Hirenbhai Shankarbhai ... vs D.M.D Developers Private Limited ...
2021 Latest Caselaw 18696 Guj

       C/CRA/10/2020                                            ORDER DATED: 23/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CIVIL REVISION APPLICATION NO.                          10 of 2020

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HIRENBHAI SHANKARBHAI UTTAMCHANDANI OF ITS PARTNER SHREE
         KUBERJI DEVELOPERS (A PARTNERSHIP FIRM)
                          Versus
  D.M.D DEVELOPERS PRIVATE LIMITED THROUGH DHARMESHBHAI
                    PADAMSHIBHAI PATEL
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Appearance:
MR ARVIND R YADAV(3868)                   for the Applicant(s) No.
1,2,3,4,5,6
MR.NISARG P RAVAL(7262)                   for the Applicant(s) No.
1,2,3,4,5,6
MR AMIT THAKKAR WITH MR                   HIREN R PANDYA(8760) for the
Opponent(s) No. 1
MR S N THAKKAR(901) for                   the Opponent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                    Date : 23/12/2021

                                          ORAL ORDER

1. This revision application is filed by the applicants - original defendants under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') challenging the order dated 09.08.2019 passed below application Exh.43 filed in Special Civil Suit No.99 of 2016 by 21st Additional Senior Civil Judge, Surat.

2. Heard learned advocate Mr. Arvind Yadav assisted by learned advocate Mr. Nisarg Raval for the applicants - original defendants and learned advocate Mr. Amit Thakkar assisted by learned advocate Mr.Hiren Pandya for the respondent - original plaintiff.

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3. Learned advocate for the applicants submitted that present respondent - plaintiff has filed Special Civil Suit No.99 of 2016 for specific performance of the contract and for declaration and permanent injunction. It is submitted that the said suit is filed by the company registered under the provisions of the Companies Act through its Directors against the partners of Shree Kuberji Developers - a partnership firm. Learned advocate for the applicants has referred to the averments made in the plaint and also referred the cause of action for filing of the suit and the reliefs prayed for in the said suit. Thereafter, learned advocate has referred to the documents which are placed on record including Banachitthi - agreement entered into between one Dharambhai Padamshibhai Patel and the partners of Kuberji Developers i.e. present applicants. It is submitted that as the suit filed by the plaintiff is barred by law, the applicants have filed an application under Order VII, Rule 11 of the Code for rejection of the plaint. However, the concerned Trial Court, vide impugned order dated 09.08.2019, has rejected the said application and therefore present revision application has been filed by the applicants.

4. Learned advocate Mr. Yadav appearing for the applicants assailed the impugned order mainly on the ground that 'Soda Chitthi' is executed by one Dharambhia alias Dharmeshbhai Padamshibhai Patel in

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his individual capacity wherein the respondent company is not a party much less the contracting party and hence the suit at the behest of the respondent company is incompetent in absence of any cause of action in its favour. It is further contended that 'Soda Chitthi' is merely a letter of intent, agreeing to execute an agreement/contract and thus it is not concluded contract of which specific performance can be granted in law. Learned advocate would further submit that there is no privity of contract between the respondent - plaintiff company and the present applicants and therefore the suit filed by the respondent - plaintiff for specific performance of the agreement/Soda Chitthi is barred by law and therefore the trial Court ought to have allowed the application filed by the applicants and thereby ought to have rejected the plaint.

5. Learned advocate for the applicants has referred to the provisions contained in Sections 15 and 19 of the Specific Relief Act in support of his contention. Thereafter, learned advocate for the applicants has placed reliance upon various decisions rendered by the Hon'ble Supreme Court as well as various High Courts in support of his contention. The said decisions are placed on record by way of separate compilation. Learned advocate has referred to various paragraphs of the said decisions. Learned advocate Mr. Yadav, therefore, urged that this application be allowed by quashing and setting aside the impugned order passed by the trial Court and thereby plaint

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filed by the plaintiff be rejected.

6. On the other hand, learned advocate Mr. Thakkar appearing for the present respondent - original plaintiff has opposed this application. Learned advocate Mr. Thakkar has referred to the averments made in the plaint and thereafter submitted that transaction was entered into between the plaintiff company and the present applicants - defendants and 'Soda Chitthi' was signed by one of the Directors of the plaintiff company and the said person is authorized to file civil suit. It is further submitted that the plaintiff company has paid huge amount of Rs.4.50 crores by way of Account Payee Cheques the details of which are given in para 2 and 3 of the plaint. It is further submitted that the applicants - original defendants have duly received the said amount. It is submitted that while accepting the said amount by way of cheques from the plaintiff company, no objection was raised by the original defendants that the transaction is not entered into between the plaintiff company and the defendants. Thus, now it is not open for the applicants - defendants to contend that the 'Soda Chitthi' was signed by one Dharmeshbhai Padamsi Patel only in his individual capacity. Learned advocate has also referred para 12 of the plaint i.e. the cause of action for filing the suit and thereafter referred the reliefs prayed for in the said suit. It is specifically contended by learned advocate Mr. Thakkar that the plaintiff company has also prayed

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for an alternative relief that if the Court is not inclined to give direction to the defendants to execute the sale deed on the basis of the 'Soda Chitthi' then the Court may direct the defendants to refund the amount of consideration given by the plaintiff company with interest and to grant compensation/damages. Learned advocate Mr. Thakkar, therefore, has contended that it is always open for the concerned Court, after considering the evidence led before it, to grant even alternate prayer. Learned advocate Mr. Thakkar would, therefore, submit that plaint cannot be dismissed in part. In fact the plaintiff company can file a suit for recovery of the amount of consideration and for damages. Hence, the trial Court has rightly rejected the application filed by the applicants herein under Order VII, Rule 11 of the Code.

7. Learned advocate Mr. Thakkar has placed reliance upon various decisions rendered by the Hon'ble Supreme Court as well as this Court. The said decisions are placed on record by way of a separate compilation. Learned advocate Mr. Thakkar, therefore, urged that this application be dismissed.

8. Having heard the learned advocates appearing for the parties and having gone through the material placed on record as well as the decisions which are placed on record by way of separate compilation, it transpires that the present respondent - plaintiff company has filed a Special Civil Suit against the

C/CRA/10/2020 ORDER DATED: 23/12/2021

present applicants - original defendants for specific performance of the agreement as well as for declaration and permanent injunction. The suit is filed by the plaintiff company through its Director Dharmeshbhai Padamshibhai Patel who is authorized to file the suit. If the averments made in the plaint are carefully seen, it is revealed that plaintiff has specifically averred that 'Soda Chitthi' dated 08.11.2012 was executed between the parties for the subject land for which initially Rs.1 crore was paid by the plaintiff to the defendants through cheque. Thereafter, during the period between 08.11.2012 to 05.12.2012, the plaintiff company has paid Rs.4.5 crores by Account Payee Cheques to the defendants. It is pertinent to note at this stage that during the course of hearing, learned advocate appearing for the applicants has specifically admitted that the aforesaid amount has been received by the present applicants - original defendants from the plaintiff company. This Court has also perused the averments made in para 12 of the plaint i.e. with regard to the cause of action for filing of the suit and if the reliefs prayed for in the suit is carefully seen, it is revealed that the plaintiff has prayed for specific performance of the Agreement (Soda Chitthi) dated 08.11.2012. However, it is further clear that alternatively the plaintiff company has prayed that if the Court is of the view that the aforesaid relief is not required to be granted in favour of the plaintiff, the defendants be directed to refund the amount of consideration given by the plaintiff and to

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pay Rs.50 crores by way of compensation/damages with interest to the plaintiff company. Thus, from the aforesaid alternate prayer made by the plaintiff in the suit, it is revealed that the plaintiff has asked for the refund of the amount and compensation/damages from the defendants. At this stage, once again, it is to be noted that the plaintiff has specifically stated in the plaint that the plaintiff company has paid the amount of consideration initially Rs.1 crore and thereafter Rs.4.5 crores by way of Account Payee Cheques to the defendants and the said amount of consideration is duly received by the defendants and the said aspect is not denied.

9. Thus, in the facts of the present case, this Court is of the view that the suit filed by the plaintiff is not barred by any law as contended by learned advocate for the applicants herein.

10. Learned advocate appearing for the applicants has placed reliance upon the decisions rendered by the Hon'ble Supreme Court as well as various High Courts which are on the point as to whether a stranger, who is not a party to the agreement/contract is entitled to enforce the agreement/contract and/or seeks specific performance of the agreement/contract. However, as observed hereinabove, when the plaintiff company has prayed for an alternate relief, the plaint cannot be rejected in part and if the concerned Civil Court is not inclined to grant the main relief, it is always

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open for the concerned Civil Court to grant alternate relief prayed for by the plaintiff in the facts and circumstances of a particular case. Thus, the decisions upon which the reliance is placed by the learned advocate for the applicant would not render any assistance to him.

11. Learned advocate for the applicants has also placed reliance upon three decisions rendered by different High Courts on the aspect of concluded contract. However, as observed hereinabove, the aforesaid decisions would not be applicable in the facts of the present case.

12. In the case of Sejal Glass Ltd. vs Navilan Merchants Pvt. Ltd., reported in (2018) 11 SCC 780, the Hon'ble Supreme Court has held in para 4 and 8 as under:

"4. It is settled law that the plaint as a whole alone can be rejected under Order VII Rule 11. In Maqsud Ahmad v. Mathra Datt & Co., A.I.R. 1936 Lahore 1021 at 1022, the High Court held that a note recorded by the trial Court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms:-

"There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial Court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code."

       C/CRA/10/2020                                                ORDER DATED: 23/12/2021



      xxx      xxx xxx

      8.      We are afraid that this is a

misreading of the Madras High Court judgment.

It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial."

13. Thus, from the aforesaid observations made by the Hon'ble Supreme Court, it is clear that the plaint as a whole can be rejected under Order VII Rule 11 of the Code and it cannot be rejected in part. There is no such provision in the Code to reject a plaint in part.

14. This Court has also gone through the reasoning recorded by the concerned Civil Court while dismissing the application filed by the present applicants and this Court is of the view that the concerned Civil Court has not committed any error while rejecting the application filed by the applicants - defendants. Hence, no interference is required in the impugned order.

15. Present revision application is, therefore,

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dismissed.

(VIPUL M. PANCHOLI, J)

After the judgment is pronounced, learned advocate for the applicants has requested that the interim relief, granted earlier, be extended for a further period of four weeks. However in view of the discussion made in the present judgment, the said request is rejected.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI