Madhya Pradesh High Court
Karamat vs Anand Sagar Real Estate Pvt. Ltd. ... on 16 October, 2023
Author: Pranay Verma
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
FIRST APPEAL No. 2024 of 2022
BETWEEN:-
KARAMAT S/O AMEER PATEL, AGED ABOUT 55
YEARS, OCCUPATION: AGRICULTURE,
VILLAGE MUNDLANAYTA TEH. AND DISTT.
INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI HARISH SOLANKI- ADVOCATE )
AND
1. ANAND SAGAR REAL ESTATE PVT. LTD.
THROUGH MANAGING DIRECTOR SHRI
VARJINDER SINGH CHHABRA PEACE
POINT COLONY, BEHIND QUEENS
COLLEGE, KHANDWA ROAD, GRAM
LIMBODI, INDORE (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
COLLECTOR COLLECTOR OFFICE, MOTI
TABELA, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHOK KUMAR SETHI- SENIOR ADVOCATE WITH SHRI SUNIL GUPTA-
ADVOCATE FOR RESPONDENT NO.1
BY SHRI ANENDRA SINGH PARIHAR- PANEL LAWYER FOR RESPONDENT
NO.2/STATE )
Reserved on : 06.07.2023
Pronounced on : 16.10.2023
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Oct-23
5:18:16 PM
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
This appeal under Section 96 of the Civil Procedure Code has
been preferred by plaintiff/appellant being aggrieved by the judgment and
decree dated 22.11.2022 passed in Civil Suit No.602-A/2022 by the
Fourth Additional District Judge, District Indore whereby allowing an
application under Order 7 Rule 11 of the CPC filed by defendant
No.1/respondent No.1, his plaint has been rejected.
2. As per plaintiff, defendant No.1 is the owner of total 2.371
hectare of land at Gram Mundlanayta, Tehsil and District Indore. On
03.08.2021 its Managing Director executed an agreement to sale with
respect to the aforesaid land in favour of plaintiff at the rate of
Rs.1,21,00,000/- per acre upon payment of earnest money of Rs.1 Crore.
The remaining amount of the sale consideration was to be paid within a
period of six months and the requisite sale deed was to be executed. The
M.D. of defendant No.1 intimated plaintiff that his son, Director of
defendant No.1 has to sign on the agreement hence he should sign the
agreement and give it to him and he will get the same signed from his son
and shall return the same to plaintiff. The plaintiff believed him and gave
the agreement to him. However, the agreement has not been got signed by
the M.D. of defendant No.1 as promised and returned to him. Though he
has not done so but has received the earnest money against the agreement
to sale. The plaintiff has always been and still is ready and willing to
perform his part of the contract but defendant No.1 is not doing so.
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Oct-23
5:18:16 PM
3. Contending aforesaid plaintiff instituted an action for specific
performance of the contract entered into between him and defendant No.1
and for permanent injunction restraining defendant No.1 from alienating
the suit land or altering its nature in any manner.
4. Upon service of summons, the defendant No.1 filed an
application under Order 7 Rule 11 of the CPC for rejection of the plaint
submitting that earlier also civil suits have been instituted between the
parties which have been decided on the basis of compromise. Defendant
No.1 has never entered into any agreement to sale with plaintiff as
contended by him. The agreement produced by plaintiff is forged and
fabricated. Defendant No.1 is not the owner of the suit land and plaintiff
has produced forged documents and that no cause of action has accrued to
the plaintiff to institute the present suit. The plaintiff contested the
application by filing his reply to the same.
5. By the impugned judgment and decree the trial Court has
observed that from plaint averments it is apparent that talks were going
on between the parties in respect of the suit land. Defendant No.1 had
stated that he would get the agreement to sale signed from his son and
give it to plaintiff. Prior to that itself plaintiff had paid the earnest money
to defendant No.1 hence the oral agreement to sale between the parties
has not been concluded. Since prior to the oral agreement itself plaintiff
had paid the earnest money to defendant No.1, no promise by defendant
No.1 for sale of the suit land had been completed. Son of M.D. of
defendant No.1 has not signed on the agreement to sale. From the plaint
averments it is apparent that the oral contract between the parties has not
been concluded. In consequence allowing the application under Order 7
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Oct-23
5:18:16 PM
Rule 11 of the CPC filed by defendant No.1, the plaint has been rejected
on the ground that no cause of action has accrued to plaintiff for
institution of the suit.
6. Learned counsel for the plaintiff has submitted that a bare
perusal of the agreement to sale executed between the parties and the
plaint averments reveal that a concluded contract had come into existence
between the parties. The necessary ingredients for an agreement to sale to
be considered as having been completed are very much present. The trial
Court has disbelieved the same on conjectures and surmises without
properly appreciating the plaint averments. It could not have been said
that no cause of action had accrued to the plaintiff for institution of the
suit. The impugned judgment and decree hence deserves to be set aside.
7. Per contra, learned Senior counsel for defendant No.1 has
submitted that from a perusal of the plaint averment themselves it is
apparent that no concluded contract had come into existence between the
parties. The M.D. of defendant No.1 has not signed on the agreement to
sale and his son has also not signed upon the same as has been stated by
plaintiff. The oral agreement was not concluded nor has the written
agreement so materialised since M.D. of defendant No.1 and his son have
not signed on the agreement. The plaint averments have been correctly
appreciated by the trial Court in holding that no cause of action has
accrued to the plaintiff. The appeal hence deserves to be dismissed.
8. I have considered the submissions of learned counsel for the
parties.
9. It is well settled that at the time of consideration of an
application under Order 7 Rule 11 of the CPC, it is only the plaint
averments and the documents filed by plaintiff along with the plaint
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Oct-23
5:18:16 PM
which can be considered. The pleadings of defendant made either in the
written statement or in the application under Order 7 Rule 11 of the CPC
or the documents filed by the defendant cannot be taken into
consideration. The plaint averments have to be taken to be true at this
stage.
10. In the plaint, the plaintiff has pleaded that on 03.08.2021 M.D.
of defendant No.1 had executed an agreement to sale in his favour. The
total amount of the sale consideration was agreed to between the parties
and an amount of Rs.1 Crore was paid by him to defendant No.1 by way
of earnest money. Thereafter, M.D. of defendant No.1 stated that the
agreement needs to be signed by his son and had taken the same from
plaintiff but did not return the same to him upon getting the same signed
from his son. He has categorically pleaded that the agreement between
him and defendant No.1 as regards sale of the suit land had been
concluded as the amount of total sale consideration had been agreed and
earnest money was also paid pursuant thereto. It is in addition that the
written agreement to sale was prepared.
11. If, the written agreement to sale is excluded for the sake of
agreements then the position which emerges is that between plaintiff and
defendant No.1 an agreement had been entered into for sale of the suit
land for the agreed consideration upon payment of earnest money and it
was agreed that the requisite sale-deed shall be executed within a period
of six months upon payment of the balance sale consideration. This
would prima facie show that a concluded oral contract had come into
existence between the parties. In addition, a written agreement to sale had
also been prepared between them. If, the same was taken by M.D. of
defendant No.1 for getting it signed by his son, it would not mean that the
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Oct-23
5:18:16 PM
oral agreement which stood concluded between the parties was
superseded. That was a condition in addition to the oral contract and was
not a pre-condition for the agreement to sale to be treated as concluded.
12. When the plaint averments are read as a whole it leaves no
room for doubt that a concluded agreement to sale had been entered into
between the parties. The trial Court has erred in holding to the contrary.
The written agreement to sale was prepared and was signed by the
plaintiff and two witnesses. Defendant No.1 was represented through its
Managing Director and not through his son. As per plaintiff defendant
No.1 had taken the agreement to get the same signed by his son. Whether
a written concluded agreement to sale had not come into existence
between the parties only for the reason that the same had not been signed
upon on behalf of defendant No.1 would be a matter of evidence to be
considered by the trial Court at the appropriate stage. For the present, on
the basis of the plaint averments, it cannot be said that no concluded
contract whatsoever had come into existence between the parties.
13. The trial Court has hence erred in allowing the application
under Order 7 Rule 11 of the CPC filed by defendant No.1 and in
rejecting the plaint. The impugned judgment and decree passed by the
trial Court are hence set aside and the matter is remanded back to it to
proceed further in accordance with law. The appeal is accordingly
allowed and disposed off. No costs.
It is made clear that this Court has not expressed any opinion on
merits of the case.
(PRANAY VERMA)
JUDGE
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Oct-23
5:18:16 PM
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 16-Oct-23
5:18:16 PM
