Avneet Singh Bedi And Anr vs Inder Pal Singh And Ors on 13 August, 2019

[Cites 12, Cited by 1]

Delhi High Court

Avneet Singh Bedi And Anr vs Inder Pal Singh And Ors on 13 August, 2019

1. Some of the salient facts of this case are that the suit is filed for declaration that MOU dated 02.08.2017 is unenforceable, illegal, null and void and not binding on Plaintiff No. 1; for a declaration that MOU dated 27.07.2017 is also unenforceable, illegal, null and void and for a declaration that the Agreement to Sell dated 15.12.2015 is unenforceable, illegal, null and void. Other connected reliefs are also sought. The grievance of the plaintiffs essentially is that plaintiff No. 1 was coerced to sign the MOU dated 02.08.2017 while he was in judicial custody. It is stated that plaintiff No. 1 in view of various FIRs registered against him and the fact that he was CS(OS) 687/2017 Page 1 of 10 in judicial custody started fearing for the safety of his family and ultimately succumbed to the pressure mounted by defendant No. 1 and other defendants. He was coerced to give into their demands. Regarding the settlement agreement dated 27.07.2017, it is pleaded that the relatives of plaintiff No. 1 were coerced and intimidated into executing the said settlement agreement. It has been pointed out that plaintiff No. 1 was in judicial custody from 02.07.2017 to 10.08.2017.

2. I may only note that the matter is only at the stage of issuing summons to the defendants.

3. When this matter came up for hearing on 09.01.2018, this court had not issued summons and noted as follows:-

"6. The counsel for the plaintiffs states that the consequences under Section 64 of the Indian Contract Act, 1872 will follow and status quo ante will be restored. It is also stated that the plaintiffs have not derived any benefit.

7. The narration in the plaint appears to suggest that the plaintiff no.l was coerced into execution the MoUs only for the reason of coming out of incarceration and having the FIR against him closed. If that was not the consideration, then it appears that the substratum of the ground on which coercion is pleaded would disappear.

8. As far as I recollect, there is a dicta of this Court qua such pleas. The counsel is requested to look up the same. Reference be made to Texim. Engineering Vs. Texcomash Exports (2009) 162 DLT 444 and Texim Engineering Vs. Texcomash Export ILR (2011) IV Del 176 (DB)."

4. Learned counsel for the plaintiffs seeks to rely upon the judgments of the Division Bench of this court in the case of Bright Enterprises Pvt. Ltd.

CS(OS) 687/2017 Page 2 of 10

& Anr. vs. M.J. Bizcraft LLP & Anr., RFA(OS) (COMM) 8/2016 dated 04.01.2017 and Texem. Engineering vs. Texcomash Exports, ILR (2011) IV DELHI 176 (DB) to contend that it is only in the cases where the plaint fails to disclose a cause of action or the suit is barred by law that the court would not issue summons to the defendant.

5. Learned senior counsel for defendants No. 1 to 4 has relied upon the judgment of the Division Bench of this court in the case of Ravindra Kishore Sinha v. Manjula Bhushan, 2010 (166) DLT 121 DB (Del.). He also seeks to rely upon the judgment of the Supreme Court in the case of State of Punjab & Ors. vs. Dhanjit Singh Sandhu, AIR 2014 SC 3004.

6. Reference may be had to the relevant statutory provisions of CPC, namely, Section 26, 27, Order IV Rule 1 CPC, Order V Rule 1 CPC and Order VII Rule 5 CPC which read as follows:-

"26. Institution of suits Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

Summons and Discovery

27. Summons to defendants Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed."

"ORDER IV : INSTITUTION OF SUITS

1. Suit to be commenced by plaint (1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Order VI and VII so far as they are applicable.

(3) The plaint shall not be deemed to be duly instituted unless it CS(OS) 687/2017 Page 3 of 10 complies with the requirement specified in sub-rules (1) and (2).

xxx"

"ORDER V : ISSUE AND SERVICE OF SUMMONS Issue of Summons

1. Summons (1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within 30 days from the date of service of summons on the defendant:

xxx Provided further that where the defendant fails to file the written statement within the said period of 30 days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment on such costs as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.

xxx"

"ORDER VII xxx

5. Defendant's interest and liability to be shown The plaint shall show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiff's demand.

xxx"

CS(OS) 687/2017 Page 4 of 10

7. In Texem. Engineering vs. Texcomash Exports(supra), the Division Bench noted that the learned Single Judge had rejected the plaint under Order 7 Rule 11 CPC based on a settlement between the parties which was relied upon by the plaintiff/applicant and denied by the defendant. The Division Bench held as follows:-

"8. We say this for the reason that on a perusal of the Plaint, it is uncontrovertedly clear to us that the Plaintiff does not rely solely on the „Settlement‟ which the learned Single Judge has viewed as being illegal and consequently hit by Section 23 of the Indian Contract Act. Had there been no commercial or other dealings between the parties, nonetheless a compact had been arrived at between them for payment by the Defendant to the Plaintiff of a sum of money in return for the Plaintiff and/or his sister making favourable statements to ensure the closure of FERA proceedings against the Defendant, such a contract would indubitably have been hit by Section 23. As we see it, the Plaintiff may succeed in proving his claim for the sum of Rs.1,00,17,972/- by leading evidence of the transactions which allegedly earned and entitled the Plaintiff to commission at the rate of Rs.15/- per kilogram, thereafter reduced to Rs. 9/- per kilogram. The learned Single Judge has found no illegality in these transactions between the parties. It is for this reason that Section 23 of the Indian Contract Act is of little relevance. We also find it impossible not to conclude that the learned Single Judge has erred in going threadbare into the defences to the claim proffered by the Defendant. What has to be considered in the context of Order VII Rule 11 of the CPC, we may reiterate, as has been spelt out time and again in several judgments, is to understand and digest the cause of action that has been narrated in the Plaint. Proving or disproving that cause of action can only be considered after the parties have gone to Trial and have completed their evidence."

8. The Division Bench in Bright Enterprises Pvt. Ltd. & Anr. vs. M.J. Bizcraft LLP & Anr.(supra) noted as follows:-

CS(OS) 687/2017 Page 5 of 10

"18. From the above and particularly upon examining the provisions of Section 27 and Order V Rule 1(1) CPC, it is evident that when a suit is regarded as having been „duly instituted‟, a summons may be issued to the defendant. The use of the expression „duly instituted‟ has to be seen in the context of the provisions of Orders VI and VII of the CPC. In the present matter, it is nobody‟s case that the suit had not been duly instituted in the sense that it did not comply with the requirements of Order VI and VII CPC. It is neither a case of return of a plaint under Order VII Rule 10 nor a case of rejection of a plaint under Order VII Rule 11 CPC. The present case is one of dismissal of the suit itself on merits. Therefore, the only thing that needs to be examined is whether the Court had a discretion to issue or not to issue summons given that the suit had been duly instituted. In our view, the use of the word „may‟ does not give discretion to the Court and does not make it optional for it to issue summons or not. This is further fortified by the fact that the first proviso to Order V Rule 1(1) itself gives a situation where summons must not be issued and that happens when a defendant appears at the presentation of the plaint and admits the plaintiff„s claim. Therefore, in such a situation, there is no requirement for issuance of summons and that is why the word „may‟ has been used in Order V Rule 1(1). In all other cases, when a suit has been „duly instituted‟ and is not hit by either Order VII Rule 10 or Order VII Rule 11 CPC, summons has to be issued to the defendant.

19. In the present case, the learned Single Judge has neither returned the plaint under Order VII Rule 10 nor rejected the plaint under Order VII Rule 11 CPC. Therefore, it was incumbent upon the learned Single Judge to have issued summons to the respondents /defendants, particularly because the respondents/defendants had not appeared at the time of presentation of the plaint and did not admit the claim of the appellants / plaintiffs. The Rule of audi alteram partem is embedded in Order V Rule 1 sub-rule (1) read with Section 27 CPC.

CS(OS) 687/2017 Page 6 of 10

20. We may also point out that there is a clear distinction between „return of a plaint‟, „rejection of a plaint‟ and „dismissal of a suit‟. These three concepts have different consequences. A dismissal of a suit would necessarily result in a subsequent suit being barred by the principles of res judicata, whereas this would not be the case involving „return of a plaint‟ or „rejection of a plaint‟. What the learned Single Judge has done is to have dismissed the suit of the appellants/plaintiffs at the admission stage itself without issuance of summons and this, we are afraid, is contrary to the provisions of the statute."

9. A perusal of the facts here does not show that the plaint fails to disclose any cause of action. It does not also show that it is barred by any provision of law. It may be a weak case and may not ultimately result in a decree in favour of the plaintiffs. At the stage of issuing summons, this court would not have to go into the merits of the case or the merits of the submissions being made.

10. Learned senior counsel for defendants No. 1 to 4 has however vehemently argued that as far as the agreement to sell is concerned, the same has been executed by the relatives of plaintiff and has nothing to do with plaintiff No. 1 being in custody and was executed way back in 2015. Learned senior counsel has also heavily relied upon the judgment of the Supreme Court in the case of State of Punjab & Ors. vs. Dhanjit Singh Sandhu(supra). The relevant part of the said judgment reads as follows:-

"22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (vide C.I.T. v. Mr. P. Firm Maur MANU/SC/0143/1964 :

AIR 1965 SC 1216).

23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and CS(OS) 687/2017 Page 7 of 10 derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra State Road Transport Corporation v.

Balwant Regular Motor Service, Amravati and Ors. MANU/SC/0386/1968 : AIR 1969 SC 329). In R.N. Gosain v. Yashpal Dhir MANU/SC/0078/1993 : AIR 1993 SC 352, this Court has observed as under:

"10.Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."

24. This Court in Sri Babu Ram Alias Durga Prasad v. Sri Indra Pal Singh (Dead) by L.Rs. MANU/SC/0519/1998 : AIR 1998 SC 3021, and P.R. Deshpande v. Maruti Balram Haibatti MANU/SC/0491/1998 : AIR 1998 SC 2979, the Supreme Court has observed that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."

11. As noted above, these are disputed questions of fact which cannot be answered at the stage when the consideration is as to whether the plaint has to be registered as a suit and summons have to be issued to the defendants. As to whether the plaintiff has approbated or reprobated and if so, its effect is an exercise which can only be carried out after due consideration when the written statement/defence of the defendants are on record.

CS(OS) 687/2017 Page 8 of 10

12. In my opinion, at this stage, it cannot be said that the plaint does not disclose a cause of action or is barred by law. Summons have to be issued to the defendants.

13. Let the plaint be registered as suit. Issue summons to the defendants. Learned counsel for defendants No. 1 to 4 accepts notice. Written statement be filed within 30 days. Replication be filed within 30 days thereafter.

14. Issue summons to defendants No. 5 to 10 through ordinary process and speed post, returnable for 20.11.2019.

IA No. 6193/2019

For the reasons stated in the application, the delay in filing the application for impleadment of the LRs of defendant No. 8 is condoned.

The application stands disposed of.

Amended memo of parties is taken on record.

IA No.6192/2019

The application is filed by plaintiff No. 1 under Order 22 Rules 4 and 9 CPC to bring on record the legal representatives of defendant No. 8 and for setting aside of abatement of the suit against defendant No. 8.

It is stated that during the pendency of the present suit, it appears that defendant No. 8 expired on 16.11.2018. The plaintiff came to know about the factum of death of defendant No. 8 on or around 25.03.2019.

Learned senior counsel appearing for defendants No. 1 to 4 states on instructions that they have no objection to the application.

The application is allowed.

IA No. 6194/2019 (u/O 6 R 17 CPC) Issue notice.

Learned counsel for defendants No. 1 to 4 accepts notice.

CS(OS) 687/2017 Page 9 of 10

Reply be filed within four weeks.

Issue notice to the other defendants, returnable for 20.11.2019. IA No. 15402/2017(u/O 39 R 1 & 2 CPC), IA No. 15403/2017(u/O2 R 2 CPC) Issue notice.

Learned counsel for defendants No. 1 to 4 accepts notice. Reply be filed within four weeks.

Issue notice to the other defendants, returnable for 20.11.2019. IA No. 15404/2017 (exemption) Allowed subject to all just exceptions.

IA No. 15405/2017

For the reasons stated in the application, the delay in re-filing the suit is condoned.

The application stands disposed of.

JAYANT NATH, J AUGUST 13, 2019 rb CS(OS) 687/2017 Page 10 of 10

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