SOMA BANERJEE Vs. SRIDHAR BISWAL & ANOTHER

JUDGEMENT

(1.) This Regular First Appeal involves a challenge to the impugned order/judgment dated 25.08.2012 passed by the Civil Judge (Sr. Divn.), Jajapur Road in C.S. No.214 of 2011 thereby dismissing the suit U/o-7 Rule 11(a) & (d) of C.P.C.

(2.) Short background involved in the case is that the appellant as plaintiff filed Civil Suit No.214 of 2011 making the present respondents as defendants and the fact as laid by the plaintiff therein is, the defendants are lawful bona fide and absolute owner of the land mentioned in the schedule therein. The defendants entered into construction by availing loan for construction of a multi storied building complex suitable for hotel in the name of "Shruti Inn. Pvt. Ltd.". The plaintiff claimed that after development upto some extent the defendants could not be in a position to complete the construction work of the building and for pressing demand of the creditors for payment of the loan dues, under compelling situation the defendants decided to sale away the land and building. When the defendants were in search of prospective buyers, M/s. Jai Jagannath Associates at Station Road, Jamshedpur who were also already involved in hotel business, proposed for purchase of the defendants' property. Such proposal being accepted by the defendant, final consideration money was settled to at Rs.6,25,00,000/- (Rupees Six Crores Twenty Five Lakhs). Accordingly, an agreement was also entered into between the parties on 18.10.2010, consequently, the agreement was also signed by four partners. It is further averred therein that as per the terms and conditions in the agreement, the plaintiffs went on performing their part and that contract further disclosed that the share to fall on the respective parties by virtue of the conditions of the agreement. The plaintiff in paragraph no.5 stated that the defendants availed loan from the State Bank of India and as per the agreement an amount of Rs.2,07,00,000/- (Rupees Two crores seven lakhs) was pending due against the defendants in the Branch of the State Bank of India and the said amount was to be repaid by the firm of the plaintiff. While alleging that even though defendants were declared as NPA, this fact was not brought to the notice of the plaintiff and it is further stated that in the meantime, the partnership firm namely M/s.Jai Jagannath Associates at Station Road, Jamshedpur has been dissolved and the suit property in fact fell to the allotment of the plaintiff. Referring to the agreement, learned counsel for the plaintiff contended that the defendants had to execute and register the conveyance bill on 15.04.2011 after full and final payment of the consideration amount. It is alleged that the plaintiff though approached the defendants to register the sale deed on several occasion on receipt of the balance consideration money, the defendants somehow played dilatory tactics and avoided to perform their part. Finding that the defendants are trying to sale away the suit property to some outsiders behind back of the plaintiff and such action remain contrary to the agreement entered into by the parties on18.02.2010 the plaintiff finding no other option served a pleader notice on the defendants on 12.07.2011 and ultimately, finding no response pursuant to the pleader notice the plaintiff filed suit for following relief :

(3.) In response to notice, the defendant no.1 on his appearance filed an application under Order 7 Rule 11 of C.P.C. praying therein for dismissal of the suit inter alia contending therein that the suit has not been filed by proper person rather the suit is at the instance of a stranger. It is also urged therein that the plaintiff was never a party to the contract for specific performance. It was also claimed that the plaintiff was neither a partner nor a legal and bona fide interest holder in the said firm. Further, on the premises of the plaintiff not being a party to any agreement between him and defendant no.1 and nor even there involve any agreement involving defendants with the plaintiff, it was claimed that the plaintiff has no cause of action for filing the suit. The defendants also contested the suit on the premises of the plaint being barred by law of the Indian Contract Act and the Specific Relief Act. In the above background of the matter and on the premises of attracting the provision at Order 7 Rule 11 (a) & (d) of the C.P.C, the respondent no.1 the defendant no.1 claimed for rejection of the plaint. The defendant no.2 had also a similar application challenging the entertainment of the plaint being hit by the provision of Order 7 Rule 11(a) & (d) of the C.P.C.