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2012 DIGILAW 33 (CAL)

Sukumar Roy v. Narendra Deo Dubey

2012-01-13

PRASENJIT MANDAL

body2012
Judgment : PRASENJIT MANDAL, J. This application is at the instance of the defendant and is directed against the order dated October 4, 2010 passed by the learned Civil Judge (Junior Division), 3rd Court, Sealdah in Title Suit No.172 of 2009 thereby rejecting an application for rejection of plaint. The plaintiff / opposite party herein instituted a suit being Title Suit No.172 of 2009 against the petitioner for declaration, permanent injunction and other reliefs. In course of business transaction, the parties entered an agreement. The petitioner paid a sum of Rs.15 lakhs by a cheque dated April 22, 2008 to the plaintiff / opposite party and the plaintiff in a return issued two cheques for Rs.15 lakhs dated November 30, 2008 as refund of the principal cheque and another cheque of Rs.16.5 lakhs only as anticipated profit on December 20, 2008. The defendant / petitioner herein presented those two cheques to his bank. Those two cheques were dishonoured and then the lawyer of the petitioner issued two letters dated April 2, 2009 demanding payment from the plaintiff / opposite party herein the sum of Rs.15 lakhs and Rs.16.25 lakhs respectively within 15 days of the receipt of the same failing which it was threatened that action under Section 138 of the Negotiable Instruments Act, 1882 would be taken. On getting such notice, the plaintiff filed instant suit for declaration that the said cheques to be treated as cancelled and other consequential reliefs. The defendant filed an application under Order 7 Rule 11 of the C.P.C. and that application was rejected by the impugned order with costs. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned advocate for the petitioner and on going through the materials on record, I find that the plaintiff / opposite party herein instituted the suit for declaration, permanent injunction and other reliefs which are quoted below:- a) Leave under Order 11 Rule 2 of the Code of Civil Procedure. b) Declaration that the Cheques No.624128 dated 30th November 2008 for Rs.15,00,000.00 and Cheque No.624129 dated 20th December 2008 for Rs.16,25,000.00 both drawn on the Bank of Rajasthan Limited, Salt Lake Branch, are cancelled. b) Declaration that the Cheques No.624128 dated 30th November 2008 for Rs.15,00,000.00 and Cheque No.624129 dated 20th December 2008 for Rs.16,25,000.00 both drawn on the Bank of Rajasthan Limited, Salt Lake Branch, are cancelled. c) Declaration that both letters dated 2nd April 2009 issued by Paramita Roy, Advocate to the plaintiff being Annexure “E” and “F” to the plaint are illegal, unjust and hance (sic) cancelled. d) Mandatory order of injunction directing the defendant to return the Cheque No.624128 dated 30th November 2008 for Rs.15,00,000.00 and Cheque No.624129 dated 20th December 2008 for Rs.16,25,000.00 both drawn on the Bank of Rajasthan Limited, Salt Lake Branch, to the plaintiff. e) Injunction restraining the defendant, his servants and agents from taking further action on the basis of the letters dated 2nd April 2009 enclosed as Annexure “E” and “F” to the plaint. f) Further another injunction. g) Costs, and h) Further or other relief or reliefs. Thus, from the reliefs sought for in the suit, it would reveal that the plaintiff has filed the said suit so as to restrain the defendant from legal steps under Section 138 of the Negotiable Instruments Act when the two cheques were dishonoured. Section 41(b) of the Specific Relief Act, 1963 clearly provides that any injunction in restraint of judicial proceedings is void. The Court is to assess the effect of the relief as sought for in the plaint and then to decide if the suit is barred by law. When the two cheques issued by the plaintiff were dishonoured, the defendant was at liberty to take appropriate legal steps under Section 138 of the Negotiable Instruments Act. The object of Order 7 Rule 11 of the C.P.C. is to eliminate unnecessary litigations and in order to decide this fact, Court is to consider the plaint as a whole and then to decide whether the reliefs sought for is barred by law or not. The vexatious litigations should not be allowed to continue or consume the time of the Court. The Trial Court is entrusted to look into the matter to avoid the abuse of the process of law. The vexatious litigations should not be allowed to continue or consume the time of the Court. The Trial Court is entrusted to look into the matter to avoid the abuse of the process of law. The learned Trial Judge has not discussed such fact in the light of the observations made above but he has simply recorded that the relief of declaration is the exclusive jurisdiction of the Civil Court and any other proceeding running simultaneously cannot bar such jurisdiction of the Civil Court. He has recorded that the injunction as prayed for flows from the prayer of declaration. Such findings cannot be supported and it is not in the true sense of the provisions Order 7 Rule 11 of the C.P.C. The impugned order, therefore, cannot be supported. The learned Trial Judge has failed to exercise his jurisdiction properly. Mr. Mainak Bose, appearing on behalf of the petitioner has referred to the decision of Capt. Atul Kumar Singh V. Ms. Jalveen Rosha reported in AIR 2000 Delhi 38 and thus, he has submitted that in a suit for declaration and permanent injunction restraining the defendants from using cheques issued to them - Suit filed after institution of criminal case against plaintiff under Section 138 of Negotiable Instruments Act - Injunction filed by the plaintiff cannot be granted in view of Section 41(b) of the Specific Relief Act - Plaint is liable to be rejected. Mr. Bose has next referred to the decision of K.K. Modi V. K.N. Modi & Ors. reported in (1998) 3 Supreme Court Cases 573 and thus, he has submitted that if the civil suit is allowed to continue in the circumstances, it would amount to abuse of process of the Court. Lastly, Mr. Bose has referred to the decision of M/s. Aristo Printers Pvt. Ltd., V M/s. Purbanchal Erade Centre, Guwahati reported in AIR 1992 Gauhati 81 and thus, he has submitted that suit filed by the drawer of the cheque denying liability to pay and that Section 138 was not applicable - Inter locutory injunction restraining defendant from proceeding under Section 138 - Grant of injunction is illegal. On the other hand, Mrs. On the other hand, Mrs. Sutapa Sannyal appearing for the opposite party has referred to the decision of Ropat and Kotecha Property V. State Bank of India Staff Association reported in 2005 Volume 7 SCC 510 and thus, she has submitted as to the nature, object, scope and the applicability of Order 7 Rule 11(d) of the C.P.C. relating to rejection of plaint and submitted that in order to consider whether the plaint should be rejected, the statements as made in the plaint without any doubt or dispute should be considered and in the instant case from the plaint copy of which has been annexed to the application does not show that the plaint is barred by any law and, in fact, the prayer for temporary injunction was not granted in view of the provisions under Section 41(b) of the Specific Relief Act, 1963, the suit for other reliefs, is quite maintainable. As I have held earlier that the learned Trial Judge has not discussed about the contention of the petitioner in the light of the averments made in the application and I have determined to remand the matter for decision afresh, I am of the opinion that it will not be proper to discuss the effect of all such decisions within the scope of this application. The parties are at liberty to ventilate their contentions before the learned Trial Judge afresh. Accordingly, the impugned order is hereby set aside. The learned Trial Judge is directed to hear out the application under Order 7 Rule 11 of the C.P.C. afresh within a period of 30 days from the date of communication of this order and then to pass appropriate orders thereon again. Considering the circumstances, there will be no order as to costs. Urgent Xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.