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2019 DIGILAW 361 (ORI)

Soma Banerjee v. Sridhar Biswal

2019-04-26

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This Regular First Appeal involves a challenge to the impugned order/judgment dated 25.08.2012 passed by the Civil Judge (Sr. Divn.), Jajapur Road in C.S. No.214 of 2011 thereby dismissing the suit U/o-7 Rule 11 (a) & (d) of C.P.C. 2. Short background involved in the case is that the appellant as plaintiff filed Civil Suit No.214 of 2011 making the present respondents as defendants and the fact as laid by the plaintiff therein is, the defendants are lawful bona fide and absolute owner of the land mentioned in the schedule therein. The defendants entered into construction by availing loan for construction of a multi storied building complex suitable for hotel in the name of "Shruti Inn. Pvt. Ltd.". The plaintiff claimed that after development upto some extent the defendants could not be in a position to complete the construction work of the building and for pressing demand of the creditors for payment of the loan dues, under compelling situation the defendants decided to sale away the land and building. When the defendants were in search of prospective buyers, M/s. Jai Jagannath Associates at Station Road, Jamshedpur who were also already involved in hotel business, proposed for purchase of the defendants property. Such proposal being accepted by the defendant, final consideration money was settled to at Rs.6,25,00,000/- (Rupees Six Crores Twenty Five Lakhs). Accordingly, an agreement was also entered into between the parties on 18.10.2010, consequently, the agreement was also signed by four partners. It is further averred therein that as per the terms and conditions in the agreement, the plaintiffs went on performing their part and that contract further disclosed that the share to fall on the respective parties by virtue of the conditions of the agreement. The plaintiff in paragraph no.5 stated that the defendants availed loan from the State Bank of India and as per the agreement an amount of Rs.2,07,00,000/- (Rupees Two crores seven lakhs) was pending due against the defendants in the Branch of the State Bank of India and the said amount was to be repaid by the firm of the plaintiff. The plaintiff in paragraph no.5 stated that the defendants availed loan from the State Bank of India and as per the agreement an amount of Rs.2,07,00,000/- (Rupees Two crores seven lakhs) was pending due against the defendants in the Branch of the State Bank of India and the said amount was to be repaid by the firm of the plaintiff. While alleging that even though defendants were declared as NPA, this fact was not brought to the notice of the plaintiff and it is further stated that in the meantime, the partnership firm namely M/s.Jai Jagannath Associates at Station Road, Jamshedpur has been dissolved and the suit property in fact fell to the allotment of the plaintiff. Referring to the agreement, learned counsel for the plaintiff contended that the defendants had to execute and register the conveyance bill on 15.04.2011 after full and final payment of the consideration amount. It is alleged that the plaintiff though approached the defendants to register the sale deed on several occasion on receipt of the balance consideration money, the defendants somehow played dilatory tactics and avoided to perform their part. Finding that the defendants are trying to sale away the suit property to some outsiders behind back of the plaintiff and such action remain contrary to the agreement entered into by the parties on18.02.2010 the plaintiff finding no other option served a pleader notice on the defendants on 12.07.2011 and ultimately, finding no response pursuant to the pleader notice the plaintiff filed suit for following relief : "Prayer Therefore, the plaintiff prays:- (i) Let the defendants be directed to execute and register a sale deed in respect of the suit land in favour of the plaintiff on receiving Rs.43262700/- towards rest of the consideration amount .. after deducting Rs.1,92,37,300-the amount already paid within a time limit to be fixed by the court. (ii) Let the Honble Court execute and register a Sale Deed in respect of the suit land in favour of the plaintiff on deposit of Rs.43262700/- in the court towards rest of the consideration amount after deducting Rs.1,92,37,300/- the amount already paid in case the defendants failed to execute and register such sale deed within a time limit to be fixed by the court. (iii) Let the defendants be temporarily restrained from alieanating the suit land in favour of any third party during pendency of the suit. (iii) Let the defendants be temporarily restrained from alieanating the suit land in favour of any third party during pendency of the suit. (iv) Let cost of the suit be decreed in favour of the plaintiff and against the defendants. (v) Let such other relief or reliefs to which the plaintiff is entitled to be given to her." 3. In response to notice, the defendant no.1 on his appearance filed an application under Order 7 Rule 11 of C.P.C. praying therein for dismissal of the suit inter alia contending therein that the suit has not been filed by proper person rather the suit is at the instance of a stranger. It is also urged therein that the plaintiff was never a party to the contract for specific performance. It was also claimed that the plaintiff was neither a partner nor a legal and bona fide interest holder in the said firm. Further, on the premises of the plaintiff not being a party to any agreement between him and defendant no.1 and nor even there involve any agreement involving defendants with the plaintiff, it was claimed that the plaintiff has no cause of action for filing the suit. The defendants also contested the suit on the premises of the plaint being barred by law of the Indian Contract Act and the Specific Relief Act. In the above background of the matter and on the premises of attracting the provision at Order 7 Rule 11 (a) & (d) of the C.P.C, the respondent no.1 the defendant no.1 claimed for rejection of the plaint. The defendant no.2 had also a similar application challenging the entertainment of the plaint being hit by the provision of Order 7 Rule 11(a) & (d) of the C.P.C. 4. Filing objection the plaintiff-appellant on reiteration of the fact involving the plaint challenged the petition on the premises that the issues raised by the defendants can be gone into by framing appropriate issues involving the suit and decided entering into evidence. The plaintiff also challenged the application of provision U/s.-59(2) & Section 69 3(a) of the Indian Partnership Act to the case there. The plaintiff also challenged the application of provision U/s.-59(2) & Section 69 3(a) of the Indian Partnership Act to the case there. Hearing the rival contentions of the parties, the trial court entering into hearing of the application under Order 7 Rule 11 of C.P.C. at the instance of the defendants therein, finally while allowing the application under Order 7 Rule 11 of C.P.C. rejected the plaint as not maintainable, resulting this present RFA. 5. Advancing his submission, Shri J.K. Mishra, learned Senior Advocate appearing on behalf of the plaintiff-appellant on reiteration of the facts involving the plaint averments and the objection to the Order 7 Rule 11 application contended that for the partnership, M/s. Jai Jagannath Associates at Station Road, Jamshedpur being involved in the contract for specific performance, the plaintiff has a right to sue the parties involved therein. Further on the premises of pendency of another suit vide Civil Suit No.215 of 2012 challenging a sale deed involved therein, Shri J.K. Mishra, learned Senior Counsel for the appellant submitted that for the dismissal of the suit applying provision under Order 7 Rule 11 of C.P.C., her other suit is likely to be affected. Further taking this Court to the agreement dated 18.10.2010 between the parties and the copy of partnership deed dated 11.10.2010 and further bringing reference to a registered deed of retirement-cum-reconstitution of partnership deed dated 22.10.2011 learned Senior Counsel for the appellant contended that the plaintiff has an interest involving the dispute involving the suit. This Court considering the registered deed of retirement-cum- reconstitution for partnership deed dated 22.10.2011 remaining outside the purview of the plaint averment and the documents therein observes, such documents is not within the consideration purview. Further, taking into account the settled position of law that the application under Order 7 Rule 11 of C.P.C. should be confined to consideration of the application vis--vis the plaint and the document available therein, this Court finds, the registered deed of retirement-cum-reconstitution of the partnership dated 22.10.2011 cannot be considered for the purpose. This Court further also observes, the Order 7 Rule 11 application has also nowhere indicated existence of any such deed or even plaintiffs right flowing from any such deed. Learned Senior Counsel for the appellant further taking this Court to the decisions in the case of Orissa Mining Corporation Ltd. versus M/s.Klockner and Co. This Court further also observes, the Order 7 Rule 11 application has also nowhere indicated existence of any such deed or even plaintiffs right flowing from any such deed. Learned Senior Counsel for the appellant further taking this Court to the decisions in the case of Orissa Mining Corporation Ltd. versus M/s.Klockner and Co. as reported in AIR 1996 Orissa 163, in the case of M/s. Raptakos Brett & Co.Ltd. versus Ganesh Property as reported in AIR 1998 SC 3085 , in the case of Popat and Kotecha Property versus State Bank of India Staff Association as reported in (2005) 7 SCC 510 , in the case of P.V. Guru Raj Reddy versus P. Neeradha Reddy & others as reported in 2015(I)OLR(SC)714, in the case of Kuldeep Singh Pathania versus Bikram Singh Jaryal as reported in AIR 2017 SC 593 , in the case of M/s. Kalinga Utkal Buildwell Private Ltd. having its registered Office at near Car Fashion, Mani Sahoo Chhak, Cuttack versus Orissa Textile and Steels Employees, Nayabazar, Cuttack & Others as reported in 2017(I)OLR 894, in the case of Sejal Glass Ltd. versus Navilan Merchants Pvt. Ltd. as reported in 2017(II)OLR(SC) 655 submitted that the view of the trial court involving the Order 7 Rule 11 application not only remain contrary to the materials available on record but also remain contrary to law of the land vide the above decisions. 6. Shri S.P. Mishra, learned Senior Advocate on the other hand defending the judgment of the trial court taking this Court to the specific plea involving the plaint by the plaintiff, the deed of partnership, the agreement for sale deed 11.10.2010 and dated 18.10.2010 respectively contended that the plaintiff has no involvement in the defendants entering into a contract with the four partnership of M/s. Jai Jagannath Associates. Further, taking this Court to the pleading involving the Order 7 Rule 11 of C.P.C. application and referring to the provision at Order 7 Rule 11(a) & (d) of C.P.C., Shri S.P. Mishra, learned Senior Advocate contended that not only the plaintiff has no cause of action in bringing the suit but the suit is also hit by law both under the provisions of Indian Contract Act and the Specific Relief Act. Shri S.P. Mishra, learned Senior Advocate further relying on a decision of the Honble Apex Court in the case of T. Arivandandam versus T.V. Satyapal and another as reported in 1977 (4) SCC467 submitted that the decision referred to hereinabove has also direct support to the case of the defendants. Shri S.P. Mishra, learned Senior Advocate in the above premises submitted that in the event, the suit is allowed to be continued, there will not only be wastage of time of the parties but there will also be involving the abuse of process of law as well as unnecessary harassment to the defendants who will be forced to face a litigation knowing fully that such exercise will yield no result. 7. Considering the rival contentions of the parties and after going through the documents, the plaint averments and the document appended to the plaint involving the Civil Suit No.214 of 2011, this Court on perusal of the plaint averments finds, the plaintiff has the following specific plea in paragraph no.2 "That the defendants are the lawful bonafide and absolute owners of the lands mentioned in the schedule below." in paragraph no.3 again it appears, "That the plaintiff was partner of M/s.Jai Jagannath Associate at Station Road, Jamshedpur. Accordingly, an agreement was entered into between the parties which was reduced to writing on 18th October 2010 and was executed in presence of witnesses.., On behalf of M/s. Jai Jagannath Associate four partners namely Chandranath Banerjee, Somanath Banerjee, Debbrata Banerjee and Jaharlal Ghosh have signed on the said agreement." In paragraph no.5 "The said amount was to be repaid by the firm of the plaintiff. In the meantime recently the partnership of the firm M/s. Jai Jagannath Associate has been dissolved and the suit property to be purchased from the defendants actually fell to the allotment of the plaintiff." In the above background of the matter and claim, it appears, the plaintiff made the prayers involved therein. Looking to the serious objection of the defendants that the plaintiff was nowhere a party to the transaction between the parties involving the agreement for sale on 18.10.2010, this Court is now required to consider as to whether the plaintiff has any involvement in the agreement for sale? Looking to the serious objection of the defendants that the plaintiff was nowhere a party to the transaction between the parties involving the agreement for sale on 18.10.2010, this Court is now required to consider as to whether the plaintiff has any involvement in the agreement for sale? and at the said time, this Court is also required to consider as to whether the sale agreement is at the instance of all the partners of M/s.Jai Jagannath Associates? This Court here finds, the plaintiff to satisfy his claim as enclosed in the plaint, going through the copy of partnership dated 11.10.2010 as well as the agreement dated 18.10.2010 and on perusal of the partnership involving M/s.Jai Jagannath Associates dated 18.10.2010, this Court finds from the deed of partnership dated 11.10.2010, the partnership involving Shri Chandranath Banerjee, S/o-Late M.N. Banerjee on the first part and Smt. Soma Banerjee, W/o-Sri Chandra Nath Banerjee, the second part and Shri Somenath Banerjee, S/o-Late M.N. Banerjee the third part and Smt. Aparna Banerjee, W/o-Sri Somenath Banerjee the forth part and Shri Debabrata Banerjee, S/o-Late M.N. Banerjee the fifth part and Smt. Sukriti Banerjee, W/o-Sri Debabrata Banerjee, the sixth part and Shri Jahar Lal Ghosh, S/o-Late Nitya Nana Ghosh, the seventh part and Smt. Sujata Ghosh W/o-Jahar Lal Ghosh. The deed of partnership at clause 7 also discloses the profit & loss of business between eight partners involved therein. It is, at this stage of the matter the other document that is the agreement for sale this Court finds, the agreement for sale at the cause title portion discloses as above: "AGREEMENT FOR SALE This agreement for sale is made on the day of 18th October, 2010 at Jajpur, Orissa: Sridhar Biswal, S/o-Rntakar Biswal Saraswati Biswal, W/o-Sridhar Biswal, both are residentof Duburi Kalingangar, P.O.-Jajpur, District-Jajpur, State-Orissa hereinafter called the First Party/Saleer of the ONE PART: AND M/s. Jai Jaganath Asociate, Station Road, Jugsalai, Jamshedpur. (1) Sri Chandra Nath Banerjee (2) Sri Somanath Banerjee (3) Sri Debabrata banerjee All son of Late Monindra nath Benerjee. (4) Sri Jaharlal Ghosh, S/o-Late Nitya Nanda Ghosh resident of Station Road, Jugsalai, Jamshedpur, Dist.-East Singhbum, Jharkhand. (1) Sri Chandra Nath Banerjee (2) Sri Somanath Banerjee (3) Sri Debabrata banerjee All son of Late Monindra nath Benerjee. (4) Sri Jaharlal Ghosh, S/o-Late Nitya Nanda Ghosh resident of Station Road, Jugsalai, Jamshedpur, Dist.-East Singhbum, Jharkhand. AND WHEREAS, the 2nd party members heard the desirous of the first parties members to sale the schedule lands first party property approached them for purchasing the given below landed property at the highest consideration value of Rs.6.20 crores (Rupees six crores twenty five lakhs) decided by the Panchabhadran of this locality." The conditions involving sale agreement also refer all through involving the second party members or second party at some places. The agreement for sale is absolutely silent on the interest of other shareholder involving the partnership agreement indicated hereinabove. It is in these premises, this Court further finds, Smt. Soma Banerjee the plaintiff appellant though a partner in the partnership deed dated 18.10.2010 but has absolutely no involvement in the agreement for sale involving the suit. It is, at this juncture this Court for the specific plea and the specific disclosures as recorded hereinabove from both the partnership deed as well as the agreement for sale finds, the plaintiff has absolutely no cause of action involving the deed of agreement for sale. Consequently, this Court is of the opinion that it may not be appropriate in entertaining any suit at the behest of such parties involving the sale deed. This Court is therefore of the firm view that there is no cause of action at the instance of the plaintiff to institute the suit involved herein and that there is satisfaction of Rule 11(a) of Order 7 of C.P.C. It is at this stage taking into account the provision at Section 69(2) of the Indian Partnership Act, 1932 this Court finds as follows: "69. Effect of non-registration-(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm." Taking into account that the respondent-defendant taken help of provision of Section 69(2) of the Act, 1932 this Court observes, the plaintiff as a partner in the registered partnership firm since is not the buyer involving sale transaction involved herein, this Court also finds, the provision at Section 69(2) of the Act, 1932 comes to the rescue of the defendant. Thus defendants also satisfy the attraction of provision at Rule 11(d) of the Order 7 of C.P.C. to the case at hand. It is here taking into account the decision cited by the learned Senior Counsel for the appellant referred to hereinabove and for the discussions hereinabove, this Court finds, the decisions cited by the appellant dont come to the rescue of the plaintiff. On the other hand this Court going through the decision cited by Shri S.P. Mishra, learned Senior Advocate for the respondent in the case of T. Arivandandam versus T.V. Satyapal and another as reported in (1977) 4 SCC 467 , finds, the decision of the Honble Apex Court while considering such aspect in paragraph nos.5, 6 & 7 has come to observe as follows: "5. We have not the slightest hesitation in condemning the petitioner for the 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 plaintiffs. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexatious, and meritless, 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. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexatious, and meritless, 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. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr.XI) and must be triggered against them. In this case, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: "It is dangerous to be too good." 6. The trial Court in this case will remind itself of Section 35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned. 7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy." 8. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy." 8. This Court here takes into account some other judgments and discussion as follows:- (1) Vide 2012(II)OLRSC501, this Court finds, the Honble Apex Court clearly observes that a cause of action must include some act done by the defendant and in absence of which no cause of action can possibly accrue. (2) In AIR 1987 SC 1577 the Honble Apex Court clearly held that plaint can be rejected if the plaint does not disclose cause of action. Taking into account both the above decisions, this Court finds, both the above decisions have the support to the case of the defendants/respondents. 9. Reading the aforesaid decisions, this Court finds, this decision has direct support to the case of the Defendants/ Respondents and also confirms the view of this Court as indicated hereinabove. 10. It is keeping in view the findings of this Court, the Law of the land as discussed hereinabove, entering into the discussions in the impugned judgment, this Court is in full agreement with the reasonings of the trial court and as such finds, there is no infirmity in the trial court judgment requiring any interference in the same. 11. Considering the rival contentions of the parties, taking into account the discussion and decision of the trial court involved in the impugned order, further for the observation of this Court made hereinabove and the support of law to the case at hand vide (1977) 4 SCC 467 , 2012 (II) OLR (SC) 501 and AIR 1987 SC 1577 , this Court while affirming the view of the trial court involving allowing the application under Order 7 Rule 11 of C.P.C., dismisses the RFA on the premises of having no merit. No cost.