9911796707
TMI Blog2018 (8) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the plaint under Order VII Rule 11 CPC by applying provisions of Sections 4 read with repealed Section 3(2) of the Benami Transactions (Prohibition) Act, 1988. 2. The subject suit was filed by the appellant/plaintiff/husband pleading that the two properties with respect to which reliefs of declaration and injunction were claimed in the suit, namely B-1/58, New Moti Nagar, New Delhi-15 and bearing no. B-206, C-DOT, CGHS Apartments, Sector-56, Gurgaon, were purchased by the appellant/plaintiff/husband from his own sources as stated in the plaint including paras 9 and 11 of the plaint. Paras 9 and 11 of the plaint read as under:- "9. That the earnest money for the purchase of the property was bearing no. B-1/58, New Moti Nagar, Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the Plaintiff purchased another property bearing no. B-206, C-DOT, CGHS Apartments, Sector-56 Gurgaon for the amount of Rs. 47,00,000/- (Rs Fourty Seven Lacs only). That the above said property has been planned to be purchased by the parties in the joint name of the Plaintiff as well as Defendant from the joint owners Smt. Sangeeta Srivastava and Sh. Rajmohan Srivastava. However due to change in the policies of the society, Plaintiff had to purchase the aforementioned property also in the name of the Defendant. Details of the payment and the source of income is mentioned herein below: From A/C of Plaintiff vide cheque bearing no.160517 - Rs.5,00,000/- cheque bearing no.160518 - Rs.5,00,000/- Vide Cheque bearing no.9143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (in whose name title deeds exist), being the respondent/defendant/wife in the present case. 5. By the impugned judgment since the suit has been held to be barred at the threshold by applying Order VII Rule 11 CPC, and the plaint has been rejected by applying the repealed provision of Section 3(2) of the Act which was no longer applicable, and by ignoring the provision of Section 2(9)(A)(b) Exception (iii) which was applicable, the impugned judgment is hence illegal and is set aside. Whether or not the appellant/plaintiff/husband will or will not have the benefit of Section 2(9)(A)(b) Exception (iii) is a matter of fact which requires trial and such a suit cannot be rejected at the threshold by applying Order VII Rule 11 CPC. 6. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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