2012 (12) TMI 1201 - HC - Benami Property

Summary

Issues Involved:
1. Condonation of delay in filing and re-filing the appeal.
2. Amendment of the prayer clause.
3. Rejection of the plaint u/s Order VII Rule 11 CPC.
4. Vacation of the interim order u/s Order XXXIX Rule 4 CPC.
5. Applicability of the Benami Transactions (Prohibition) Act, 1988.

Summary:

1. Condonation of Delay:

The court condoned the delays in filing (6 days) and re-filing (23 days) the appeal, subject to payment of Rs. 7,500/- as costs to the respondent. The applications for condonation were allowed.

2. Amendment of Prayer Clause:

The appellants sought to amend the prayer clause to incorporate specific orders passed on different applications. The application was not opposed and was allowed.

3. Rejection of the Plaint u/s Order VII Rule 11 CPC:

The appellants filed an application u/s Order VII Rule 11 CPC for rejection of the plaint, arguing that the respondent's suit was barred by the Benami Transactions (Prohibition) Act, 1988. The learned Single Judge dismissed this application, stating that the issues raised were matters for trial and could not be decided at the preliminary stage. The court emphasized that for rejection of a plaint u/s Order VII Rule 11 CPC, only the plaint and the documents filed with it could be considered, not the defense set up by the appellants.

4. Vacation of Interim Order u/s Order XXXIX Rule 4 CPC:

The appellants also sought vacation of the ex-parte interim injunction order dated 12.08.2011 u/s Order XXXIX Rule 4 CPC. The learned Single Judge dismissed this application, maintaining the interim injunction. The appellate court found no reason to interfere with this decision.

5. Applicability of the Benami Transactions (Prohibition) Act, 1988:

The appellants contended that the suit was barred by the Benami Act. The learned Single Judge rejected this argument, noting that the respondent's case fell within the exceptions provided in Section 4(3)(b) of the Benami Act, which allows for properties held in a fiduciary capacity. The court cited relevant case law to support this interpretation, including the Supreme Court's decision in Canbank Financial Services Ltd. Vs. Custodian and Others (2004) 8 SCC 355, which emphasized that the Benami Act must be strictly construed.

Conclusion:

The appellate court upheld the learned Single Judge's decisions on all counts, finding no error or infirmity in the impugned orders. The appeal was dismissed with costs quantified at Rs. 15,000/- to be paid to the respondent within four weeks.