M/S. Shining India Developers ... vs Lt. Col. P.S.Bhatnagar
2012 Latest Caselaw 6625 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: November 20, 2012

+      CS(OS) 444/2009

M/S. SHINING INDIA DEVELOPERS PRIVATE LTD.                               ..... Plaintiff

                      Through:                Mr. Sudhanshu Batra, Sr. Adv. with
                                              Mr. Anupam Srivastava, Adv.

                      versus

LT. COL. P.S.BHATNAGAR                                              ..... Defendant

                      Through:                Ms. Suparna Srivastava, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                               JUDGMENT

V.K.JAIN, J. (ORAL)

IA 18189/2011(O.7 R.11 CPC)

1. This is an application filed under Order VII Rule 11 of the Code of Civil

Procedure read with Section 151 CPC thereof for rejection of the plaint.

2. The case of the plaintiff Company is that vide Agreement to Sell dated

22nd October, 2005, the defendant Company agreed to sell the suit land to it for a

total consideration of Rs.9,60,00,000/- and received part-payment of Rs.1 crore by

way of two cheques of Rs.25 lakhs each and cash payment of Rs.50 lakhs. It is

alleged in the plaint that it had been agreed between the parties that the balance sale

consideration would be paid on or before 31st January, 2006, at the time of

execution of the sale deed and other necessary documents required for transfer of

the said land in favour of the plaintiff Company or its nominee. There is a specific

averment in para 7 of the plaint that the defendant was to grant, convey, transfer

and assign all his rights, titles and interests in the suit land along with the

ownership rights in favour of the plaintiff Company and he had assured the plaintiff

Company that he would execute and get registered the sale deed and other

necessary documents required for transfer of the said land, after obtaining

necessary permissions/approvals/No Objection Certificate from the competent

authorities, prior to payment of balance sale consideration to the defendant.

In para 8 of the plaint, there is another specific averment that payment of the

balance sale consideration by the plaintiff Company was subject to the defendant

obtaining necessary approvals/NOC required for execution and registration of the

transfer documents in favour of the plaintiff Company. In para 12 of the plaint, it

is alleged that getting no response from the defendant for obtaining

NOC/permissions/approvals for execution of the sale deed and its registration, the

plaintiff sent a letter dated 19th January, 2006 to the defendant enquiring about the

date by which NOC would be received by them and the plaintiff also showed its

readiness and willingness to execute and register the sale deed and make the

balance payment. Yet another letter dated 9th February, 2006 has been pleaded in

para 14 of the plaint whereby the defendant was requested with respect to issuance

of the NOC and execution and registration of the sale deed. It is also pleaded in

para 16 of the plaint that the sale deed in favour of the plaintiff could not be

executed and registered without requisite NOC from the competent authority since

the suit land is agricultural land governed by the provisions of Delhi Land

(Restrictions on Transfer) Act, 1972, and Delhi Land Reforms Act, 1954. The

plaintiff has accordingly sought specific performance of the Agreement to Sell

dated 22nd October, 2005 by execution of a deed of conveyance in its favour and

transfer of vacant possession of the suit land to it. The plaintiff has also sought

mandatory injunction directing the defendants to obtain all necessary approvals

including NOC and comply with the requirements of Sections 33 and 41 of The

Delhi Land Reforms Act, 1954.

3. It is stated in the application that the suit filed by the plaintiff is frivolous

and vexatious and neither the obtaining of NOC was an agreed condition under the

Agreement to Sell nor was the same required under laws for completion of the

transaction contemplated between the parties. It is further alleged that the plaintiff

has failed to disclose that the real cause for non-completion of the transaction has

been the insufficiency in financial readiness and willingness on the part of the

plaintiff to complete the transaction. It is also stated in the application that in the

area where the suit property is situated, the accepted mode of transfer is not a Sale

Deed, the same being an unauthorized colony. It is further alleged that it is the

plaintiff who had breached the contract between the parties by deliberately

imposing pre-conditions for completion of the sale, which pre-conditions are not

only de hors the agreement but also not required in law. A reference has been

made to the observations made by this Court in the order dated 15.7.2011 passed in

IA No.3118/2009. It is also stated in the application that the agreement does not

prescribe/mandate sale deed as a mode of transfer and, therefore, relief seeking

decree of execution of Deed of Conveyance is not maintainable Reliance has been

placed upon the decision of the Supreme Court in Suraj Lamp And Industries

Private Limited v. State of Haryana And Another, (2012) 1 SCC 656.

4. It is by now settled proposition of law that while considering an application

under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint,

the Court can take into consideration only the averments made in the plaint and the

documents filed by the plaintiff. Neither the written statement nor the documents

filed by the defendant can be considered while deciding such an application.

5. The cause of action is a bundle of facts, which the plaintiff is necessarily

required to plead, and if controverted also prove, in order to succeed in the suit

filed by him. In order to establish its case, the plaintiff was required to plead that (i)

there was an agreement executed between the parties for sale of the suit land; (ii) it

had been ready and willing to perform its part of Contract and there has been

breach of the agreement on the part of the defendant. In the present case, all such

facts as would constitute cause of action to seek a decree for specific performance

of an Agreement to Sell an immovable property, have been pleaded in the plaint.

The Agreement to Sell between the parties has been expressly pleaded. The

property subject matter of the Agreement has been described in the plaint as also in

the Agreement filed by the plaintiff. The sale consideration has also been pleaded

in the plaint and also is specified in the Agreement to Sell dated 22 nd October,

2005. There is no dispute with respect to identity of the seller and the purchaser.

The case of the plaintiff is that all requisite permissions including NOC under

Delhi Land (Restrictions on Transfer) Act 1972 was required to be obtained by the

defendant. The case of the defendant appears to be that the requisite

NOC/permission was not required to be obtained by him. While considering an

application under Order VII Rule 11 of the Code of Civil Procedure for rejection of

plaint, the Court cannot examine the truthfulness or otherwise of the averments

made in the plaint and the only requirement of law is to consider whether the

averments as made in the plaint, disclose an adequate right to sue or not. If the

averments made in the plaint and the documents filed by the plaintiff are taken into

consideration, it would be difficult to say that the plaint does not disclose any cause

of action to file a suit for specific performance of the Agreement to Sell dated 22nd

October, 2005.

6. The learned counsel for the defendant states that the suit is based upon an

alleged obligation which was never agreed between the parties and is otherwise not

required to be performed by the defendant in law. These are the matters,

truthfulness or otherwise of which can be examined at an appropriate stage while

deciding the suit on merits, but for the purpose of deciding an application under

Order VII Rule 11 of the Code of Civil Procedure, it is only the averments made in

the plaint and the documents filed by the plaintiff which can be taken into

consideration, the plaintiff has specifically pleaded that it was the defendant who

was to obtain all necessary permissions including NOC under Delhi Land

(Restrictions on Transfer) Act, 1972 and at this stage, it is not permissible for the

Court to go into the truthfulness or otherwise of this assertion made in the plaint.

While considering an application for grant of ad interim injunction during

pendency of the suit, the Court is required to examine the case on merits so as to

find out whether a prima facie case has been made out or not and for this purpose,

the Court can take a prima facie view on the truthfulness or otherwise of the

averments made in the pleadings of the parties, but, no such exercise can be

undertaken by the Court while considering an application for rejection of the plaint.

7. As regards the plea that since agreement between the parties did not envisage

execution of any sale deed, suit seeking execution of Conveyance Deed in favour

of the plaintiff is not maintainable, it would only be appropriate to refer to the

agreement between the parties which, to the extent relevant for this purpose, reads

as under:-

"the FIRST PARTY doth hereby agree to grant, convey, sell, transfer and assign all his rights, titles and interests in the said land (fully described above) alongwith the ownership rights in the land underneath, free from all encumbrances, TO HAVE AND TO HOLD THE SAME unto the SECOND PARTY, absolutely and forever."

It would, thus, be seen that vide this agreement, the defendant expressly

agreed to convey, sell and transfer all his rights in the suit property alongwith

ownership rights in the land, to the plaintiff which clearly implies execution of a

Conveyance Deed in favour of the plaintiff since right, title and interest in an

immovable property can be conveyed only by way of a Conveyance Deed/Sale

Deed etc. Therefore, it would be difficult to say, on the basis of the averments

made in the plaint and the documents filed by the plaintiff that no decree for

execution of the Conveyance Deed in favour of the plaintiff can be passed in the

suit.

8. The learned counsel for the defendant has relied upon the decision of the

Supreme Court in T.Arivandandam v. T.V.Satyapal, AIR 1977 SC 2421, where

the Apex Court, inter alia, observed that a meaningful and not formal reading of

the plaint needs to be carried out and if the plaint is found to be manifestly

vexatious, and meritless, in the sense of not disclosing a clear right to sue, the

Court should exercise powers under Order VII Rule 11 of the Code of Civil

Procedure. It was further observed if clever, drafting has created the illusion of a

cause of action that needs to be nipped in the bud at the very first hearing by

examining the party searchingly under Order X of the Code of Civil Procedure. In

my view, on a meaning and purposeful reading of the plaint as a whole, it cannot

be said that it does not disclose a clear right to sue as far as the relief of specific

performance of the Agreement to Sell dated 22nd October, 2005 is concerned.

Therefore, this judgment is of no help to the defendant. The learned counsel for the

defendant also relies upon S.P.Sharma v. State of M.P., AIR 1977 SC 2423,

Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, I.T.C. Limited v. Debts

Recovery Appellate Tribunal, (1998) 2 SCC 70, Banarsi Dass v. Brig. Maharaja

Sukhjit Singh And Another, (1998) 2 SCC 81, S.P.Chengalvaraya Naidu v.

Jagannath, AIR 1994 SC 853, Suraj Lamp And Industries Private Limited v.

State of Haryana And Another, (2012) 1 SCC 656 and Shipping Corporation of

India Ltd. v. Machado Brothers And Others, (2004) 11 SCC 168. I have perused

these judgments. None of these judgments lays down any such proposition of law

which would be of any help to the defendant in the facts and circumstances of the

case. In none of these judgments, the Court has said that while considering an

application under Order VII Rule 11 CPC, the Court should try to verify the

truthfulness of the averments made in the plaint and/or the documents filed by the

plaintiff.

The application under consideration is devoid of any merit and is hereby

dismissed.

NOVEMBER 20, 2012/'sn'                                        V.K. JAIN, J