SANDEEP GROVER Vs. SMT. PRIYANKA BATRA

JUDGEMENT

(1.) This Civil Revision Petition under Section 115 of the Code of Civil Procedure has been preferred against the order dated 17.3.2011 passed by Additional District Judge Behror (District Alwar) in Civil Suit No.2/2008 whereby the learned Court below has dismissed the application filed under Order 7 Rule 11 CPC by the defendant-petitioner.

(2.) Brief relevant facts for the disposal of this petition are that plaintiff-non-petitioner filed a suit for specific performance of agreement to sell and permanent injunction on 17.4.2008 against the defendant-petitioner with the averment that the petitioner agreed to sell the land in question, an agricultural land, to the father of non-petitioner late Shri Ashok Malik in lieu of sale consideration amount of Rs.1.45 crore and in pursuance of this agreement entire sale consideration has been paid to the petitioner and in this regard a receipt-cum-agreement to sell dated 24.11.2001 was also executed by the petitioner in which it was stated that remaining sale consideration of Rs.25 lacs would be paid on or before 24.11.2004 and the sale deed shall also be executed and registered. It was further averred in the plaint that the land was agreed to be purchased for the benefit of the non-petitioner and the sale deed was to be executed either in favour of father of the non-petitioner or any other person nominated by him. It was further stated that in the year 2005 the petitioner refused to execute and register the required sale deed. It was prayed that a decree for specific performance of agreement to sell may be passed in favour of the non-petitioner and against the petitioner. It was also prayed that a decree for permanent injunction may also be passed against the petitioner. The defendant-petitioner appeared before the Court below and filed an application under Order 7 Rule 11 CPC with the averment that the plaint filed by the non-petitioner is liable to be rejected on the grounds taken in the application as the suit is barred by law. It was averred that it is an admitted fact that father of non-petitioner late Shri Ashok Malik was a Non Resident Indian at the time he agreed to purchase the land in question (an agriculture land) from the petitioner whereas the Foreign Exchange Management Act (hereinafter to be referred as 'FEMA ) and notification dated 3.5.2000 issued by the Central Government under Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations 2000 (hereinafter to be referred as the Regulations, 2000 ) prohibits purchase of an agriculture land in India by a Non Resident Indian and therefore, the agreement to sell allegedly executed between the petitioner and late Shri Ashok Malik is invalid under Section 11 of the Indian Contract Act and such agreement cannot be enforced by a Court of law and the suit is barred by law. It was also averred that according to the plaint averments and agreement to sell itself, a date i.e. 24.11.2004 was fixed and stipulated between the parties upto which the sale deed was to be executed by the petitioner and if calculated from that date, the suit was required to be filed within three years of it whereas the same has been filed on 17.4.2008 which is clearly time barred and on that ground also the suit is liable to be dismissed. It was further submitted that according to non-petitioner herself she has filed a suit for declaration and permanent injunction in the year 2005 in a Court situated at New Delhi alleging therein that the petitioner has refused to execute the sale deed in the year 2005 and, therefore, the cause of action for filing suit for specific performance of agreement to sell also arose in the same year based on the same cause of action upon which the suit was filed in Delhi Court and, therefore, the present suit is barred by law also under the provisions of Order 2 Rule 2 CPC. A further ground was taken that according to non-petitioner herself her father late Shri Ashok Malik executed a will on 29.10.2002 in her favour and on the basis of the will she has acquired rights and title in the land in question and she has a right to institute the present suit against the petitioner whereas according to will Shri Ashok Malik appointed his brother Shri Karan Singh as executor of the will and, therefore, unless the nonpetitioner obtains a probate, the suit is not maintainable. On the basis of all these grounds as taken in the application, it was claimed by the petitioner that the suit is barred by law and the plaint is liable to be rejected. A written reply was filed to the application by the non-petitioner in which the grounds taken by the petitioner were specifically denied and it was averred that none of the grounds is such that the plaint is liable to be rejected without recording evidence of the parties. It was prayed that the application may be dismissed. Learned Court below after hearing both the parties, by passing the impugned order dismissed the application filed by the petitioner. Being dissatisfied, the defendant-petitioner is before this Court by way of this revision petition.

(3.) Assailing the impugned order, learned counsel for the petitioner has raised following grounds:-