KARTAR SINGH YADAV Vs. SURESH CHAND ARORA

JUDGEMENT

(1.) This Regular First Appeal is directed against the judgment and decree dated 17th August, 2004 passed by the Additional District Judge, Delhi vide which the learned trial court answered the issue of limitation, which was treated as a preliminary issue, holding that the plaint was liable to be rejected under Order 7 Rule 11 (d) of the CPC.

(2.) The facts giving rise to the present appeal are that Sh. Kartar Singh Yadav filed a suit against the defendant claiming that the defendant was the co- owner of property No. P-17, Green Park Extn., New Delhi comprising ground floor, first floor, second floor with a vacant and open terrace thereupon. It was represented to the plaintiff that on the basis of a family settlement, the defendant was co-sharer to the extent of 25% and he had exclusive rights on the terrace and being holder of a perfect title, he could sell the said property. On this premise, the parties entered into an agreement to sell dated 3.7.2000 selling the complete terrace rights to the plaintiff for a consideration of Rs. 6,15,000/- out of which a sum of Rs. 2,80,000/- was paid in cash and the remaining amount was paid by way of adjustment which defendant acknowledged vide receipt dated 31.7.2000. The defendant executed various documents such as agreement to sell, will and affidavit. On 24.7.2000, the plaintiff purchased stamp paper of Rs. 22,400/- for execution of the sale deed but upon verification, it transpired that the family settlement dated 19.9.96 was not a registered document and could not be acted upon. Even the co-sharers had refused to act on the same. The defendant failed to seek consent of the other co-sharers for execution of the sale deed and the plaintiff agreed for cancellation of the deal subject to payment of Rs. 6,15,000/- already received by the defendant. An agreement dated 31.7.2000 was signed in this regard. The defendant failed to return the money. The plaintiff even filed a criminal complaint against the defendant for which an FIR was lodged being FIR No. 781/2000 on 29.9.2000 u/s 420/467, 468/471/506 IPC. The plaintiff even earlier filed a suit being Suit No. 230/01. After defendant was served in that suit, the plaintiff was advised that the suit was not maintainable in view of availability of more efficacious remedy including suit for specific performance. As such, the plaintiff withdrew the said suit. The defendant in collusion with the other co-sharer was attempting to sell the said property. The plaintiff learnt this in the second week of April, 2003. Although the plaintiff agreed for payment of interest @ 5% but because of the default committed by the defendant, the plaintiff filed the present for recovery of Rs. 8,73,043/- as well as for injunction. The suit was contested by the defendant and he raised various preliminary objections. The transaction was denied and it was stated that plaintiff gave some loan to the defendant and asked him to see at his residence in the evening. The plaintiff became friendly with the defendant. The two started drinking together and then various papers were got signed by the plaintiff from the defendant including the blank stamp papers. These papers were got signed under the pretext that the plaintiff wanted to get his son admitted in DPS, R.K. Puram, New Delhi and Kathuria School, Vasant Kunj, New Delhi and wanted to have an address in Delhi and asked for the help of the defendant. It is denied that the defendant ever gave representation that family settlement was registered and to show the ownership of the defendant in respect of the property in question he had produced any document.

(3.) During the pendency of the suit and in view of the objections taken by the defendant in his written statement, learned trial court vide its order dated 31.5.2004 framed the following preliminary issue:- "Whether the suit is maintainable in view of preliminary objection No. 5 of the written statement"