M/S Rajasthan Art Emporium Ltd vs M/S Shiva Enterprises
2022 Latest Caselaw 14498 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Misc. Appeal No. 1947/2022

1. M/s Rajasthan Art Emporium Ltd., Heritage House Umaid Bhawan Palace Road, Raika Bagh, Jodhpur (Raj.)

2. R.K. Singhal S/o Late Shri Hari Kishan Singhal, Aged About 72 Years, Director, M/s Rajasthan Art Emporium Ltd. Heritage House Umaid Bhawan Palace Road, Raika Bagh, Jodhpur (Raj.)

3. Smt. Mithlesh Singhal W/o Shri R.K. Singhal, Aged About 69 Years, Director, M/s Rajasthan Art Emporium Ltd. Heritage House Umaid Bhawan Palace Road, Raika Bagh, Jodhpur (Raj.)

4. Mudit Singhal S/o Shri R.K. Singhal, Aged About 45 Years, Director, M/s Rajasthan Art Emporium Ltd. Heritage House Umaid Bhawan Palace Road, Raika Bagh, Jodhpur (Raj.)

5. Yogic Singhal S/o Shri R.K. Singhal, Aged About 42 Years, Director, M/s Rajasthan Art Emporium Ltd. Heritage House Umaid Bhawan Palace Road, Raika Bagh, Jodhpur (Raj.)

----Appellants Versus

1. M/s Shiva Enterprises, Through Proprietor Shiv Narayan Bishnoi S/o G.R. Bishnoi R/o House No. 40, Central School Scheme, Jodhpur (Raj.)

2. Regional Manager, Rajasthan State Industrial Development And Investment Corporation, RIICO Limited, Boranada, Corporation, Boranada, Jodhpur (Raj.)

----Respondents

For Appellant(s) : Mr. Dudh Nath Yadav For Respondent(s) : ---

HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL HON'BLE MS. JUSTICE REKHA BORANA Judgment

09/12/2022

In a civil suit NCV No.85/2020 M/s. Shiva Enterprises

through its proprietor Shiv Narayan Bishonoi vs. M/s. Rajasthan

(2 of 6) [CMA-1947/2022]

Art Emporium Limited & Ors., an application under Order 7 Rule

11 CPC was moved by the defendant-appellants and the same has

been rejected by the order impugned dated 24.08.2022.

The aforesaid suit was filed by the plaintiff-respondent for

the recovery of Rs.5,45,40,000/- and for a decree of injunction.

The said suit was filed in the year 2012 and the defendant-

appellants had put in appearance, filed their written statement

and allowed the plaintiff-respondent to lead their evidence. The

evidence of the plaintiff-respondent was closed vide order dated

23.10.2021, but the witnesses of the plaintiff-respondent have

been recalled on the application of the defendant-appellants for

cross-examination vide order dated 03.03.2022. Simultaneously,

the defendant-appellants moved the application under Order 7

Rule 11 CPC in 2022 for rejecting the plaint.

The above facts clearly demonstrates that the suit is an old

one wherein parties have exchanged pleadings and on the basis of

the pleadings, issues have also been framed including as to

whether the suit is barred by limitation.

The application under Order 7 Rule 11 CPC was moved

alleging that the suit is patently barred by limitation and that the

agreements to sell (Exhibit-1, 2 & 3) are without consideration

and as such on that basis the plaintiff-respondent is not entitled to

any relief. Further that the suit is also barred by Sections 51-54

of the Indian Contract Act, 1872 as the plaintiff-respondents have

not volunteered or shown willingness to complete their reciprocal

promise under the agreements.

The commercial court below by the impugned order has

rejected the application holding that the issue raised by the

defendant-appellants for rejecting the plaint vis-a-vis the

(3 of 6) [CMA-1947/2022]

limitation are mixed questions of facts and law and as such is

required to be decided on the basis of the evidence of the parties

and the plaint cannot be rejected at the threshold. The issues

raised with regard to the validity of the agreements and whether

the plaintiff-respondents have fulfilled the reciprocal promise are

all matters which have to be decided on the basis of the evidence.

It has also been recorded that the present application has been

moved in order to delay the disposal of the suit and in the facts

and circumstances when the evidence is being recorded, it is not

appropriate to reject the plaint.

The law is settled that an application under Order 7 Rule 11

CPC has to be decided on the basis of the averments made in the

plaint or the documents which may have been filed along with the

plaint as the basis of the suit. No other material, not even the

written statement has to be considered in deciding such an

application.

We have gone through the averments made in the plaint and

find that the suit is primarily for the recovery of a sum of

Rs.5,45,40,000/-. It is alleged that the plaintiff-respondent

invested a huge amount in the company of the defendant-

appellants and to secure the said investment, 15 agreements to

sell were executed by the defendant-appellants; out of the

aforesaid agreements, three agreements have expired with the

passage of time on 31.03.2010 and the rest of them still survive

and are alive. Under those agreements, out of which only three

are relevant, the plaintiff-respondent is entitled for refund of

Rs.4,50,000/- with interest. Under the agreements, the plaintiff-

respondent was entitled to receive Rs.1,50,00,000/- on

31.03.2010, 31.03.2011 and 31.03.2012 which were never paid.

(4 of 6) [CMA-1947/2022]

In view of the aforesaid averments made in the plaint, the

suit for recovery of the above amount is apparently not barred by

any law. In the event the plaintiff-respondent has failed to

perform his reciprocal promise under the agreements, his suit will

fail but that will depend upon the evidence adduced by the parties.

No provision of law or any statute has been shown to us which

bars the institution of such a suit for the recovery of any amount

under the agreement, except for the point of limitation. In

connection with the suit being barred by limitation on the

pleadings of the parties, an issue has already been framed and the

court below has recorded a finding that the above question is a

mixed question of facts and law which will be decided on the basis

of the evidence of the parties. In such a situation, it is not a case

where on the plain reading of the plaint one can say with certainty

that the plaint is liable to be rejected at the threshold.

Learned counsel for the appellants has drawn our attention

to a decision of the Supreme Court in Dahiben vs. Arvindbhai

Kalyanji Bhanusali (Gajra)(D) through LRs & Ors. [2021(1)

Civil Court Cases 210 (S.C.)]. In the said case, it has been

observed that the documents filed along with the plaint are

required to be taken into consideration while deciding an

application under Order 7 Rule 11 CPC provided that the said

document is referred in the plaint and it forms the basis of the

plaint in which case, it becomes a part of the plaint.

There is no dispute on the above proposition of law laid down

by the Supreme Court. Even considering the plaint averments and

the agreement forming part of the plaint, we do not find that the

suit is barred by any statute. Thus, it is not a case for rejection of

the plaint under Order 7 Rule 11 CPC.

(5 of 6) [CMA-1947/2022]

The aforesaid decision also shows that if the plaint reflects

that the institution of a suit is an after-thought and is barred by

limitation the plaint ought to be rejected. But the said principle

cannot be applied where an issue regarding limitation has already

been framed and the parties have been permitted to adduce

evidence for the reason that the issue of limitation has been held

to be a mixed question of law and facts. In cases where the issue

of limitation involves consideration of evidence on factual aspects,

it is a settled law that a plaint cannot be rejected under Rule 7

Rule 11 CPC.

Learned counsel has also relied upon the decision in K.Akbar

Ali vs. K.Umar Khan & Ors. [2021(2) Civil Court Cases 554

(S.C.)]. It lays down that in deciding application under Order 7

Rule 11 CPC there should be a meaningful reading of a plaint as a

whole and that in deciding an application under Order 7 Rule 11

CPC, the court is not required to look into the strength and

weakness of the case of the plaintiff or the defence set up by the

defendants.

The aforesaid observation of the Supreme Court goes against

the defendant-appellants inasmuch as all through what has been

tried to be conversed before us is that the agreements are void

and that the plaintiff-respondent is not entitled to any relief in

view of Sections 51-54 of the Indian Contract Act read with

Section 16(C) of the Specific Relief Act, 1963 as he has failed to

perform the reciprocal promises. The above aspects certainly

touches the merits of the suit and are not the ground on which a

plaint can be rejected under Order 7 Rule 11 CPC, rather have to

be decided after full trial.

(6 of 6) [CMA-1947/2022]

In the aforesaid facts and circumstances, we find no merit in

the appeal and the same is dismissed.

                                   (REKHA BORANA),J                                     (PANKAJ MITHAL),CJ


                                    1-MohitTak/-









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