MICHEAL GABRIEL Vs. MICHAEL GABRIEL

JUDGEMENT

(1.) The above Interim Application has been filed by the applicant (original defendant No.1) under the provisions of Order VII Rule 11 read with section 151 of the Code of Civil Procedure, 1908 (for short "CPC") seeking rejection of the plaint. The rejection of plaint is sought principally on two grounds:- (i) that the plaintiff is seeking specific performance of the Development Agreement and the General Power of Attorney dated 15th March, 2005 which have been validly and legally cancelled / revoked by the applicant/defendant No.1 vide his notice dated 23rd May, 2005. Further the applicant/defendant No.1 has also filed a suit in this Court bearing Suit No. 1362 of 2008 seeking a declaration that the said Development Agreement, the General Power of Attorney and the alleged fabricated receipt of Rs. 17,00,000/- are illegal, null and void and the same have already been cancelled/revoked by the applicant/defendant No.1. Since the revocation/ cancellation / termination of the Development Agreement and the General Power of Attorney dated 15th March, 2005 have not been challenged in the present suit, the same is not maintainable in the eyes of law. In other words, it was the argument of the applicant/defendant No.1 that present suit is not maintainable in view of the fact that the termination notice dated 23rd May, 2005 is not challenged by the plaintiff. In support of this proposition reliance is placed on a decision of the Supreme Court in the case of I.S. Sikandar (dead) by LRs. Vs. K. Subramani and Ors. [(2013) 15 SCC 27]; and (ii) that the plaintiff being a company incorporated under the provisions of the Companies Act, could not file the present suit without any person being specifically authorized to institute the same. Without such authority, the suit is not maintainable.

(2.) On the aforesaid two grounds, it was submitted that the plaint be rejected under the provisions of Order VII Rule 11 of the CPC.

(3.) I have heard the learned advocate appearing on behalf of the applicant/defendant No.1 as well as the learned advocate appearing on behalf of the plaintiff. As far as ground (i) is concerned, namely, that there is no challenge to the termination notice dated 23rd May, 2005 and hence the plaint ought to be rejected, I find the same to be without any merit. I have gone through the plaint carefully. When it is read as a whole and more particularly paragraphs 20 to 26 therein, it is quite clear that the termination notice was never accepted by the plaintiff. In fact, the pleadings clearly show, and especially when read as a whole, that the termination notice dated 23rd May, 2005 was never accepted as a valid termination. Merely because there is no formal prayer seeking a declaration that the termination notice is bad-in-law, would not entitle the applicant/ defendant No.1 to seek rejection of the plaint, either under Order VII Rule 11 (a) or (d) of the CPC. Another important factor to note in this regard is that the applicant/defendant No.1 himself has filed a suit in this Court being Suit No. 1362 of 2008 wherein the applicant has inter alias prayed for a declaration that the Development Agreement and the General Power of Attorney dated 15th March, 2005 are illegal, null and void and the same have already been cancelled/ revoked by the applicant. There is already an order passed by this Court on 25th September, 2018 in Notice of Motion No. 1154 of 2014 that the present suit is to be tried along with the suit filed by the applicant/defendant No.1, namely, Suit No. 1362 of 2008. This being the factual position, I do not think that merely because no formal prayer seeking a declaration that the termination notice dated 23rd May, 2005 is bad in law, the plaint can be rejected as a whole. In this regard, one must examine the prayers in the plaint which read as under:-