Madhya Pradesh High Court
Star Agronomics Limited vs Rio Tinto India Pvt. Ltd. on 13 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
th
ON THE 13 OF MAY, 2024
FIRST APPEAL No.90 OF 2017
BETWEEN:-
STAR AGRONOMICS LIMITED THR.
DIRECTOR DUSHYANG SINGH S/O SHRI
RAMESH SINGH A/A 35 MUKHTYAR
GANG SATNA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SIDDHARTH SHARMA- ADVOCATE)
AND
1. RIO TINTO INDIA PVT. LTD. THR.
MANAGINJG DIRECTOR S. VIJAY
AYYAR S/O NAMALUM 21 FLOOR, DLF
BUILDING NO.5 TOWER ADLF CYBER
CITY PHASE-3 GUDGAON HARYANA
(HARYANA)
2. DIRECTOR (EXTERNAL AFFAIRS AND
COMMERCIAL) KAMAL KANT S/O
NAMALUM RIO TINTO EXPLORATION
INDIA PVT. LTD. BLOCK -9 5TH MANZIL
CORPORATE WINGH DB CITY ARERA
HILLS IN FRON OF ZONE 1 BHOPAL
(MADHYA PRADESH)
3. DIRECTOR SIDDHARTH JAIN RIO
TINTO EXPLORATIN INDIA PVT LTD
UNIT NO. 103-A RIGHT WING 3RD FLOR
CAPITAL COURT PLAT NO. MS 1 LSC
MUNIRIKA PHASE 3 NEW DELHI
(DELHI)
4. ADVIROR EXTERNAL RELATION
KAMAL SETHI S/O NAMALUM RIO
TINTO EXPLORATIN INDIA PVT LTD
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 5/16/2024
3:03:26 PM
2
BANDA GOAN BAKSWAHA 471318
CHHATARPUR (MADHYA PRADESH)
5. COLLECTOR CHHATARPUR THE STATE
OF MADHYA PRADESH DISTT.
CHHATARPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAVINANDAN SINGH - SENIOR ADVOCATE WITH SHRI
MUNAWWAR NASEEM - ADVOCATE FOR THE RESPONDENTS NO.1 TO 4)
(SMT. EKTA GUPTA - PANEL LAWYER)
_______________________________________________________________
This appeal coming on for admission this day, the court passed the
following:
ORDER
With the consent of the parties, matter is heard finally at motion stage.
2. Present first appeal has been filed by the appellant under Section 96 of CPC being aggrieved by order dated 03.12.2016 passed by 2 nd Additional District Judge, Chattarpur, whereby, while allowing the application under Order 7 Rule 11 CPC filed by respondents/defendants, plaint filed by appellant, which has been registered as Civil Suit No.110A/2016 has been rejected.
3. Brief facts of the case are that appellant/plaintiff is a registered company having its due incorporation under the provisions of Companies Act and the suit was filed by the Company represented through one of the directors duly authorized by the resolution of the Board. The case of appellant/plaintiff before the trial Court was that the respondents/defendants No.1 to 4 were the owners of the land situated at Village Baxwaha having an area of 6.68 hectares and 3.28 hectares which they want to sale along with all existing infrastructures/structure. On 03.10.2016, an advertisement was issued in Dainik Bhaskar Newspaper and sealed tender was invited from the interested persons and as per advertisement Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 3 the participants were required to be submitted their tender by 5.30 PM on 20 th October, 2016 alongwith requisite bank draft. Appellant/plaintiff has submitted that tender, after completing all formalities, which was opened and the appellant was declared to be successful bidder. It was specific case of the appellant/plaintiff and also have been pleaded in Paragraph 6 of the plaint that acceptance of the offer of the appellant/plaintiff has been duly communicated by the respondent/defendant No.2 and as a proof of the said acceptance CD containing recording of said conversation was filed along with the requisite certificate under Section 65-B of the Evidence Act with plaint and thus forming integral part of pleadings. Certain mails were exchanged for completion of formalities, however, the respondents/defendants have not shown inclination and the appellant/plaintiff came to know from the newspaper that the respondents/defendants are intending to alienate the property to someone else. Hence, appellant/plaintiff has filed a civil suit under Section 10 of the Specific Reliefs Act making a prayer for execution of the right accrued through the contract which has been concluded between the parties.
4. Learned counsel for the appellant submits that Court below has passed the impugned order on the basis of assumption and presumption. The court below has failed to appreciate that at the time of adjudication of the application filed under Order 7 Rule 11, the Court is only required to look into the averments made in the plaint. The trial Court has lost the sight to the fact that in paragraph 6 and 7 of the plaint, there is a specific averment made by the appellant/plaintiff that the contract has been concluded and the said averment read with the documents filed along with the plaint is disclosing triable cause of action requiring adjudication by the Civil Court. It is submitted that Court below has also failed to appreciate that whether there is concluded contract in the given facts and circumstances of the case itself an issue requiring adjudication only Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 4 after adducing the evidence during trial. The CD filed along with plaint clearly established communication of acceptance the CD was part of challan.
5. Learned counsel for the appellant further submits that court below has committed an error in deciding a factual issue without extending opportunity to appellant/plaintiff to adduce the evidence and prove his case. Learned Court below has also failed to appreciate that absence of written contract cannot be a ground for rejection of plaint as there was specific averments made in the plaint that the offer extended by the appellant/plaintiff has been accepted by the respondent/defendant and the same has also been communicated. It is settled principle of law that communication of acceptance of offer satisfy requirement of valid contract and will give cause of action to appellant for specific performance of contract.
6. Learned counsel for the appellant also submits that Court below has exceeded its jurisdiction while interpreting various clauses of contract and arriving at a conclusion that respondent No.4/defendant No.4 was not authorized to communicate the acceptance and there is no concluded contract. The Court has failed to appreciate that the clauses of bid and contract can be interpreted only in the light of evidence adduced during trial. It is submitted that Court below has failed to appreciate that the said issue is a pure question of fact, which cannot be adjudicated at this stage. The Court below while deciding the application under Order 7 Rule 11 has adjudicated a pure question of fact and has arrived at a conclusion on the basis of assumption and presumption, and goes beyond averment made in plaint, which apparently bad in law and beyond jurisdiction of Court.
7. Learned counsel for the appellant also submits that plaintiff has filed certificate under Section 65-B of the Evidence Act along with CD. Cause of action was clearly pleaded in relevant paras of plaint. Trial Court has wrongly Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 5 allowed defendants' application under Order 7 Rule 11 CPC on the basis of clause-8 of tender as well as note-4 and 5. Trial Court while disposing of defendants application has discussed plaintiffs case on merits and has gone to the extent of mini trial. It is also urged that while deciding application under Order 7 Rule 11 CPC with respect to accrual of cause of action, merits of the case cannot be discussed and evidence cannot be taken into consideration and neither different clauses of tender etc. can be interpreted/assessed. After referring on Jageshwari Devi & Ors. Vs. Shatrughan Ram (2007) 15 SCC 52, it is urged that at the most, plaintiffs case will be a case pertaining to defective cause of action and it is not a case of non-disclosure of cause of action. Trial Court has disposed off application after discussing merits of the case under Order 7 Rule 11(A) CPC. Only disclosure of cause of action is sufficient. Plaintiffs case can be dismissed only if there is non-disclosure of cause of action. It cannot be dismissed for defective cause of action. Further, plaint has to be read as a whole and not partially. Instant case relates to "concluded contract". It is also urged that whether in the present case, contract comes within the purview of concluded contract or not is matter of evidence. At this stage, it cannot be presumed that there is no concluded contract.
8. With respect to above submissions, learned counsel for the appellant has relied upon D. Ramachandran Vs. R.V. Janakiraman and Others (1993) 3 SCC 267 and Eideco Housing and Industries Limited Vs. Ashok Vidyarthi and Others 2023 SCC Online SC 1612. On above grounds, it is urged that appeal filed by appellant be allowed and impugned order passed by the trial Court be set aside and application filed by respondents/defendants under Order 7 Rule 11 CPC be dismissed.
9. Learned Senior counsel for the respondents/defendants, after referring to various clauses of NIT/tender, especially, clause-8 and 11 and note-4 and 5 of Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 6 notice for sale of land, submits, that in the instant case, there was no contract/agreement between the parties. It is also urged that while deciding application under Order 7 Rule 11 CPC, Court can look into documents filed along with the plaint. In the instant case, no agreements/contracts between the parties were ever executed. Further, defendant No.2 is not an authorized person on behalf of defendant No.1 to enter into contract/agreement with plaintiff. It is also urged that transcript is dated 25.10.2016, whereas, transaction took place between plaintiff and defendant No.2 is dated 27.10.2016.
10. With respect to above submissions, learned Senior counsel for the respondents has relied Dahiben Vs. Arvindbhai Kalyanji Bhanushali & Ors. (2020) 7 SCC 366, Sayyed Ayaz Ali Vs. Prakash G. Goyal & Ors. (2021) 7 SCC 456, P.V. Gururaj Reddy & Anr. Vs. P. Neeradha Reddy & Ors. (2015) 8 SCC 331, I.T.C. Limited Vs. Debts Recovery Appellate Tribunal & Ors. (1998) 2 SCC 70, Jageshwari Devi & Ors. Vs. Shatrughan Ram (2007) 15 SCC 52 and M/s Reiance Cement Co. Pvt. Ltd. Vs. Manminder Singh & Ors. in Civil Revision No.361/2022. On above grounds, it is urged that there is no illegality or perversity in the order passed by trial Court. Hence, appeal filed by appellant be dismissed.
11. I have heard learned counsel for the parties and perused record of the case.
12. Perusal of application filed by respondent/defendants reveals that it has been filed primarily on the ground of non-disclosure of cause of action in the plaint filed by plaintiff.
13. Hence, before proceeding further, it would be appropriate to refer the pronouncements relied upon by both the parties.
General Principles Governing Exercise of power under Order 7 Rule 11 CPC:-
Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 714. Hon'ble Apex Court in Eideco Housing and Industries Limited Vs. Ashok Vidyarthi and Others 2023 SCC Online SC 1612 has summarized general principles governing exercise of power under Order 7 Rule 11 CPC as under:-
"17. In Kamala and others v. K. T. Eshwara Sa and others,(2008) 12 SCC 661, this Court opined that for invoking clause (d) of Order VII Rule 11 C.P.C., only the averments in the plaint would be relevant. For this purpose, there cannot be any addition or substraction. No amount of evidence can be looked into. The issue on merits of the matter would not be within the realm of the Court at that stage. The Court at that stage would not consider any evidence or enter a disputed question of fact of law. Relevant paragraphs thereof are extracted below:
21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up.Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject- matter of an order under the said provision.
23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 8
24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject- matter thereof, the application for rejection of plaint should be entertained."
(emphasis supplied)
18. Similar was the view expressed in Shakti Bhog Food Industries Ltd. v. Central Bank of India and another (2020) 17 SCC 260 and Srihari Hanuman- das Totala v. Hemant Vithal Kamat and others (2021) 9 SCC 99.
19. The law applicable for deciding an application under Order VII Rule 11 C.P.C. was summed up by this Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives and (2020) 10 SCC 366 Relevant parts of paragraph 23 thereof are extracted below:
"23 to 23.1 x x x 23.2. The remedy under Order 7 Rule 11 is an independent and special rem- edy, wherein the court is empowered to summarily dismiss a suit at the thresh- old, without proceeding to record evidence, and conducting a trial, on the ba- sis of the evidence adduced, if it is satisfied that the action should be termi- nated on any of the grounds contained in this provision. 23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham liti- gation, so that further judicial time is not wasted. 23.4. In Azhar Hussain v. Rajiv Gandhi 1986 Supp SCC 315, this Court held that the whole purpose of conferment of powers under this provision is to en- sure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :
"12. ... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 9 the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unneces- sarily without point or purpose. Even in an ordinary civil liti- gation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.
xxx xxx xxx 23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.[Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] 23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I. (2004) 9 SCC 512] which reads as :
(SCC p. 562, para 139) "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 10 looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v.
R.V.Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941].
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823.
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint."
20. The same view was reiterated in Kum. Geetha v. Nanjundaswamy 2023 SCC On- line 1407
15. Hon'ble Apex Court in Sayyed Ayaz Ali Vs. Prakash G. Goyal & Ors. (2021) 7 SCC 456 has held as under:-
"10.4. It was necessary for the plaintiff to seek a declaration that the sale deeds were executed merely as a security for the repayment of the loan and a failure to seek such a declaration would come within the purview of the proviso to Section 34 of the Specific Relief Act, 1963.
10.5. The trial court having allowed the application under Order 7 Rule 11(d) CPC committed an error in granting time to the plaintiff to amend the plaint to seek proper relief and pay court fees. Where the rejection of the plaint takes place under Order 7 Rule 11(d), there would be no question of granting time to the plaintiff to rectify the defects in the plaint. Where the suit appears Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 11 from the statements in the plaint to be barred by any law, the defects are not curable."
"Cause of Action " - Order 7 Rule 11 (a) CPC
16. Hon'ble Apex Court in Dahiben Vs. Arvindbhai Kalyanji Bhanushali & Ors. (2020) 7 SCC 366, while interpreting term "cause of action" and other related aspects in relation to Order 7 Rule 11 CPC, has held as under:-
''24. "Cause of action" means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam [Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51] this Court held : (SCC p. 60, para 24) "24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bun-
dle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded."
(emphasis supplied) 24.2. In T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 this Court held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : (SCC p. 470, para 5) "5. ... The learned Munsif must remember that if on a meaningful--not formal--reading of the plaint it is mani-
Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 12festly vexatious, and meritless, in the sense of not disclos- ing a clear right to sue, he should exercise his power un- der Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever draf- ing has created the illusion of a cause of action, nip it in the bud at the first hearing...."
(emphasis supplied) 24.3. Subsequently, in ITC Ltd. v. Debts Recovery Appellate (1998) 2 SCC 70 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
27. In Khatri Hotels (P) Ltd. v. Union of India (2011) 9 SCC 126 :
this Court held that the use of the word "first" between the words "sue" and "accrued", would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh (1991) 4 SCC 1 held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" mean the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected."
Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 1317. Hon'ble Apex Court in D. Ramachandran Vs. R.V. Janakiraman and Others (1993) 3 SCC 267 has held as under:-
" 8. ........ 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 in the 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 a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter."
18. Hon'ble Apex Court in P.V. Gururaj Reddy & Anr. Vs. P. Neeradha Reddy & Ors. (2015) 8 SCC 331 has held as under:-
"5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."
19. Honb'le Apex Court in I.T.C. Limited Vs. Debts Recovery Appellate Tribunal & Ors. (1998) 2 SCC 70 has held as under:-
"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating il- lusions of cause of action are not permitted in law Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 14 and a clear right to sue should be shown in the plaint. (See T. Arivandandam v. T.V. Satya-
pal [(1977) 4 SCC 467]".
20. Hon'ble Apex Court in Jageshwari Devi & Ors. Vs. Shatrughan Ram (2007) 15 SCC 52 has held as under:-
"3. We have heard learned counsel for the parties. We have perused the order of the trial court and of the High Court. We have also perused the plaint filed by the respondent herein. The main ground on which rejection of the plaint was sought was that the plaint does not disclose a cause of action which is a ground specified under Order 7 Rule 11(a) CPC. The trial court on consideration of the averments in the plaint held, and in our view rightly, that it could not be held that the plaint does not disclose a cause of action. It is relevant to state that there is a difference between the non- disclosure of a cause of action and defective cause of action:
while the former comes within the scope of Order 7 Rule 11, the latter is to be decided during trial of the suit. The contention raised on behalf of the appellant that the cause of action disclosed is vague and incomplete, is not a ground for rejection of the plaint, under Order 7 Rule 11 CPC no exception can be taken to the order."
Findings:-
21. Now facts of the case would be examined in the light of above legal propositions for deciding controversy between the parties. With respect to above, para-3 to 12 of plaint are relevant and material which are as follows:-
Þ3- ;g fd çfroknhx.k dh daiuh dh Hkwfe xzke cDlokgk esa vkoklh; o vkS|ksfxd Hkwfe fLFkr gS] ftldk jdok Øe'k% vkoklh; dk 6-685gs- ,oa vkS|ksfxd dk 3-28gs- jdok Fkk] ftlesa iqjkus m|ksx dh e'khusa Hkh yxh Fkh] o v/kkslapjpuk Hkh Fkk ftldk lEiw.kZ fooj.k vuqyXu Þvß esa ntZ gS] vuqyXu Þvß okni= dk gh Hkkx gSA 4- ;g fd fnukad&03-10-2016 ds nSfud Hkk"dj lekpkj i= esa çfroknh Øekad&1 rk 4 us mä vuqyXu Þvß esa nf'kZr Hkwfe o mldh v/kkslajpuk ¼lEiw.kZ e'khus] Hkou o dkj[kkuk½ fodzh djus dh fufonk çdkf'kr dh o mä fufonk fnukad&20-10-2016 dks 5-30 cts fnu rd 'khycan fyQkQs esa fu/kkZfjr jkf'k dk cSad Mªk¶V ds lkFk tek djus dk funsZ'k Fkk] mä fufonk dk foKkiu vuqyXu Þcß gS o nkos dk vax gSA Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 15 5- ;g fd oknh dh daiuh us mä v/kkslajpuk tks vuqyXu Þvß esa nf'kZr gS mls [kjhnus dk fu.kZ; fy;k mä fu.kZ; ds vuqlkj oknh dks vf/k--r fd;k] oknh us le;&lhek ds vanj cSad Mªk¶V ;wfu;u cSad vkQ bf.M;k 'kk[kk lruk ls nks Mh-Mh- dzekad dze'k% 923119 jkf'k 345000@& ,oa 923118 jkf'k 236250@&#i;s fnukafdr 19-10-2016 cuokdj fufonk QkeZ ds lkFk çfroknh daiuh ds çfrfuf/k ds lkFk Nrjiqj dk;kZy; tkdj nksigj 12 cts tek fd;k] mä fufonk QkeZ dh dkih ,oa Mªk¶V dh dkih vuqyXu Þlß o Þnß gS! 6- ;g fd çfroknh dzekad&1 rk 4 us fufonk çi= le;kof/k ckn [kksyk o fufonk çi= pwafd vdsyk vk;k Fkk] blfy;s mls Lohdkj dj Lohdjksfä fnukad&25-10-2016 dks Qksu ls nh] mä Lohdjksfä oknh us vius Qksu ij laxzghr dh ftlesa oknh ,oa çfroknh dzekad&2 ls ckr&phr gq;h] /kkjk 65 ch lk{; vf/kfu;e ds çek.k i= ds lkFk mä ckr&phr dh lhMh is'k gS] tks vuqyXu Þ;ß o Þjß gSA mldk ewy oknh ds eksckbZy Qksu esa laxzghr gSA 7- ;g fd oknh us viuh vfHkLoh--fr çfroknh Øekad&2 dks bZ&esy ds } kjk Hkh oknh us Hkstk] oknh dh vfHkLoh--fr dh bZ&esy dh dkih vuqyXu Þyß gS] ftlds laca/k esa lk{; vf/kfu;e dh /kkjk 65ch dk çek.k i= vuqyXu aÞoß gS tks nkos dk vax gSA 8- ;g fd oknh us çfroknh Øekad&1 rk 4 ds laidZ djus dk ç;kl fd;k ysfdu os cgkuk cukdj foØ; i= rgjhj djkus ls cpus yxs] rc çfroknh Øekad&2 ds dk;kZy; esa tkdj oknh us fnukad&27-10-2016 dks ckr fd;k o çfroknh Øekad&2 dks tkudkjh nh fd mlds ikl jkf'k dh O;oLFkk gS] vki yksx rqjar foØ;i= rgjhj djk;s] ysfdu çfroknh dzekad&2 foØ; i= rgjhj djkus o 'ks"k jkf'k Lohdkj djus esa vkuk dkuh dj le; dh ekax dhA 9- ;g fd oknh us vuqcaf/kr lEifÙk tks vuqyXu Þvß esa nf'kZr gS mldh 'ks"k foØ; dh jkf'k dh O;oLFkk djds foØ; i= rgjhj djkus dk vuqjks/k fd;k] o bl gsrq bZ&esy ls i= Hkh çfroknh dzekad&1 dks Hkstk o 'ks"k çfroknhx.k dks mä i= dks bZ&esy ls Hkstk tks vuqyXu Þ'k&1ß gS mä i= dh çkfIr dh vfHkLoh--fr i= Þ'k&2ß gS] buds laca/k esa /kkjk 65&ch lk{; vf/kfu;e dk çek.k i= Þ'k&3ß gS tks okn i= ds Hkkx gSA 10- ;g fd çfroknhx.k 1 rk 4 vuqyXu Þvß esa nf'kZr lEifÙk;ksa dk foØ;ukek rgjhj djkus esa Vky&Vwy djus yxs] mlh le; vpkud Mh- ch- iksLV uked v[kckj esa fnukad&04-11-2016 dks ,d lekpkj Nik fd çfroknh dzekad&1 rk 4 oknh dks foØ;ukek rgjhj uk djkdj vU; dks lEifÙk O;;u djus dk ç;kl dj jgs gSa] mä lekpkj i= dh çfr vuqyXu Þ"kß gS] tks okn i= dk Hkkx gSA 11- ;g fd lekpkj i= esa mä lekpkj i<+us ds ckn çfroknh Øekad&2 ls laidZ djus dk ç;kl fd;k] ysfdu çfroknh dzekad&2 ls laidZ ugha gks ik;k] çfroknh Øekad&3 ls fnukad&04-11-2016 dks laidZ gqvk rks mUgksaus izfr- ls ckrphr eksckby ij ,oa lk{; vf/k- izek.ki= vrqy Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 16 ^;* ,oa ^j* lafonk ds vuqlkj nLrkost iathdj.k djkus esa vleFkZrk O;ä dh] ftl dkj.k oknh dks okn dkj.k çkIr gks x;kA 12- ;g fd oknh us fof/k iwoZd lafonk gsrq fufonk QkeZ Hkjk Fkk] o okafNr jkf'k dk Mªk¶V ;wfu;u cSad vkQ bf.M;k 'kk[kk lruk ls nks Mh-Mh- Øekad dze'k% 923119 jkf'k 345000@& ,oa 923118 jkf'k 236250@&#i;s fnukafdr&19-10-2016 cuokdj Hkstk ftls çfroknh dzekad&1 rk 4 us Lohdkj fd;k o oknh dh fufonk Lohdkj dh x;h] ;g tkudkjh nh] o oknh lnSo jkf'k ds lkFk nLrkost iath;u djkus ds fy;s rS;kj gS] ysfdu çfroknh dzekad&1 rk 4 oxSj fdlh fof/kd otg ds lafonk dks Hkax djus ij vkenk gS] blfy;s mä lafonk ds vuqikyu ds fy;s fof/kd funsZ'k oknh çkIr djus dk eqLrgd gSAß
22. Thus, plaintiff has filed present suit on above grounds for specific performance of contract under Section 10 of Specific Relief Act.
23. Sole issue before this Court is whether parties entered into any contract/agreement and there was any "concluded contract"/"executable contract/"enforceable contract" between the parties. Perusal of plaint averments as well as documents filed along with plaint clearly reveal that parties did not enter into any agreement or contract and there was no contract/"executable contract"/"concluded contract"/"enforceable contract" between the parties.
24. Perusal of documents filed along with plaint, especially, NIT/tender and plaint averments itself do not show that there was any stipulation in tender to the effect that parties can enter into oral/implied agreement or there can be any oral/implied agreement/contract between the parties with respect to the bid. As per terms and conditions of NIT/tender, the successful bidder was required to execute contract/sale agreement etc.
25. Further, note-4 and 5 of "notice for sale of land" reads as under :-
''4. Tendering process can be withdrawn by Seller at any point of time during the whole process without any obligation to bidders.Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 17
5. Seller has sole discretion of selecting and accepting the bids.''
26. Clause-8 of terms and conditions of the tender reads as under:-
8. "Tendering Process can be withdrawn at any point during the process of tender without any reason and Seller will not have any liability towards bidder. In such case, Bid submitted by Bidder will be returned along with EMD amount."
27. Further, there is nothing on record to show that the person with whom plaintiff's conversation took place, as per the transcript/CD attached with the plaint, was an authorized person on behalf of the respondent company to enter/execute agreement/accept bid on behalf of the Company.
28. Thus, in the instant case, there is no valid concluded/executable/enforceable contract/agreement between the parties on record. Hence, in view of discussion in the foregoing paras, in this Court's opinion, it is not a case of defective cause of action, instead, it is a case where plaint ex-facie does not disclose any cause of action. For reaching the "above conclusion", merits of the case/evidence of the case is not required to be discussed/assessed and examined at all. Further, construction and interpretation of terms and conditions of the tender document etc is not required at all. Above conclusion is inevitable/apparent from plaint and documents filed along with plaint.
29. I have also gone through the impugned order and perusal of the same reveal that trial Court has discussed and examined all the aspects in detail and order passed by the trial Court is as per law and facts of the case. No interference is required in the same.
30. Hence, in this Court's opinion, trial Court has rightly dismissed plaintiff suit on the ground that it does not disclose any cause of action. No interference is required in the same.
Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM 1831. Hence, in view of discussion in the foregoing paras, and appeal filed by the appellant is dismissed and findings recorded by Tribunal are affirmed.
(ACHAL KUMAR PALIWAL) JUDGE vai Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/16/2024 3:03:26 PM