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2016 DIGILAW 2013 (GUJ)

Maheshbhai Dayaljibhai Patel v. Andhra Bank

2016-09-07

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R SHAH, J. Feeling aggrieved and dissatisfied with the impugned order dated 11.03.2016 passed below Exhs.22 and 24 in Special Civil Suit No. 262/2014 by the learned 4th Additional Senior Civil Judge, Vadodara (hereinafter referred to as “trial Court”) by which in exercise of powers under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) the learned trial Court has rejected the plaint, the original plaintiff has preferred the present First Appeal. 2. Facts leading to the present First Appeal in nut-shell can be summarized as follows: 3. That the appellant herein - original plaintiff (hereinafter referred to as “original plaintiff) had filed Special Civil Suit No. 262/2014 in the Court of learned Principal Senior Civil Judge, Vadodara for a declaration to declare and cancel the sale deed executed by the original defendant Nos. 1 and 2 in favour of the original defendant No. 3 for the immovable property/open land bearing Survey Nos. 109, 111 and 112 (hereinafter referred to as “lands in question”) on the ground that the plaintiff is the absolute and legal owner of the lands in question which ash been fraudulently sold by original defendant Nos. 1 and 2 in favour of the original defendant No. 3. 4. The plaintiff had also further prayed in the suit to cancel the corresponding Memorandum of Entry registered in the office of Sub-Registrar, Savli, District Vadodara with respect to the lands in question. 5. It is averred in the plaint that though the lands in question were not mortgaged by the original land owners with the original defendant No. 1 while taking the loan/advance and despite the same in the Memorandum of Entry which was registered with the office of Sub-Registrar, Savli fraudulently, there was an entry with respect to the lands in question on which the original defendant No. 2 took the loan/advance from the original defendant No. 1 - Andhra Bank and which subsequently came to be auctioned by the original defendant No. 1-Andhra Bank in favour of the original defendant No. 3 in collusion with the earlier power of attorney Shri. Umang Patel who was alleged to be the power of attorney of the original land owners Jasbhai Narsinhbhai Patel and others. It was also averred in the plaint that while auctioning the lands in question, no notices were served upon the original land owners and therefore, the proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”) is illegal. In the plaint the cause of action pleaded by the plaintiff is that on 29.04.2014 the persons of original defendant No. 3 and some antisocial elements went to the place of the lands in question and threatened him to remove from the lands. 6. That having been served with the summons/notice of the suit, the original defendant No. 3 submitted the application below Exh.22 requesting to reject the plaint under Order VII Rule 11(d) of the CPC by submitting that the plaintiff has not stated the correct facts before the Court and has suppressed the material fact. It was submitted that the plaintiff has suppressed the pendency of the Special Civil Suit No. 101/2010 filed by the original defendant No. 3 against the original plaintiff and original defendant No. 2 and others pending in the Court of learned Civil Judge, Vadodara which has been filed by the original defendant No. 3 to declare the collusive decree passed in Special Civil Suit No. 548/2009 which was filed by the original plaintiff against the original defendant No. 2. It was submitted that despite the fact that the plaintiff has appeared in the said suit on 25.02.2010, the plaintiff had not stated anything about the same. It was submitted that even there is no reference to the order passed by the learned trial Court below Exh.5 in Special Civil Suit No. 101/2010. It was submitted that the plaintiff has tried to mislead the Court by suppressing the material fact. 7. It was further submitted that as such the plaintiff is not the legal owner of the suit and/or he is the bona-fide purchaser. It was submitted that the plaintiff had filed the collusive suit being Special Civil Suit No. 548/2009 against the original defendant No. 2 for specific performance of the alleged Agreement to Sell and thereafter had obtained the collusive consent decree which is the subject matter of Special Civil Suit No. 101/2010. 8. It was submitted that the plaintiff had filed the collusive suit being Special Civil Suit No. 548/2009 against the original defendant No. 2 for specific performance of the alleged Agreement to Sell and thereafter had obtained the collusive consent decree which is the subject matter of Special Civil Suit No. 101/2010. 8. It was further submitted that even the suit challenging the sale deed in favour of original defendant No. 3 dated 18.04.2009 is barred by law of limitation. It was submitted that the sale deed in favour of the original defendant No. 3 was registered in the office of Sub-Registrar, Savli on 18.04.2009 vide Registration No. 496/2009 and the same was out of the knowledge of the plaintiff in Special Civil Suit No. 101/2010. It was further submitted that even otherwise even subsequently the sale deed in favour of original defendant No. 3 was challenged before the Debts Recovery Tribunal in the year 2010, however the same came to be dismissed on the ground of limitation and despite the same after a period of 3 years the present suit has been preferred which is barred by law of limitation. 9. It was further submitted that the original defendant No. 3 has purchase the lands in question in the bank auction conducted by the original defendant No. 1 Andhra Bank under the provisions of the SARFAESI Act and had deposited/paid Rs. 1,92,00,000/- in the year 2009. It was submitted that the plaint is rejected under Order VII Rule 11 of the CPC mainly on the ground that the suit is barred by law of limitation as well as the proceedings under the SARFAESI Act cannot be challenged before the Civil Court and there is a bar under Section 34 of the SARFAESI Act. 10. The original defendant No. 1 submitted the application Exh.24 requesting to reject the plaint under Order VII Rule 11 of the CPC by submitting that as per Section 34 read with Sections 17, 15 and 32 of the SARFAESI Act. The suit challenging the proceedings under the SARFAESI Act shall not be maintainable and the jurisdiction of the Civil Court is ousted. 11. It was submitted that as such the immovable property in question was mortgaged by the original defendant No. 2 - Shri. Haridarshan Buildcon Pvt. Ltd. in favour of Andhra Bank on 02.07.2005 for securing the credit facilities amounting to Rs. 11. It was submitted that as such the immovable property in question was mortgaged by the original defendant No. 2 - Shri. Haridarshan Buildcon Pvt. Ltd. in favour of Andhra Bank on 02.07.2005 for securing the credit facilities amounting to Rs. 3.40 Crores, sanctioned by the original defendant No. 1 - Andhra Bank to original defendant No. 2. That the Memorandum of Entry was executed by the mortgagors on 02.07.2005 which was registered with the office of the Sub-Registrar, Savli at Sr. No. 4851/2005. It was submitted that on default of repayment of the loan/advance and on classification of the relevant loan amount as Non Performing Asset (NPA), Authorized Officer of the defendant No. 1 Bank initiated various steps under Section 13(2) and 13(4) of the SARFAESI Act for enforcement of the security interest credited in its favour on the relevant immovable property which is the subject matter of the suit. It was submitted that a demand notice under Section 13(2) of the SARFAESI Act was issued on 23.05.2007 to the borrower. Since the borrowers did not comply with the said notice, by following due process prescribed under the law, Authorized Officer of the Bank took possession of the immovable property on 21.02.2008 Subsequently, a notice of sale was published on 01.03.2008 and the lands in question came to be sold in the public bank auction on 28.03.2008 to original defendant No. 3. That the sale certificate in terms of Rule 9 of the Security Interest (Enforcement) Rules, 2002 has been issued on 28.04.2008 in the name of the original defendant No. 3. Subsequently, sale deed has been executed by the Authorized Officer of the Bank on 18.04.2009 in favour of original defendant No. 3 which has been registered with the office of Sub-Registrar, Savli at Sr. No. 496/2009. It was further submitted that on the same cause the plaintiff approached the Debts Recovery Tribunal, Ahmedabad by filing Securitization Application which came to be dismissed on the ground of limitation by the learned Debts Recovery Tribunal, Ahmedabad by order dated 22.08.2012 and thereafter, after a period of 2 years, thereafter the suit has been preferred which is barred under Section 34 of the SARFAESI Act. Therefore, it was requested to reject the plaint. 12. Therefore, it was requested to reject the plaint. 12. That by impugned common order the learned trial Court has allowed the aforesaid applications Exh.22 and 24 and has rejected the plaint under Order VII Rule 11(d) of the CPC on the ground that (1) the suit before the Civil Court for the reliefs prayed in the suit is barred by law i.e. barred by Section 34 of the SARFAESI Act as well as on the ground that the suit is barred by law of limitation. 13. Feeling aggrieved and dissatisfied with the impugned common order passed by the learned trial Court below Exhs.22 and 24 and rejecting the plaint under Order VII Rule 11(d) of the CPC, the original plaintiff has preferred the present First Appeal. 14. Shri. Virat Popat, learned advocate has appeared on behalf of the appellant herein - original plaintiff and Shri. H.M Parikh, learned advocate has appeared on behalf of the respondent herein - original defendant No. 3, who is on caveat. 15. Shri. Popat, learned advocate appearing on behalf of the original plaintiff has vehemently submitted that in the facts and circumstances of the case the learned trial Court has materially erred in rejecting the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. 16. It is submitted by Shri. Popat, learned advocate appearing on behalf of the original plaintiff has alleged fraud and according to the plaintiff the lands in question were not at all mortgaged and/or to be as security and by playing mischief and fraud and committing fraud and forgery in the Memorandum of Entry dated 02.07.2005, there was a mention of the lands in question which subsequently came to be sold by the defendant Bank in favour of defendant No. 3 and that too without issuing any notice upon the land owners, the learned trial Court ought not to have rejected the plaint at the threshold in exercise of powers under Order VII Rule 11 of the CPC. 17. It is further submitted by Shri. Popat, learned advocate appearing on behalf of the original plaintiff that as such the disputed lands in question were never mortgaged to the defendant No. 1 Bank. 17. It is further submitted by Shri. Popat, learned advocate appearing on behalf of the original plaintiff that as such the disputed lands in question were never mortgaged to the defendant No. 1 Bank. It is submitted that even if it is claimed to have been mortgaged, such a mortgage is illegal as on the date of mortgage, original defendant No. 2 through its Director was never the owner of the said lands in question. 18. It is further submitted by Shri. Popat, learned advocate appearing on behalf of the original plaintiff that when the original defendant No. 2 was not the owner at the time when the Memorandum of Entry dated 02.07.2005 was made and thereafter even he executed Agreement to Sell dated 17.07.2006 in favour of the plaintiff Maheshbhai, the Bank had no right to sell the lands in question and therefore, the transaction/sale deed executed in favour of the original defendant No. 3 is a nullity. It is further submitted by Shri. Popat, learned advocate appearing on behalf of the original plaintiff that in the present case the learned trial Court has materially erred in rejecting the plaint on the ground that the suit is barred by Section 34 of the SARFAESI Act. It is submitted that the present suit cannot be said to be barred by Section 34 of the SARFAESI Act as in the suit the plaintiff has prayed that the sale deed in favour of defendant No. 3 be canceled as there is a fraud on record and the defendant Nos. 1 and 2 did not have any right, title or interest to sell the lands in question. It is submitted that therefore it cannot be said that the suit is barred by law. It is further submitted that the relief sought in the suit cannot be said to be barred by law of limitation. It is submitted that even considering Section 14 of the Limitation Act, time taken between 2010 to 2012 i.e. proceedings before the Debts Recovery Tribunal is required to be excluded as the plaintiff was prosecuting before the Debts Recovery Tribunal bonafidely and in the year 2012 the Debts Recovery Tribunal rejected the application on the ground of limitation. Making above submissions it is requested to allow the present First Appeal. 19. Making above submissions it is requested to allow the present First Appeal. 19. Present First Appeal is vehemently opposed by Shri. Parikh, learned advocate appearing on behalf of the respondent herein - original defendant No. 3. It is submitted that in the facts and circumstances of the case the learned trial Court has not committed any error in rejecting the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. 20. It is vehemently submitted by Shri. Parikh, learned advocate appearing on behalf of the respondent herein that as such the suit filed by the plaintiff is nothing but abuse of process of Court and the law. It is submitted that as such the plaintiff has not stated the true and correct facts before the Court and has suppressed the material fact. It is submitted that the plaintiff has suppressed the material fact of pendency of Special Civil Suit No. 101/2010 filed by the original defendant No. 3 against the plaintiff and original defendant No. 2 and others in which the original defendant No. 3 has challenged the consent decree obtained by the original plaintiff and original defendant No. 2 passed in Special Civil Suit No. 548/2009. It is further submitted that in the plaint, deliberately the plaintiff has not stated how he acquired ownership. It is submitted that as such the plaintiff has deliberately withheld the fact that in the year 2009 he filed the suit against the original defendant No. 1 for specific performance of the Agreement to Sell and that there is a consent decree passed in his favour. It is submitted that as such he obtained the consent decree in collusion with original defendant No. 2 who as such are hands in gloves now. 21. It is submitted that as such he obtained the consent decree in collusion with original defendant No. 2 who as such are hands in gloves now. 21. Now, so far as the contention on behalf of the plaintiff to exclude the time taken between 2010 to 2012 on the ground that the plaintiff was prosecuting before the Debts Recovery Tribunal bonafidely and in the year 2012 the learned Debts Recovery Tribunal rejected the application on the ground of limitation and therefore, considering Section 14 of the Limitation Act, the time taken between 2010 to 2012 is required to be excluded for the purpose of counting the period of limitation is concerned, it is submitted that as such in the plaint there are no averments with respect to the limitation more particularly exclusion of the time taken before the Debts Recovery Tribunal and there are no averments in the plaint with respect to Section 14 of the Limitation Act. Relying upon Order VII Rule 6 and Order IV Rule 4 of the CPC it is submitted that there must be specific averment in the plaint. It is further submitted that as such and even the Debts Recovery Tribunal rejected the application in the year 2012, at no point of time plaintiff accepted that he was prosecuting before the wrong Forum i.e. Debts Recovery Tribunal bonafidely unless and until the plaintiff accept that he was prosecuting before another forum bonafidely which was wrong forum having no jurisdiction, the plaintiff shall not be entitled to act bonafidely under Section 14 of the Limitation Act. In support of his above submissions, he has relied upon the decision of the this Court in the case of Jayantilal and Company v. Gandaji Kuberji Thakor reported in 2013 AIR (Guj) 46. 22. It is submitted that even the learned trial Court has rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC on the ground that the relief sought in the plaint are barred by law of limitation. It is submitted that neither in the appeal memo there is a ground taken that the learned trial Court has committed error in rejecting the plaint on the ground of limitation nor any further submissions are made. It is submitted that neither in the appeal memo there is a ground taken that the learned trial Court has committed error in rejecting the plaint on the ground of limitation nor any further submissions are made. It is submitted that the learned trial Court has as such not committed any error in rejecting the plaint on the ground of limitation as the suit has been filed after a period of 3 years from the date of execution of the sale deed in favour of the original defendant No. 3 and that when the suit was filed in the year 2010 being Special Civil Suit No. 101/2010, the plaintiff had a knowledge about the said sale deed in favour of original defendant No. 3 executed in year 2008. It is submitted that therefore the learned trial Court has rightly rejected the plaint under Order VII Rule 11(d) of the CPC. 23. It is further submitted that even the conduct on the part of the plaintiff is also required to be considered. It is submitted that in the year 2007, the original defendant No. 1 Bank initiated proceedings under the SARFAESI Act with respect to the lands in question, against the borrower - original owners (as original defendant No. 2) and thereafter the possession of the lands in question which according to the Bank was mortgaged by taking the loan was taken in the year 2008 under the provisions of the SARFAESI Act and thereafter in a public auction held by the Bank, the purchasers - original defendant No. 3 has purchased the lands in question on payment of full sale consideration of Rs. 1.95 Crores. 1.95 Crores. It is submitted that thereafter the plaintiff filed the collusive suit in the year 2009 against the original owner (original defendant No. 2) on 16.09.2009 for specific performance of the alleged Agreement to Sell and obtained the consent decree within 15 days of filing the suit i.e. 09.10.2009 It is submitted that the alleged Agreement to Sell in favour of the plaintiff is alleged to be dated 17.01.2006 It is submitted that as such at the time when the plaintiff obtained the consent decree in Special Civil Suit No. 548/2009 and original owner (original defendant No. 2) agreed to execute the sale deed, even the original defendant No. 2 was not the owner of the lands in question as prior thereto the lands in question were already sold in favour of the original defendant No. 3 in a public auction and the registered sale deed was already executed in favour of original defendant No. 3. It is submitted that in the plaint there is no reference whatsoever with respect to the consent decree obtained and how he acquired the ownership right. It is submitted that therefore also the plaintiff is not entitled to any relief and the cause of action pleaded is an illusory cause of action and therefore, the plaint is required to be rejected under Order VII Rule 11 of the CPC. Making above submissions it is requested to dismiss the present First Appeal as the suit filed by the plaintiff was nothing but an abuse of process of Court and the law. Making above submissions and relying upon the decisions of the Hon'ble Supreme Court in the case of T. Arvindandam v. T.V Satyapal reported in (1977) 4 SCC 467 ; Sopan Sukhdeo Sable v. Asstt. Charity Commissioner reported in (2004) 3 SCC 137 and in the case of The Chruch of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust reported in AIR 2012 SC 3912 , it is requested to dismiss the present First Appeal. 24. Heard learned advocates appearing for respective parties at length. We have perused the impugned order passed by the learned trial Court rejecting the plaint under Order VII Rule 11(d) of the CPC. We have also considered the averments in the plaint. 25. 24. Heard learned advocates appearing for respective parties at length. We have perused the impugned order passed by the learned trial Court rejecting the plaint under Order VII Rule 11(d) of the CPC. We have also considered the averments in the plaint. 25. At the outset it is required to be noted that in the plaint which is now rejected by the learned trial Court in exercise of powers under Order VII Rule 11(d) of the CPC, the plaintiff had challenged the sale deed in favour of the original defendant No. 3 executed by original defendant No. 1 and had also challenged the Memorandum of Entry dated 02.07.2005 which was registered with office of Sub-Registrar, Savli in which there is a entry with respect to the suit lands in question stated to have been mortgaged with the Andhra Bank - original defendant No. 1 on the basis of which the original defendant No. 1 Bank advanced a huge sum in favour of the original defendant No. 2. It is also the case on behalf of the plaintiff that as the suit properties in question were not mortgaged with the original defendant No. 1 - Bank and therefore, the Bank had no right to sell the said lands in question in exercise of powers under the provisions of the SARFAESI Act. However, it is required to be noted that in the plaint as such the plaintiff had not averred how and on what basis he is claiming the ownership right in the lands in question. From the record it emerges and which is not disputed by the learned Counsel for the original plaintiff that as such the plaintiff instituted the suit in the year 2009 i.e. on 16.09.2009 against the original defendant No. 2 for specific performance of the Agreement to Sell dated 17.01.2006 being Special Civil Suit No. 548/2009 and within 15 days of filing of the said suit i.e. on 09.10.2009, the plaintiff obtained the consent decree on 09.10.2009 in which the original defendant No. 2 - original owner agreed to execute the sale deed in his favour on the basis of Agreement to Sell dated 17.01.2006 Nothing has been mentioned by the plaintiff in the present suit with respect to the consent decree obtained by in Special Civil Suit No. 548/2009. There are no averments whatsoever with respect to his ownership right in the suit lands in question and/or how he acquired the ownership rights with respect to the suit lands in question. Thus, as such the plaintiff has suppressed the material fact and has not come with clean hands. 26. It is also required to be noted that as soon as defendant No. 3 came to know about the aforesaid consent decree obtained in Special Civil Suit No. 548/2009, immediately he filed Special Civil Suit No. 101/2010 in Civil Court, Vadodara in which in the year 2010 itself the plaintiff had appeared and in which there is a reference to the sale deed executed in favour of original defendant No. 3. In the aforesaid suit the consent decree in Special Civil Suit No. 548/2009 obtained by the plaintiff herein has been challenged on the ground that the said consent decree is obtained by fraud. It is required to be noted that in the said suit there is an interim order passed below Exh.5 against the plaintiff herein. There is no reference whatsoever to the pendency of Special Civil Suit No. 101/2010 in the plaint. Thus, the plaintiff has not come with clean hands and suppressed the material fact. 27. As observed by the Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable (Supra), after considering various decisions of the Hon'ble Supreme Court in the case of Saleembhai v. State of Maharashtra reported in (2003) 1 SCC 557 ; ITC Limited v. Debts Recovery Appellate Tribunalreported in (1998) 2 SCC 70 and the decision in the case of T. Arvindandam (Supra), the Hon'ble Supreme Court has observed the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the CPC is whether a real cause of question has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the CPC. In para 12 the Hon'ble Supreme Court has further observed that the trial Court must remember that if on a meaningful and not formal reading of the of the plaint it is manifestly vexatious and merit-less in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the CPC. 28. It is required to be noted and it has come on record and so stated in the application Exh.23 on the basis of the Memorandum of Entry executed by the mortgagors - original defendant No. 2 on 02.07.2005, which was registered with the office of Sub-Registrar, Savli at Sr. No. 4851/2005. The original defendant No. 1 advanced the credit facilities amounting to Rs. 3.40 Crores. In the Memorandum of Entry of putting the lands in question as collateral security, there is a reference to the lands in question. Neither the original defendant No. 2 who filed the credit facilities amounting to Rs. 3.40 Crores made any grievance. It appears that thereafter on default of the repayment of the amount due and payable the defendant 1 Bank initiated various steps under Section 13(2) and 13(4) of the SARFAESI Act for enforcement of the security interest created in favour of the Bank and created on the immovable properties, which is the subject matter of the suit. That demand notice under Section 13(2) of the SARFAESI Act was issued on 23.05.2007 Since borrowers did not comply with the said notice, after following due process prescribed under the law, the Authorized Officer of the Bank took possession of immovable property on 21.02.2008 and thereafter, after following due procedure and publishing the notice of sale on 01.03.2008, the lands in question have been sold in public auction on 28.03.2008 in favour of defendant No. 3 for a sale consideration of Rs. 1.95 Crores and even the said certificate has been issued in favour of defendant No. 3 on 28.04.2008 and thereafter the sale deed has been executed by the Authorized Officer of the defendant No. 1 Bank on 18.04.2009 in favour of defendant No. 3 which has been registered with the office of the Sub-Registrar, Savli at Sr. No. 496/2009. That thereafter the plaintiff approached the Debts Recovery Tribunal on the very same cause by filing Securitization Application which came to be dismissed on the ground of limitation by order dated 22.08.2012 and thereafter, after a period of approximately 2 years the present suit has been preferred. Thus, from the aforesaid the relief sought challenging the sale deed in favour of defendant No. 3 can be said to be clearly barred by law of limitation as the same is filed after a period of 3 years. At this stage it is required to be noted that in the suit filed by the defendant No. 3 being Special Civil Suit No. 101/2010, there is a reference to the sale deed executed in favour of defendant No. 3 dated 18.04.2009 and in the said suit the original plaintiff had appeared. The suit has been preferred in the year 2014 i.e. beyond the period of 3 years from the date of knowledge of the sale deed. Considering the aforesaid facts and circumstances and considering Section 34 of the SARFAESI Act as well as on the ground of limitation when the learned trial Court has rejected the plaint, in the facts and circumstances of the case, it cannot be said that the learned trial Court has committed any error in rejecting the plaint. 29. Now, so far as the submission by Shri. Popat, learned advocate appearing on behalf of the original plaintiff that as the plaintiff approached the learned Debts Recovery Tribunal, Ahmedabad in the year 2010, which came to be rejected by the learned Debts Recovery Tribunal by order dated 22.08.2012 on the ground of limitation and therefore, the time taken before the learned Debts Recovery Tribunal is required to be excluded for the purpose of counting the period of limitation as per Section 14 of the Limitation Act is concerned, aforesaid has no substance. It is required to be noted that as such in the plaint no such averments have been made. It is required to be noted that as such in the plaint no such averments have been made. Nothing has been pleaded in the plaint to exclude the period between 2010 to 2012. As provided under Order VII Rule 6 of the CPC where the suit is instituted after the expiry of period prescribed, by the law of limitation, the plaint shall show the ground upon which the exemption from such law is claimed. No such grounds are mentioned in the plaint. Even no such ground is made before the learned trial Court. Therefore, the proviso to Order VII Rule 6 of the CPC shall not be of any help to the plaintiff. At this stage it is required to be noted that it is not the case on behalf of the plaintiff that he was bonafidely prosecuting before the Debts Recovery Tribunal which was a wrong forum. At no point of time the plaintiff has accepted that he was prosecuting before the wrong forum i.e. Debts Recovery Tribunal bonafidely. Under the circumstances as held by this Court in case of Jayantilal and Company (Supra), unless and until the plaintiff accepts that he was prosecuting before another forum which was a wrong forum having no jurisdiction bonafidely, the plaintiff shall not be entitled to any benefit under Section 14 of the Limitation Act. 30. Now, so far as the contention on behalf of the plaintiff that as the fraud is alleged the learned trial Court ought not to have rejected the plaint under Order VII Rule 11 of the CPC is concerned, as such it is required to be noted that merely because it is averred in the plaint that fraud is committed, is not sufficient. As required under Order VII Rule 4 of the CPC, in all cases in which the party claiming relies on any misrepresentation, fraud are required to be specifically averred and stated in the pleading. 31. In the present case even the conduct on the part of the plaintiff is also required to be considered. As observed hereinabove the plaintiff has not come up with clean hands and has suppressed the material fact before the Court. As observed hereinabove the plaintiff first of all has not stated anything with respect to how he has acquired the ownership right. As observed hereinabove the plaintiff has not come up with clean hands and has suppressed the material fact before the Court. As observed hereinabove the plaintiff first of all has not stated anything with respect to how he has acquired the ownership right. Infact he has not stated anything that as such he is the owner of the suit lands in question and how? He has suppressed the fact that there is a consent decree obtained by him in Special Civil Suit No. 548/2009 and that too within a period of 15 days of filing the suit in which the original defendant No. 2 herein had agreed to the execution of the Agreement to Sell dated 17.01.2006 and has agreed to pass a decree for specific performance in favour of the plaintiff. At this stage it is required to be noted that at the time when the plaintiff and the original defendant No. 2 herein obtained the consent decree, the original defendant No. 2 as such was not owner of the suit lands in question and as such the properties in question were already sold in favour of defendant No. 3 in a bank public auction and the sale deed was already executed in favour of defendant No. 3 which was registered with the office of Sub-Registrar, Savli, District Vadodara. Therefore, despite the fact that the original defendant No. 2 was not the owner of the lands in question in the year 2009 which was within the knowledge of the plaintiff as well as defendant No. 2, they obtained the collusive consent decree. As observed hereinabove, even there is no reference to the pendency of the Special Civil Suit No. 101/2010 filed by the defendant No. 3 against the plaintiff and defendant No. 2 in which the consent decree dated 09.10.2009 has been challenged on the ground that the same is obtained by fraud and it is a collusive decree. At this stage the decision of the Hon'ble Supreme Court in the case of S.P Chengalvaraya Naidu (Dead) by L.R.s v. Jagannath (Dead) by L.R.s reported in 1994 (1) GLH 81 (Paras 5 and 6) are required to be referred to. As observed by the Hon'ble Supreme Court in the said decision, a person, whose case is based on falsehood, had no right to approach the Court and it can be summarily thrown out at any stage of litigation. 32. As observed by the Hon'ble Supreme Court in the said decision, a person, whose case is based on falsehood, had no right to approach the Court and it can be summarily thrown out at any stage of litigation. 32. In the case of T. Arvindandam while considering the very same provision i.e. Order VII Rule 11 of the CPC and the decree of trial Court in considering the such application, the Hon'ble Supreme Court in para 5 has observed and held as under: “5. We have not the slightest hesitation in condemning the petitioner for gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and merit-less, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, C.P.C, taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C An activist Judge is the answer to irresponsible law suits.” 33. In the case of The Chruch of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust reported in AIR 2012 SC 3912 , in para 8 to 10 has observed and held as under: “8. While scrutinizing the plaint averments, it is the bounden duty of the trial Court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause 9 Page 10 of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. 9. In A.B.C Laminart Pvt. Ltd. v. A.P Agencies, Salem (1989) 2 SCC163: ( AIR 1989 SC 1239 ), this Court explained the meaning of “cause of action” as follows: “12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.” 10. It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai (1994) 6 SCC 322 , wherein a three Judge Bench of this Court held as under: “28. By “cause of action” it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court, (Cooke v. Gill, 1873 LR 8 CP 107). In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.” It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.” It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit.” 34. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and applying the same to the facts of the case on hand, we are of the opinion that the suit filed by the plaintiff is nothing but an abuse of process of Court and is nothing but manifestly vexatious and merit-less and therefore, this is a fit case to nip in the bud. 35. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the learned trial Court rejecting the plaint. We see no reason to interfere with the impugned order passed by the learned trial Court rejecting the plaint under Order VII Rule 11 of the CPC. 36. In view of the above and for the reasons stated above, present First Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.