Bhasin Tobaccos Ltd. & Ors. vs Gambro Nexim (India) Medical Ltd. ...
2010 Latest Caselaw 236 Del

*      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