Delhi High Court
Vivek Mehta vs Vijay Sah & Ors on 29 October, 2014
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on 29th October, 2014
+ RFA 294/2014
VIVEK MEHTA ..... Appellant
Through : Mr. Darpan Wadhwa and
Mr. Nakul Sachdeva, Advs.
versus
VIJAY SAH & ORS ..... Respondents
Through :Mr. Arun Kr. Gupta and Mr. Achal
Gupta, Advs. for respondent nos. 2
and 3
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K.PATHAK, J.(ORAL)
1. By the order impugned in this appeal trial court has allowed the
application under Order 7 Rule 11 of the Code of Civil Procedure, 1908
(CPC) of respondent nos. 2 and 3 and has rejected the plaint under Order 7
Rule 11 (a). Meaning thereby, trial court has rejected the plaint on the
ground that it does not disclose any cause of action.
2. It is trite law that for the purpose of disposal of an application under
Order 7 Rule 11 CPC the Court has to only consider the averments made in
the plaint and the documents annexed therewith. Defence of the defendant,
FAO 294/2014 Page 1 of 5
as contained in the written statement or in the application under Order 7
Rule 11 CPC, has not to be looked into. It may further be noted that
averments made in the plaint have to be taken on its face value for the
purpose of disposal of application under Order 7 Rule 11 CPC.
3. I have perused the plaint and do not find it to be without any cause of
action. Appellant has categorically stated in the plaint that he had taken loan
from respondent no. 1 on different occasions during the period 2007 to
2011, since he had sustained losses in the business. It has been further
stated that certain blank cheques were given by the appellant to respondent
no. 1 towards security. He made part payments but could not clear the entire
loan. Respondent no. 1 with the help of local mafia threatened the appellant
with dire consequences including threat to his life and to his family
members and extended pressure to execute the sale deed of property in his
favour or to face dire consequences. Respondent no. 1 suggested the
appellant to take loan from the bank by depositing the title deeds to which
suggestion he disagreed. Respondent no. 1 introduced one Shri Ram Kishan
Jha to him, who suggested that the appellant should execute a sale deed in
respect of small portion of 100 sq. feet in favour of respondent no. 1 to
enable the respondent no. 1 to obtain bank loan, installments whereof be
FAO 294/2014 Page 2 of 5
paid by the appellant. Accordingly, in good faith and trust appellant
executed a registered sale deed in respect of one shop bearing no. 66-D,
Kamla Nagar, Delhi on ground floor without roof rights. However,
physical possession of the said shop was not given to respondent no.1 and
was retained by the appellant. Respondent no. 1 made effort to raise loan
from the bank but could not succeed. Therefore, appellant asked the
respondent no. 1 to return the sale deed so the same is cancelled.
Respondent refused to give the sale deed. Appellant disposed of his assets
in Village Mukandpur, Delhi and returned the entire loan amount to
respondent no. 1 along with interest but still sale deed and blank cheques
were not returned. Appellant has categorically averred in para 10 of the
plaint that certain conversations, in this regard, were recorded by him on his
mobile phone on 6th April, 2012. Portion of such conversations has even
been quoted in para 10 of the plaint. Appellant has further alleged that
respondent no. 1, with the help of local goons, attempted to take physical
possession of the suit premises. With these allegations, appellant has prayed
that sale deed be declared as null and void and be cancelled. He has further
prayed that Sub-Registrar be directed to cancel the sale deed. Decree of
permanent injunction has also been prayed against the respondents from
FAO 294/2014 Page 3 of 5
selling, transferring, alienating or creating third party interest in the said
shop.
4. Initially suit was filed against the respondent no. 1. In the written
statement, respondent no. 1 stated that he had sold the suit property to
respondent nos. 2 and 3. Accordingly, respondent nos. 2 and 3 were
impleaded as defendant nos.2 and 3 in the suit.
5. Specific averments have been made in the plaint that sale deed was
executed under threat, coercion and duress. Thus, it cannot be said that
plaint does not disclose any cause of action. Defence taken by respondent
nos. 2 and 3 can be considered only during the trial. Accordingly, I am of
the view that trial court has erred in holding that plaint does not disclose any
cause of action.
6. For the foregoing reasons, impugned order is set aside and matter is
remanded back to trial court for proceeding further in the matter in
accordance with law. It may further be noted here that respondent nos. 2
and 3 have also filed a suit against the appellant for possession, which is
pending before the trial court and is listed for 15th December, 2014. Parties
shall appear before the trial court on 15th December, 2014.
FAO 294/2014 Page 4 of 5
7. Appeal is disposed of in the above terms.
A.K. PATHAK, J.
OCTOBER 29, 2014
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