9911796707
TMI Blog1999 (7) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... f's suit is in essence for a declaration that the settlement recorded in a letter dated July 7, 1993 addressed by the Housing Commissioner on behalf of the Punjab Housing Development Board of the Government of Punjab to the Defendant Bank is void, as having been procured by coercion as defined in Section 15 of the Indian Contract Act, and claiming consequential relief of damages amounting to ₹ 65,58,981.04 (Rupees sixty five lacs fifty eight thousand nine hundred eighty one and paise four only). 3. The Defendant submits that the suit as framed without seeking the relief of declaration that the aforesaid agreement entered into on behalf of the Punjab Housing Development Board is void and for cancellation thereof is not maintainable." 2. Reply to the application was filed and it was contested by the plaintiff. Learned trial Court vide its order dated 4-3-1997 dismissed the application of the defendant and allowed the application of the plaintiff for admission and denial of documents. The concluding part of the impugned order dated 4-3-1997 reads as under :-- "On the other hand, the learned counsel for the respondent/plaintiff argued forcibly that it is again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. No facts constituting an assailable cause of action on the plea of misrepresentation, fraud or coercion has been pleaded in the plaint to justify continuation of the suit, in other words, the plaint does not disclose any cause of action in the eyes of law. For this purpose, the learned counsel placed reliance upon the following portions of the letter dated 7-7-1993 :-- "(8) AND WHEREAS there have consequently been protracted negotiations between the Bank and the Board resultant upon which it has been agreed that the Bank would immediately return the principal amounting to ₹ 9,75,58,904.11 to the Board. The interest would be calculated at the rate of 17% p.a. for the first six months up to 3rd Sept., 1992, which amounts to ₹ 82,92,507/- (which has already been received by us) and for the balance period i.e. 4th Sept., 1992 till date of payment of the principal amount, interest would be paid at the rate payable on fixed deposits of this length of time, which, calculated at the rate of 12 1/2% per annum comes to ₹ 1,02,23,638/-. Also in case and as and when the IRFC Bonds are transferred in the name of the Bank of Andhra Bank returns the moneys due to the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with any and all matters arising out of or concerning the same without any right in the board in respect of the usufructs, proceeds or benefits of such demand, suit enforcement, settlement, compromise or other dealing(s) and the Board hereby disclaims, waives and relinquishes in favour of the Bank any and all rights and claims whatsoever that it may have with respect thereto." 5. While on the other hand, the learned counsel appearing for the respondent has contended that the plaint read with the documents placed on record by the plaintiff constitutes a complete cause of action entitling the plaintiff for determination of his suit on merits. He further contended that the letter dated 7-7-1993 in fact stood revoked by subsequent correspondence between the parties and sufficient grounds have been taken in the plaint to satisfy the basic ingredients under Sections 13 to 19A of the Contract Act. The pleas taken and documents read in support thereof render the letter dated 7-7-1993 ineffective and inconsequential. He mainly relied upon the notice given by the counsel on behalf of the plaintiff to the defendant on 7-8-1993 itself. He emphasized on the pleas taken in the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PLEA OF DEMURRER". A person raising such plea in law has to take the facts as stated by the opponent as correct. Despite tentative admission of such correctness, the plaint does not disclose a complete or even partial cause of action or the relief claimed is barred by law and thus, the plaint is liable to be rejected within the provisions of Order 7, Rule 11 of the Code of Civil Procedure. Plain language of this rule shows that for determination of an application under this provision, the Court has to look into the plaint. This concept has been extended by judicial pronouncement of various Courts so as to take within its ambit even the documents filed by the plaintiff along with plaint or subsequent thereto but prior to the hearing of such application. It would be moreso where the documents have been referred to in the plaint itself. But the defence raised by the defendants in his written statement or the documents filed along therewith certainly falls beyond the zone of consideration, where an application for rejection of a plaint is being considered by the Court. The language of the rule does not admit any scope for doubt that the written statement filed by the defendant can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i argued that the plaint and the documents filed on record fully discloses an actionable causes in favour of the plaintiff. He further contended that an application for amendment is already pending before the trial Court which itself will frustrate the alleged defence pointed out by the petitioner before this Court. It is also argued by Mr. Awasthi that the matter can be gone into only upon conclusion of complete evidence and not by means of filing the present application. Mr. Awasthi contended that the impugned order passed by the learned trial Court does not call for any interference within the limited scope of revisional jurisdiction of this Court. 11. Well accepted canons of civil jurisprudence makes a clear distinction between "plaintiff has no cause of action" and "the plaint does not disclose cause of action" in the earlier part, there is complete absence of a right to sue. While in the latter, the right to sue may exist, but it is not well founded on the basis of the averments made in the plaint. The plaint lacks essential and material particulars which would give an effective cause of action to the plaintiff. Where on the face of it, the plaint does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refrom or in connection with the said investment of rupees more than 9 crores. The bare reading of the plaint itself shows that the plaintiff has challenged the validity, legality of the letter dated 7th July, 1993 and has prayed for its cancellation in paragraph 20 of the plaint. It the right of the plaintiff to recover its total amounts. The Board has filed the suit for recovery of Rs, 65,58,981/- as already noticed. The plaintiff has taken up the ground of misrepresentation, concealment of facts and fraudulent conduct on the part of the present petitioner. In addition to reference to the specific documents executed between the parties, a reference has been made to the notice dated 7th August, 1993, served, by the Board through its counsel upon the petitioner withdrawing the letter dated 7th July, 1993 much prior to the institution of the suit and calling upon the defendant (petitioner) to pay its amounts. Various preliminary objections have been taken with regard to the maintainability of the suit and also the plea of waiver and estoppel. In other words, various documents placed on record by the parties and more particularly the documents referred to in the plaint on their adjun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e where the judgment and decree had already been drawn by the Court of competent jurisdiction and even the appellate Court had passed the judgment and decree. 19. The above paragraphs of the plaint: seen in the right of the documents filed by the plaintiff on record, more particularly the notice and the averments that it was entirely because of undue influence exercised by the petitioner declining to refund the public money and commanding the public to sign a letter as per draft cannot be said to be a case of no pleadings or where the plaint discloses no cause of action. The Court must see the cumulative effect of the case pleaded in the plaint supported by the documents, if filed by the plaintiff, to examine the totality of the consequences arising from the provisions of Order 7, Rule 11 of the Code of Civil Procedure for limited scope and it is neither permissible nor proper for this Court to take into consideration the defence of the defendants. The learned trial Court has permitted the plaintiff to lead evidence and has protected the interest of the present petitioner by keeping in view the questions in relation to waiver and estoppel as well as constituents of fraud and misre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and proper cannot be frustrated, the amount being less than the amount claimed in the plaint. Thus, in any case the plaint to the limited extent discloses cause of action in favour of the plaintiff bank and against the defendant. What will be the merit of this claim is again a question to be gone into by the Court at the appropriate stage and upon conclusion of evidence. Partial rejection of a plaint is against not permissible. The provisions of Order 7, Rule 11 of the Code of Civil Procedure are intended to finally determine the rights of the parties at earlier stage on the limited grounds stated in that rule. A Bench of this Court in the case of Bansi Lal v. Som Prakash held as under :-- This rule (Order 7, Rule 11) does not justify the rejection of any particular portion of a plaint." In support of this statement the learned author has relied on Raghubans Puri v. Jyoti Swarupe ILR 1907 All 325, Appa Rao v. Secretary of State and Maqsud Ahmad v. Mathura Datt and Co. AIR 1936 Lah 1021. "I am therefore of the opinion that the learned Senior Subordinate Judge was in error in upholding the rejection as to a part and setting aside the rejection in regard to the other pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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