TEXEM ENGINEERING Vs. TEXCOMASH EXPORT

JUDGEMENT

(1.) This Appeal assails the Order dated 13.8.2009 whereby the learned Single Judge had allowed the Application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short) filed by the Defendant/Respondent and consequently had rejected the Plaint. It is apparent to us that the learned Single Judge was unshakably influenced by a document purporting to be a "Settlement" between the parties which had been relied upon by the Plaintiff/Appellant and denied by the Defendant. The view of the learned Single Judge was that this document constituted an illegal contract inasmuch as the Plaintiff and his sister had agreed to give evidence favourable to the Defendant so that proceedings against the latter under the erstwhile Foreign Exchange Regulation Act (FERA), 1973 could be brought to an end. The learned Single Judge has pressed Sections 23 and 28 of the Indian Contract Act, 1872 to arrive at the conclusion that such a Settlement or contract cannot form the basis of a legitimate claim by the plaintiff against the Defendant . Support has been taken for this conclusion from Sudhindra Kumar Rai Chaudhuri -vs- Ganesh Chandra Ganguli, 1938 AIR(Cal) 840 and Sita Ram -vs- Radha Bai, 1968 AIR(SC) 534.

(2.) There can be no gainsaying that an application under Order VII Rule 11 of the CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and documents filed along with it. If authorities are required for this proposition, we need not travel beyond the latest exposition of the law contained in Liverpool & London S.P.& I Association Ltd. -vs- M.V. Sea Success, 2004 9 SCC 512. More recently, in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express, 2006 3 SCC 100 it has yet again been clarified that the Court cannot reject a plaint under Order VII Rule 11 of the CPC on the basis of the allegations made in the Written Statement. In other words, the defence to the Suit is not relevant for the purposes of Order VII Rule 11 of the CPC. The summation of the law is available in the following paragraph thereof:

(3.) To similar effect is the pronouncement in Hardesh Ores Pvt. Ltd. -vs- M/s. Hede and Company, 2007 5 SCC 614 where the suit had been rejected in response to the plea of the Defendant that the Suit was barred by limitation. The Hon'ble Supreme Court reversed the concurrent findings of the Trial Court as well as the High Court by observing that the language of Order VII Rule 11 of the CPC is quite clear and unambiguous; the plaint can be rejected on the ground of limitation only where a reading of the plaint unambiguously shows this to be so. The decision can be discerned from the following paragraph:-