement dated 11/2/1995 is Annex.2 by which only 740 sq. ft. portion of land was agreed to be sold to defendant Somnath Nayyer for Rs. 51,800/-and there was no stipulation or agreement about sale of any flat by the plaintiffs to defendant Somnath Nayyer. He also submitted that counter claim filed after 11 years of the said purported but non-existing agreement dated 11/2/1995 was ex-facie time barred and, therefore, the learned trial court has erred in entertaining such counter claim and rejecting the application of the plaintiffs under Order 7 Rule 11 CPC. He further submitted that payment of Rs. 6 lacs, if any made, as claimed by the defendant was not made to the plaintiffs but might have been made to the Company M/s UTDC and in the absence of any legal action taken by Somnath Nayyer against the company UTDC, the plaintiffs cannot be saddled with such counter claim for specific performance and damages as made by him. 6. On the other hand, Mr. M.R.Singhvi, Sr. Advocate and Mr. G.R.Singhvi urged that the learned trial court was justified in rejecting the application under Order 7 Rule 11 CPC finding that the question of limitation is a mixed question of fact and law and even if counter claim is filed after 11 years, the same can be entertained by the learned trial court. However, despite specific query with regard to previous order passed by the Court, the learned counsel for the defendant (Plaintiff in the counter claim) Mr. Somnath Nayyer, failed to produce any such agreement dated 11/2/1995 besides Annex.2 agreement dated 11/2/1995 for 740 sq. ft. of land and under which the defendant Somnath Nayyer could claim specific performance of the agreement to sale the flat or damages of Rs. 1 lac. 7. As aforesaid, the agreement Annex.2 dated 11/2/1995 does not talk of any sale of flat by the plaintiffs to the defendant. In the counter claim, the defendant obviously claimed this relief of specific performance and damages to the extent of Rs.1 lac. The company M/s UTDC is not even in the array of parties in the present suit. Therefore, this court is of the opinion that counter claim filed by the defendant Somnath Nayyer in the present case is wholly baseless and trial with regard to same cannot be held by the learned trial court. 8. The company M/s UTDC is not even in the array of parties in the present suit. Therefore, this court is of the opinion that counter claim filed by the defendant Somnath Nayyer in the present case is wholly baseless and trial with regard to same cannot be held by the learned trial court. 8. Consequently, not only on the ground of limitation but also on account of lack of foundational facts, the counter claim filed by the defendant deserved to be rejected by the learned trial court. 9. Accordingly, the present revision petition of plaintiff Manjula Mehta and Bhagwat Singh Mehta is allowed and the impugned order of trial court dated 8/9/2008 is set aside and counter claim filed by the defendant Somnath Nayyer is dismissed under Order 7 Rule 11 CPC. The trial court may proceed further with the main suit expeditiously. No costs.