LAWS(BOM)-2022-5-2

SICILY VARGHESE KADAMTHOTTU Vs. SHRI RAMANLAL JAYSHANKAR TRIVEDI

Decided On May 02, 2022
Sicily Varghese Kadamthottu Appellant
V/S
Shri Ramanlal Jayshankar Trivedi Respondents

JUDGEMENT

(1.) This Appeal challenges the order dtd. 22/12/2005 rejecting the plaint, i.e. 'Deemed Decree', purportedly passed in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 ('Code' for short).

(2.) At the outset, it may be stated that the learned trial court, fell in error, in exercise of the jurisdiction, by rejecting the plaint under Order 7 Rule 11(d) of the Code, after framing the issues. Law, is to reject the plaint, for the suit being barred by any law under Order 7 Rule 11(d) of the Code, the Court needs to be guided by averments in the plaint and not the defence taken. Herein, plaint was rejected after framing the issues. On this ground alone, appeal deserves to be allowed by quashing the 'Deemed Decree' passed in Suit No.3049 of 1995. However, having regard to the facts of the case, I deem it appropriate to deal with certain issues arose for consideration in this Appeal.

(3.) Briefly stated facts of the case are as under; Defendants are promoters within the meaning of Sec. 2(c) of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ('MOFA' for short). M/s. Sushma Builders, proprietary concern of defendant no.2, agreed to sell Flat No.25 admeasuring 43.25 sq.mtrs built-up area in Building No.2, Radha-krishna Nagar, Andheri (East), Bombay ('Suit Flat' for short) to the appellant on 29/6/1988. Defendant No.2 reduced its offer to sell the Suit Flat, in writing and it was accepted by the appellant/plaintiff. Offer in writing reads as under;