* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No.579/2009 in CS (OS) No.2047/2008
Reserved on : 11.1.2010
% Date of decision : 18.1.2010
BHASIN TOBACCOS LTD. & ORS. ..... Plaintiffs
Through: Mr.Sanjay Jain, Sr.Adv. with
Mr.Anurag Mangla and Ms.Nitika Mangla,
Advocates.
versus
GAMBRO NEXIM (INDIA) MEDICAL LTD. & ORS.
..... Defendants
Through: Mr.Mohan Shandilya and
Ms.Ananya Bhattacharya, Advocates for
D-1 to 3.
Mr.Sunil Magon, Advocate for D-4 & 5.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
INDERMEET KAUR, J.
1. This is an application under Order 7 Rule 11 read with Section 151 CPC filed on behalf of defendants no.1 to 3 for rejection of the plaint as no cause of action has been disclosed qua them.
CS (OS) No.2047/2008 Page 1 of Page 7
2. The present suit is a suit for declaration, recovery, mandatory and permanent injunction. The suit relates to the disputed property bearing no.47, Ring Road, Lajpat Nagar-III, New Delhi-110024. The case of the plaintiffs is that they had purchased this property from defendant no.4, namely, M/s Motor and General Finance Ltd. vide sale agreement and general power of attorney dated 29.4.2000, for a total sale consideration of Rs.4.75 crores which has been fully paid. Defendant no.4 had purchased this property from defendants no.1 to 3 vide agreement to sell dated 27.3.1997 which had been executed in favour of defendant no.4 accompanied by a registered general power of attorney executed by defendants no.2 and 3 acting for and on behalf of defendant no.1 in favour of defendant no.5. Defendant no.5 was the Attorney and Executive Director of defendant no.4. Defendant no.1 is a company incorporated under the Indian Companies Act, of whom defendant no.2 is the Managing Director and defendant no.3 is the Director.
3. It is not in dispute that the plaintiffs are in physical possession of the said property.
4. In this application, it has been averred that the suit does not disclose any cause of action qua the defendants; defendant no.1 is the absolute, legal and true owner of the disputed property and the suit property stands duly mutated in the name of defendant no.1. Plaintiffs have not come to the Court with clean hands. Plaintiffs had paid a sum of Rs.5,20,000/- to defendant no.4 on 16.12.1999 as CS (OS) No.2047/2008 Page 2 of Page 7 conversion fee payable to the L&DO for surreptitiously and illegally getting the property of defendants no.1 to 3 converted from lease hold to free hold without their knowledge and consent; this application had been summarily dismissed by the L&DO as it is only an owner of the property who has the right to get the property converted from lease hold to free hold. Plaintiffs from the very beginning knew that defendant no.4 was not the owner of the property; plaintiffs in connivance with defendants no.4 and 5 have tried to unlawfully usurp this property which is the subject matter of the present suit. Defendants no.4 and 5 not being the owners of the said property had no right to sell the property; the transaction between defendants no.4 and 5 and the plaintiffs was admittedly based on an agreement to sell and a general power of attorney; the title deed/sale deed of the property is not forthcoming and has not been placed on record. There is no privity of contract between the plaintiffs and the answering defendants.
5. Orally the application has also been argued on the point of limitation, although, there is not a single averment of the same in the application filed by the applicants. On the point of limitation, it has been averred that even as per the averments made in the plaint and the documents annexed along with, the plaintiffs had express knowledge that there was a dispute qua this property on 12.7.2003. Suit No. 99/2003 had been filed by the plaintiffs against defendant No. 2 herein seeking permanent injunction from CS (OS) No.2047/2008 Page 3 of Page 7 dispossession, except by due process of law from the suit property. Cause of action had accrued in favour of the plaintiffs even as per their own showing in July 2003 when the said suit was filed. Under Article 54 of the Indian Limitation Act, the period of three years for filing the present suit expired on 11.7.2006; the present plaint having been filed on 24.9.2008, is much beyond the period of limitation and is liable to be dismissed on this ground as well.
6. Application has been opposed. It is submitted that the plaintiffs have acquired the title of the disputed property on the basis of registered power of attorney and the agreement to sell; this is a recognised transfer and vests "interest" of the plaintiffs in the immovable property in question under the provisions of the Transfer of Property Act. It is submitted that the case of the plaintiffs is that they had purchased this property from defendants no.4 and 5 and although there is no direct privity of contract between the plaintiffs and the applicants, yet it is the applicants who are creating hindrance in the legal enjoyment of the said property by the plaintiffs and as such they have become necessary parties to the suit. The suit is also within limitation.
7. It is settled law that while deciding an application under Order 7 Rule 11 CPC it is only the plaint and the material which is presented alongwith the plaint which has to be seen; if upon an examination of the plaint and documents filed alongwith plaint, it appears that the plaint is barred for any of the reasons as contained CS (OS) No.2047/2008 Page 4 of Page 7 in Order 7 Rule 11 CPC; the plaint is liable to be rejected but not otherwise.
8. The averments made in the plaint clearly decipher that defendants no.1 to 3 are denying the title of the plaintiff to the suit property although not denying the title of defendants no.4 and 5. In mid August, 2008, the plaintiffs learnt from the market that defendant no.2 by representing himself to be the owner of the property was trying to create a third party interest in the property and a publication to the said effect had also been effected in the „Hindustan Times‟ on 1.9.2008 whereby defendants no.1 to 3 alleged themselves to be the owners of the said property; giving the plaintiffs a cause of action. The plaint has been filed on 24.9.2008.
9. Under Section 3 of the Limitation Act there is a bar to the institution of a suit after the expiration of the prescribed period of limitation. In other words a plaint shall be rejected under Order 7 Rule 11 sub clause (d) if the same has been instituted after the expiration of the prescribed period of limitation and an obligation is cast upon the Court to examine the plaint and if the plaint is barred by limitation or for any other reason as contained in Order 7 Rule 11 CPC, the Court must reject the plaint.
10. In the instant case, the fact is that there is no written plea taken in the present application by the defendants on the question of limitation. Suit No. 99/2003 had been filed by the plaintiff against CS (OS) No.2047/2008 Page 5 of Page 7 the defendant No.2 restraining him from dispossessing the plaintiff from the suit property as on 12.07.2003 defendant No. 2 had claimed ownership in the suit property, claiming to have a dispute with MGF on this issue. Suit had been withdrawn on 05.08.2003 on the statement of defendant No.2 that he would not dispossess the plaintiff except with the due process of law. Matter stood settled. On 01.09.2009 an advertisement had been published in the „Hindustan Times‟ when the plaintiffs learnt that defendant No. 1 to 3 are again holding themselves out as owners of the said property. Present suit filed on 24.09.2009 is prima facie within limitation. On a plain reading of the plaint the bar of limitation is not attracted. However, this issue is left open to be decided at the time of trial.
11. The plaintiffs have claimed their title to the suit property on the basis of an agreement to sell and the registered general power of attorney which has been executed by defendants no.4 and 5 in their favour; defendants no.4 and 5 had in turn purchased this property on the basis of a registered general power of attorney and an agreement to sell from defendants no.1 to 3. Defendants no.1 to 3 i.e. present applicants were creating hindrance in the way of the plaintiffs to enjoy the disputed property, the physical possession of which is admittedly with the plaintiffs. Defendants no.1 to 3 are not strangers to this litigation; in fact it is they who as per the averments in the plaint are creating impediments in the way of the plaintiffs. The strict doctrine of privity of contract the foundation of which was laid down in Tweedle vs. Atkinson(reported in 123 E.R.
CS (OS) No.2047/2008 Page 6 of Page 7
762) is based on the principle that a stranger to the consideration cannot sustain the action on a promise between two persons unless he has in some way intervened in the agreement. The Indian Contract Act, 1872 has codified the law of contract. Section 2 (d) of the said Act postulates a situation that consideration for a contract can proceed from any person and not necessarily from the parties to the contract.
12. There is no merit in the application of the defendants. It is dismissed.
JANUARY 18, 2009 (INDERMEET KAUR) `ns' JUDGE CS (OS) No.2047/2008 Page 7 of Page 7