Indu Chawla & Anr vs Bharat Chawala & Ors
2014 Latest Caselaw 286 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Order reserved on:  08 th January, 2014
                       Order pronounced on: 16 th January, 2014

+      I.A. 6010/2013 in CS(OS) 1390/2011

INDU CHAWLA & A NR                                    ..... Plaintiffs

                                     Through:   Mr. Mohinder Madan,
                                                Advocate
                               versus

BHA RAT CHA WALA & O RS                         ..... Defendants

                                     Through:   Mr. Pradeep Kumar,
                                                Advocate

       CORAM:
       HON'BLE MR. JUSTICE SANJEEV SACHDEVA

SANJEEV SACHDEVA, J.

IA No.6010/2013 (under Order 7 Rule 11 CPC)

1. This is an application on behalf of the defendants

under Order 7 Rule 11 CPC seeking rejection of the

plaint for want of cause of action.

2. The Plaintiffs have filed the present suit for recovery of

a sum of Rs.35,60,000/-, i.e., principal amount of

Rs.32 lakhs along with pre-suit interest of

Rs.3,60,000/- besides pendent lite and future interest. =======================================================================

3. The defendant by the present application has

contended that the Plaintiffs have miserably failed to

file any written condition for refund of double amount

of the amount paid by the Plaintiffs to the predecessor

of the defendants. The defendant has submitted that

there is no document to prove the claim of the

Plaintiffs on record and the documents, i.e., bank

certificates are irrelevant and inconsistent documents

and the same are only for a sum of Rs.12,75,000/ - and

if the Plaintiffs were to succeed then the Plaintiffs can

only prove a sum of Rs.12,75,000/- in which case the

suit would be below the pecuniary jurisdiction of this

Court. He has contended that the plaint does not

disclose any cause of action and has sought rejection

of the plaint under Order 7 Rule 11 CPC.

4. Order 7 rule 11 of the Code of Civil Procedure 190 8,

lays down as under:

11. Rejection of plaint.-- The plaint shall be rejected in the following cases:--

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(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the Plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the Plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the Plaintiff fails to comply with the provisions of Rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless

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the Court, for reasons to be recorded, is satisfied that the Plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the Plaintiff.

5. The relevant clause of order 7 rule 11 relied upon is

clause (a). Plaint under Order 7 rule 11(a) is to be

rejected where it does not disclose any cause of

action.

6. The supreme court in B HAU R AM V. J ANAK S INGH ,

(2012) 8 SCC 701 has held as under :-

"15. The law has been settled by this Court in various decisions that while considering an application under Order 7 Rule 11 CPC, the court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be irrelevant. [vide C. Natrajan v. Ashim Bai [(2007) 14 SCC 183] , Ram Prakash Gupta v. Rajiv Kumar Gupta [(2007) 10 SCC 59] , Hardesh Ores (P) Ltd. v.

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Hede and Co. [(2007) 5 SCC 614] , Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100] , Sopan Sukhdeo Sable v. Asstt. Charity Commr. [(2004) 3 SCC 137] and Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] ]. The above view has been once again reiterated in the recent decision of this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust *(2012) 8 SCC 706+ ."

7. The law in respect of Order 7 Rule 11 CPC is settled.

It is only where on examination of the plaint the court

comes to a conclusion that the plaint does not disclose

any cause of action, the same is liable to be rejected.

While examining the case under Order 7 rule 11, if the

court comes to a conclusion that the plaint discloses a

cause of action, the plaint cannot be rejected. The

defence raised by the defendant in his Written

Statement is irrelevant and is not to be considered.

The court at that stage is neither called upon to

examine whether the Plaintiffs would be able to

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eventually prove their case or not nor examine as to

how much of the case the Plaintiffs would be able to

prove.

8. In the present case the Plaintiffs in the plaint has

contended that Sh. Raj Kumar Chawla was the

proprietor of Defendants No. 4 and 5 concerns and is

the predecessor of defendants No.1 to 3. Defendant

No.1 being the son, defendant No.2 being the wife and

defendant No.3 being the daughter respectively of Sh.

Raj Kumar Chawla. It is averred in the plaint that the

said defendants have inherited all the

assets/properties and liabilities including the business,

after the death of Sh. Raj Kumar Chawla and the said

businesses are now being run by the defendants 1 to

3.

9. The Plaintiffs have averred in the plaint that Sh. Raj

Kumar Chawla was dealing in properties and for the

purpose of investment, the Plaintiffs had given

substantial amount of money to Sh. Raj Kumar Chawla =======================================================================

towards consideration for selling and transferring the

property in Rohini which was stated to be in the name

of the daughter of Sh.Raj Kumar Chawla. It is averred

in the plaint that a sum of Rs.17 la khs had been paid

by the Plaintiffs to Sh. Raj Kumar Chawla . The

Plaintiffs have given the details of the cheques through

which the payments were made. It is averred in the

plaint that as Sh.Raj Kumar Chawla , did not execute

the requisite transfer documents in favour of the

Plaintiffs he agreed to refund the amount received

from the Plaintiffs together with interest and damages

and thus issued post date d cheques amounting to

Rs.32 lakhs being double the amount paid by the

Plaintiffs.

10. The Plaintiffs have given the details of the cheque ,

their particulars, dates and amounts totalling to Rs.32

lakhs in the plaint. It is averred in the plaint that on

presentation of some of the cheques they were

returned unpaid and legal notice under Section 138 of

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the Negotiable Instruments Act was issued and from

the report of the postal authorities on the said notice,

the Plaintiffs came to know that Sh.Raj Kumar Chawla

had expired. The Plaintiffs have averred that

defendants No.1 to 3 have succeeded to the assets

and properties left behind by Sh.Raj Kumar Chawla

and as such are liable to pay the said amount. It is for

recovery of the amount covered by the cheques for

Rs.32 lakhs that the Plaintiffs have filed the present

suit.

11. The examination of the plaint clearly shows that the

cause of action is duly disclosed in the plaint. The

defence raised by the defendant to the suit and the

plea that the Plaintiffs would not be able to

substantiate the claim at the trial of the suit are not

relevant at this stage for the purpose of disposal of the

application under Order 7 rule 11 .

12. The issues in the suit have already been framed on

22.11.2011 and the parties are already at trial and =======================================================================

evidence of the Plaintiffs is under way.

13. The application is without any merit and has been filed

only to delay the trial and to protract the litigation. The

application is accordingly, dismissed with costs of

Rs.10,000/-.

CS(OS) 1390/2011

The suit is listed for Plaintiffs' evidence before the

Joint Registrar on 19.5.2014 .

List before the Joint Registrar on 19 th May, 2014, the

date already fixed.

SANJEEV SACHDEVA, J

JANUARY 16, 2014/sv

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