Vantage Construction (P) Ltd. vs Satnam Singh Gill & Anr.
1999 Latest Caselaw 698 Del

ORDER

Manmohan Sarin, J.

1. This is an application moved under Order 7 Rule 11 CPC by defendant No. 2 for rejection of the plaint. Defendants had also filed the written statement, to which the plaintiff filed replication.

2. The plaintiff had instituted the suit for recovery of Rs 5,30,000/with interest. The case of the plaintiff in brief is that the plaintiff Company was on the look out for purchase of land and had identified lands,200 bighas of land at Bulandshahar, U.P. belonging to one Mr. Lajpatrai and 45 bighas of land near Haldwani belonging to M/s. Pushpanjali Sales Pvt.Ltd.

3. The plaintiff averred in the plaint that a sum of Rs. 7 lacs was advanced to the defendant No. 1 for payment towards the land to be purchased from M/s. Pushpanjail Sales Pvt. Ltd. A sum of Rs 3 lacs was paid through two cheques which defendant No. 2 delivered to M/s. Pushpanjail Sales Pvt. Ltd. and were duly encashed. A further sum of Rs. 4 lacs was advanced by two bearer cheques of Rs. 2 lacs each, which the defendant No. 1 encashed himself but advised the plaintiff that the said sum of Rs. 4 lacs had been paid to M/s.Pushpanjali Sales Pvt. Ltd. Another sum of Rs 2lacs was paid to defendant No. 1 by the plaintiff for the lands at Bulandshahar to be paid to the vendor Sh. Lajpatrai. The plaintiff claims that defendant No. 1 passed on only a sum of Rs 1 lakh to Sh. Lajpatrai against the sum of Rs 2 lacs.

4. The plaintiff claims that since there was no progress on the transactions, the plaintiff company sought confirmation from defendant No. 1 with regard to the amounts paid. The defendant No. 1 in response gave the undermentioned confirmation dated 25.6.1989.

"I, Satnam Singh Gill, S/O Late Dr. G.S. Gill resident of F188/A, M.I.G. Flats, Nand Nagri, Delhi-110093, confirm that Rupees four lakhs given to me in two instalments of Rs two lakhs each, was delivered to Mr. Kishore Lal, (M.P.) on behalf of Vantage Construction (P) Ltd., 37 Prithviraj Road, New Delhi,towards the purchase of about 45 bighas of land in village Kuleshra and Haldwani (U.P.) which has been confirmed to be sold to vantage Construction (P) Ltd. Sardar Patel Marg, New Delhi 110021.

These four lakhs Rupees have been received by me from Vantage Construction (P) Ltd. and I have no claim to this money now or in he future. Original receipts from Kishore Lal have been given to Mr. Chawla."

Together with the aforesaid confirmation, the plaintiff claims that defendant No. 1 handed over to the plaintiff two receipts dated 5.3.1989 and 16.3.1989 for Rs 2.0 lakhs each, signed by defendant No. 2 acknowledging receipt of the total sum of Rs 4.0 lakhs.

Defendant No. 1 in its written statement has denied giving signed confirmation to the plaintiff dated 25.6.1989 or the two receipts dated 5.3.1989 and 16.3.1989, allegedly executed by defendant No. 2, acknowledging the receipt of Rs 4.0 lakhs from defendant No. 1. These allegations are denied as being false and concocted. It is claimed by defendant No. 2 that he was not involved in any such payments by the plaintiff to the owners of the agricultural land. Defendant No. 2 in its written statement has denied any concern with M/s. Pushpanjali Sales Pvt. Ltd. Defendant No. 1 has denied that he ever admitted the receipt of Rs. 4.0 lakhs from defendant No. 1 or that any such payment was made to him. The case of defendant No. 2 is that he was not involved in the said transactions.

5. It is on the aforesaid averments that the plaintiff has sued defendant No. 1 in the suit for recovery. Learned counsel for the plaintiff submits that this was a clear case of conspiracy and collusion between defendants 1 and 2 to cheat the plaintiff. It is urged that the averments in the plaint and the documents filed should be assumed to be true for purposes of considering the application under Order VII Rule 11 of the Code of Civil Procedure on the basis of the onfirmation given by defendant No. 1 dated 25.6.1989 and the receipts filed. Defendant No. 2 it is claimed, has been rightly imp leaded in the suit. It is also an averment in the plaint that the plaintiff had filed an FIR on these allegations, but the police did not register the same is so far as it contained allegations against defendant No. 2 and as such the plaintiff was forced to file the complaint only against defendant No. 1.

6. The question which comes up for consideration before this court is; whether the plaint as drafted and the averments made therein disclose a cause of action for the impleadment of defendant No. 2? Cause of action connotes of the bundle of facts, which entitles the plaintiff to claim a relief against the defendant. The legal position in this regard is airly well settled. On a meaningful reading of the plaint, if it does not disclose a cause of action against the defendant, then the court would nipsuch a litigation in the bud and prevent a futile litigation. Reference may be invited to the decision of the Apex Court in T. Arviandanam Vs. Satyapal and another .

7. On a reading of the present plaint, it would be seen that there is no allegation in the plaint showing that the plaintiff had any Privity of contract with defendant No. 2 or that any mis-representation was made by defendant No. 2 in furtherance of the alleged conspiracy or fruad. The case of defendant No. 2 simply stated is that he has no concern with M/s. Pushpanjali Sales Pvt. Ltd. and in any case even if his brother or relation were directors of the same, no Personal liability could be attached to him.It is significant here that the plaintiff in any case has reached a settlement with M/s. Pushpanjali Sales Pvt. Ltd. and received a sum of Rs.2,75,000/- in satisfaction of its claim against the money said to be advanced to them. Although defendant No. 1 has denied giving the signed confirmation dated 25.6.1989 or passing over the receipts dated 5.3.1989 and 16.3.1989 allegedly executed by defendant No. 2, from the photocopies of the receipts allegedly executed by defendant No. 2, it is seen that they simply acknowledge the receipt of money from defendant No. 1. The said documents do not indicate that it is either the money advanced by the plaintiff or that the sum was intended or received on behalf of M/s. Pushpanjali Sales Pvt. Ltd. For whatever its worth, it would only be an acknowledegment by defendant No. 2 of having received the money from defendant No. 1. It may provide a cause of action to defendant No. 1 to sue defendant No. 2, but does not provide a cause of action to the plaintiff to sue defendant No. 2. In the passing it may also be noticed that while the plaintiff's case is that the said money of Rs 4.0 lakhs was paid vide cheques dated 24.5.1989 and 8.4.1989, the receipts are dated 5.3.1989 and 16.3.1989, though the plaintiff has attempted to explain the same by saying that the receipts were pre-dated to suit accounting requirements of M/s.

Pushpanjali Sales Pvt. Ltd.

8. In view of the foregoing discussion I find that the plaint does not disclose any cause of action against defendant No. 2. Accordingly, I allow the application under Order 7 Rule 11 CPC and direct that the plaint in so far as it concerns the defendant No. 2 stands rejected.

9. Plaintiff to file the amended memo of parties within one week.

IA stands disposed of.

S. No. 3144/92

10. Learned counsel for the plaintiff submits that there is no appearance no behalf of defendant No. 1. It is noticed that for the last several hearings the application under Order 7 Rule 11 CPC was under consideration.In the interest of justice, refortify the matter on 5th November, 1999 for further proceedings. The name of the counsel for defendant No. 1 be shown in the list.