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[Cites 17, Cited by 0]

Delhi District Court

Sandhya Gupta vs Rani Bansal on 31 March, 2014

               In the Court of Pawan Kumar Matto
                Additional District Judge­01 (East)
                    Karkardooma Courts, Delhi.

Suit No.174/2012

In the matter of :­

Sandhya Gupta                                             .....Plaintiff

                                  Versus

Rani Bansal                                               .....Defendant

                               O R D E R

31.03.2014

1. This order of mine will dispose of an application U/o 7 rule 11(a) CPC filed by the defendant.

2. Brief facts of the case are that the plaintiff has filed the present suit for recovery of Rs.10 lacs against the defendant, stating therein that the parties to the present lis were known to them for the last many years. It is further averred that plaintiff had executed power of attorney dated 30.07.2012 in favour of Sh. Nitin Gupta S/o late Sh. M L Gupta to pursue the present matter. It is further averred that sometime in the month of November, 2011, the defendant had made an oral representation before the plaintiff that she was in need of money to the tune of Rs.10 lacs and requested to the plaintiff for arranging the same and in order Suit No.174/2012 Page No.1 of 15 31.03.2014 to avoid any future dispute, the plaintiff had asked to the defendant to mortgage something in exchange of money. It is further stated that defendant had informed to the plaintiff that she is the absolute owner of the shop i.e. property bearing No.D­255, area of which 32.5 sq. yards, plinth covered area 27.17 sq. meters, out of khasra No.642, Anaj Mandi, Shahdara, Delhi­110032 and she is desirous to keep the same as mortgage in exchange of money and in pursuance thereof, on dated 30.12.2011, both the parties had entered into a Mortgage Agreement, in accordance with which, it was agreed upon that a sum of Rs.10 lacs in cash will be paid by the plaintiff to the defendant for a period of three months and the last date for the return of money was 30.03.2012 and defendant had duly acknowledged the receipt thereof. It is further averred that it was also agreed upon between the parties that defendant had to deposit the original sale deed / papers of the mortgage property with the plaintiff. It is further averred that on 30.03.2012 the plaintiff had called to the defendant and asked her to repay the loan amount and to take back her original sale deed / papers of the mortgage property. It is further averred that defendant had told to the plaintiff that she needs some more time for repayment of the loan and plaintiff made several Suit No.174/2012 Page No.2 of 15 31.03.2014 efforts to get her money back, but, all in vain and defendant had avoided the requests of the plaintiff on one pretext or the other and the plaintiff had also called to the defendant on her mobile phone, but, defendant did not respond to the calls of the plaintiff. It is further averred that plaintiff had issued a legal notice dated 30.04.2012 to the defendant, which was dispatched to the defendant on 02.05.2012 for calling upon the defendant to repay the money and the said legal notice was duly served upon the defendant and on 05.05.2012, the plaintiff had written a request letter to the Sub­Registrar­ VIII, Geeta Colony, Delhi to not register any transfer document in respect of the mortgaged property bearing No.D­255, Area of which is 32.5 Sq. yards out of Khasra No.642, Anaj Mandi, Shahdara, Delhi­110032 and on 12.05.2012 the counsel for the plaintiff had also published a public notice in the newspaper Rashtriya Sahara for informing to the general public regarding the said mortgage agreement executed between the plaintiff and defendant and to not enter / deal with the defendant in respect of the mortgaged property and prayed for passing a decree of recovery of Rs.10 lacs alongwith interest @ 24% per annum on the amount payable from 01.04.2012 till receiving thereof and also for awarding the cost of the suit. Suit No.174/2012 Page No.3 of 15

31.03.2014

3. Whereas, the defendant has filed the application under consideration U/o 7 rule 11(a) CPC, on the averments that the plaintiff has filed the present suit for recovery of Rs.10 lacs on the basis of the mortgage agreement dated 30.12.2011 executed between the plaintiff and defendant and the said agreement is not registered, as per provisions of section 17 of the Indian Registration Act, 1908 and section 59 of the Transfer of Property Act, 1882. It is further averred that the defendant had no reason or occasion to enter into the alleged mortgage agreement dated 30.12.2011, as defendant had no right, title or interest in the said property on the date of alleged agreement, as the same was sold twice time vide registered sale deeds dated 10.12.2010 & 22.12.2010, so, the mortgage agreement itself is void for want of valid consideration u/s 25 of the Indian Contract Act, 1872 and the present suit is also hit by Section 68 of the Transfer of Property Act, 1872 and prayed for rejection of the suit under order 7 rule 11(a) CPC with exemplary cost.

4. On the other hand, the plaintiff has filed reply to the said application and contested the same on the grounds inter alia that application is not maintainable, as the same is gross misuse of the process of law and defendant has not come to the court with clean hands and she has suppressed the true Suit No.174/2012 Page No.4 of 15 31.03.2014 and material facts from the court, as in her Written statement, she has nowhere stated that the documents relating to mortgage of the property are not having her signature and a case U/s 420/120­B/34 IPC vide FIR No. 30/2013 has been registered in the PS Farsh Bazar against the defendant and she has stated in her bail application that her signatures were obtained on blank papers and further stated that the document which is not registered can be look into for the collateral purpose and plaintiff has entered into a mortgage agreement, which was only for the purpose of security and further stated that application is nothing, but is a delaying tactics opted by the defendant and also stated that by way of filing the present application, the defendant is trying to take advantage of her own wrongs and replying to the application on merit, it is not denied that said agreement is not registered and stated that agreement is not required to be registered compulsorily and the same itself is a receipt of payment, as there is acknowledgment. It is also denied that defendant had no reason or occasion to enter into the said alleged mortgage agreement dated 30.12.2011. It is denied that suit property was sold away vide registered documents and after denying all other averments made in the application, she has sought dismissal thereof. Suit No.174/2012 Page No.5 of 15

31.03.2014

5. I have heard the ld. counsels for the parties and perused the record.

6. The Ld. Counsel for the defendant has submitted that suit of the plaintiff is based on the mortgage agreement which is not registered, whereas, the same is required to be registered. He has also submitted that first party has put her signature on the mortgage agreement in place of signature of second party, whereas, second party has put her signature in place of first party. He has also submitted that in view of non registration of the mortgage agreement, the suit of the plaintiff is liable to be dismissed.

7. On the other hand, the Ld. counsel for the plaintiff has submitted that at the time of disposal of the application U/o 7 rule 11 CPC only the averments made in the plaint are required to be looked into and as per averments made in the plaint, it is clear that defendant has mortgaged the property and received an amount of Rs.10 lacs from the plaintiff and original documents of the property were handed over to the plaintiff. He has also submitted that since the defendant has received an amount of Rs.10 lacs at the time of execution of the mortgage agreement and also submitted that there is a difference between mortgaging of the documents and mortgaging of the property. He has also submitted that Suit No.174/2012 Page No.6 of 15 31.03.2014 defendant has mentioned a judgment in the application title whereof is Rachpal Maharaj v. Bhagwandas Daruka and others, AIR (37) 1950 Supreme Court 272. He has also submitted that in the said judgment, their lordship of Supreme Court of India is pleased to hold the same and further submitted that mortgage agreement can be looked into despite of the fact of its unregistration for collateral purposes and from the law laid down by their lordship of Supreme Court of India in the said judgment, it is clear that the suit of the plaintiff is well maintainable despite of the fact that mortgage agreement is unregistered and submitted that application is nothing, but, is a gross misuse of the process of law and same has been filed to delay the proceedings of the present matter as on the one side the defendant has handed over the original document to her property to the plaintiff and executed the mortgage agreement and she has sold away the said property and thus she has also committed cheating with the plaintiff and in view of said conduct of the defendant, an FIR has been registered against her and her anticipatory bail application has already been dismissed by the court of sessions. He has also submitted that defendant is opting dilatory tactics by way of moving such frivolous application. He has also Suit No.174/2012 Page No.7 of 15 31.03.2014 submitted that defendant has admitted the signature of the defendant on mortgage agreement dated 30.12.2011 and this is the subject matter of trial that even if, the second party had put her signatures in place of first party and second party had put her signature in place of first party and from the contents of the mortgage agreement dated 30.12.2011, it is clear that this is the subject matter of trial, so, the application u/o 7 rule 11 CPC is not maintainable, so, the same is liable to be dismissed.

8. I have given thoughtful consideration to the submissions made by the ld. counsels for the parties and perused the record.

9. Perusal of the record shows that the plaintiff has filed the present suit for recovery of Rs.10 lacs against the defendant and from the perusal of the conjoint reading of all the paras of the plaint, it is clear that defendant had mortgaged the property and executed the mortgage agreement dated 30.12.2011 and took a sum of Rs.10 lacs from the plaintiff and the same was also acknowledged by the defendant, whereas, the ld. Counsel for the defendant has submitted that in view of non­registration of the said mortgage agreement, the plaint of the plaintiff is liable to be rejected. But, as per the law laid down by their lordship of Suit No.174/2012 Page No.8 of 15 31.03.2014 Apex Court in case Rachpal Maharaj v. Bhagwandas Daruka and others, AIR (37) 1950 Supreme Court 272 is pleased to hold that "when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instruments is required under S.59 as in other forms of mortgage. But, if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be sole evidence of its terms." Thus, from the perusal of the judgment passed by their lordship of Supreme Court of India in above said judgment, it is clear that the defendant had deposited the document of her property with the plaintiff to create security, so, no registration is required to be done compulsorily, as mentioned U/s 17 of the Indian Registration Act.

10. Their lordship of Supreme Court of India in case Bhau Ram v/s Janak Singh & ors., Civil Appeal No.5343 of 2012, is pleased to hold that:­ "In order to ascertain an answer for the above question, we have to consider whether the application under order 7 rule 11 of CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other material filed by the defendant Suit No.174/2012 Page No.9 of 15 31.03.2014 in support of the application can also be looked into. The trial court allowed the application of the appellant/defendant no.1 filed u/o 7 rule 11 of CPC on the ground that the plaint was barred under the provisions of order 9rule 8 and 9 of CPC and order 23 rule 1(3) & (4)(b) of CPC. The said order of the trial court was set aside by the first appellate court on the ground that the trial court had taken the pleas from the written statement of the defendant which is not permissible under order 7 rule 11 of CPC and the High Court in the second appeal confirmed the judgment of the first appellate court.

It is relevant to point out the findings of the trial court particularly with reference to the suit no. 424/1 of 99/97 which was dismissed for default had been restored by the trial court even at the time of filing of the application by the defendant under order 7 rule 11 of CPC and it is also brought to out notice that the said proceedings are going on. In view of the same, the provisions of order 9 rule 8 and 9 of CPC are not applicable to the said suit. Even otherwise, the relief sought in the suit (which was earlier dismissed for default) and in the present suit are with regard to different properties. For the same reasons, the provisions of order 23 rule 1(3) and 4(b) of CPC are not applicable.

The law has been settled by this court in various decisions that while considering an application u/o 7 rule 11 of CPC, the court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. Vide C Natrajan v/s Ashim Bai and another,(2007) 14 SCC 183, Ra Prakash Gupta vs Rajiv Kumar Gupta and others (2007) 10 SCC 59, Hardesh Ores (P) Ltd vs Hede and Company, (2007) 5SCC 614, Mayar (H.K) Ltd. And others vs Owners & Parties, Vessel M V Fortune Express and others,(2006) 3SCC 100, Sopan Sukhdeo Sable and others vs Assistant Charity Commissioner and others ,(2004) 3SCC 137, Saleem Bhai and others vs State of Maharashtra and others, (2003) 1 SCC 557]. Suit No.174/2012 Page No.10 of 15

31.03.2014 The above view has been once again reiterated in the recent decision of this curt in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee,2012(6) JT 149."

11. Their lordship of hon'ble Supreme Court in case The Church of Christ Charitable v/s M/s Ponniamman Educationql 2012(8) SCC 706, is pleased to hold that:­ "the appellant herein, as the first defendant before the trial judge, filed application u/o 7 rule 11 of CPC of the plaint on the ground that it does not show any cause of action against him, at the foremost, it is useful to refer the relevant provision.

It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under order 7 rule 11 of CPC can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trail . This position was explained by this court in Saleem Bhai & ors vs State of Maharashtra and others ,(2003) 1SCC 557, in which , while considering Order 7 rule 11 of CPC, it was held as under:­ "9. A perusal of Order 7 rule 11 of CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments Suit No.174/2012 Page No.11 of 15 31.03.2014 in the plaint. The trial court can exercise the power u/o 7 rule 11 of CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses(a) and (d) of Rule 11 of order 7of CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore a direction to file the written statement without deciding the application u/o 7 rule 11 of CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court...".

It is clear that in order to consider order 7 rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint.

While scrutinizing the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words "cause of action" and cause of action must include some act done by the defendant since in the absence of such an act no Suit No.174/2012 Page No.12 of 15 31.03.2014 cause of action can possibly accrue."

12. Their Lordship of hon'ble Supreme Court of India in case D Ramachandran V/s R V Janakiraman and others AIR 1999 SC1128:(1999) 1SCR 983:(1999) 3SCC 267:JT 1999 (2) SC94:

(1999)1 SCALE 693 has held that:­ "We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well settled that in all cases of preliminary objection; the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made int he petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or triable issue as such. The court can not probe into the facts on the basis of the controversy raised in the counter.

Under order VI, rule 16, the court is enabled to strike out a pleading (a) which may be unnecessary, scandalous, frivolous or vexatious or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c)which is otherwise an abuse of the process of the court. We have already pointed out that it is not the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was not at all justified.

On the other hand, Rule 11 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this Suit No.174/2012 Page No.13 of 15 31.03.2014 rule. The application filed by the first respondent in O:A 36/97is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of O.VII, R.11(a) CPC the court cannot dissect the pleading into several parts and consider whether each one of theme discloses a cause of action. Unde the rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill (1982) SCC 487. We are satisfied that the election petition in this case could not have been rejected in limine without a trial.

Tilak Raj Bhagat vs Ranjit Kaur & Ors. 2012 VAD(DELHI) wherein it has been held that it may be worthwhile to mention here that while considering an application under order 7 rule 11 of CPC , the court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made int he application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff."

13. It is settled principle of law that at the time of disposal of application U/o 7 rule 11 CPC, only the facts mentioned in the plaint are required to be seen and the defence set up by the defendant cannot be looked into.

14. It is also settled principle of law that the averments made in the plaint are the GERMANE and the cause of action has to be culled out on the conjoint reading of all the Suit No.174/2012 Page No.14 of 15 31.03.2014 paragraphs of the plaint.

15. Since as per the law laid down in the above said judgments, it is crystal clear that at the time of disposal of the application U/o 7 rule 11 CPC the contents of the plaint are to be looked into and line of defence or grounds of defence taken by the defendant cannot be looked into and in the case in hand, from the conjoint reading of all the paras of the plaint, it is clear that the plaintiff has valid cause of action to file the suit against the defendant.

16. Cumulative effect of the above discussion is that this court does not find any force in the submissions made by the ld. Counsel for the defendant. Accordingly, the application filed by the defendant U/o 7 rule 11(a) CPC is hereby dismissed, being devoid of merit.

17. In the above said terms, the application filed by the defendant U/o 7 rule 11 CPC stands disposed of. Announced in the open Court on 31.03.2014 ( Pawan Kumar Matto ) Additional District Judge­01 (East)/KKD/Delhi / 31.03.14 Suit No.174/2012 Page No.15 of 15 31.03.2014