Bombay High Court
Michael Gabriel - (Applicant) And 6 Ors vs Sheth Builders Pvt.Ltd on 5 November, 2020
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
17.ial.3375.2020.doc
dik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally
signed by
Dhanappa
INTERIM APPLICATION (L) NO. 3375 OF 2020
Dhanappa I. Koshti
I. Koshti Date:
2020.11.06
IN
SUIT NO. 3540 OF 2005
16:33:59
+0530
Micheal Gabriel ...Applicant
In the matter between
M/s Sheth Builders Pvt. Ltd. ...Plaintiff.
vs
Michael Gabriel & Ors. ...Defendants
Mr Shyam Diwani i/b Mrs Shweta Rathod for the applicant
/Defendant No.1.
Mr J.S.Kini and Ms. Sapna Krishnappa and Arathi Khanolkar for the
plaintiff.
CORAM : B. P. COLABAWALLA, J.
(Through Video Conferencing) 5th NOVEMBER, 2020.
P.C. :
1. The above Interim Application has been filed by the applicant (original defendant No.1) under the provisions of Order VII Rule 11 read with section 151 of the Code of Civil Procedure, 1908 (for short "CPC") seeking rejection of the plaint. The rejection of plaint is sought principally on two grounds:-
Pg 1 of 16
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(i) that the plaintiff is seeking specific performance of the Development Agreement and the General Power of Attorney dated 15th March, 2005 which have been validly and legally cancelled / revoked by the applicant/defendant No.1 vide his notice dated 23rd May, 2005. Further the applicant/defendant No.1 has also filed a suit in this Court bearing Suit No.1362 of 2008 seeking a declaration that the said Development Agreement, the General Power of Attorney and the alleged fabricated receipt of Rs.17,00,000/- are illegal, null and void and the same have already been cancelled/revoked by the applicant/defendant No.1. Since the revocation/ cancellation / termination of the Development Agreement and the General Power of Attorney dated 15th March, 2005 have not been challenged in the present suit, the same is not maintainable in the eyes of law. In other words, it was the argument of the applicant/defendant No.1 that present suit is not maintainable in view of the fact that the termination notice dated 23rd May, 2005 is not challenged by the plaintiff. In support of this proposition reliance is placed on a decision of the Supreme Court in the case of I.S. Sikandar (dead) by LRs. Vs. K. Subramani and Ors. [(2013)15 SCC 27];
and
(ii) that the plaintiff being a company incorporated under the provisions of the Companies Act, could not file the present suit without any person being specifically authorized to Pg 2 of 16
17.ial.3375.2020.doc institute the same. Without such authority, the suit is not maintainable.
2. On the aforesaid two grounds, it was submitted that the plaint be rejected under the provisions of Order VII Rule 11 of the CPC.
3. I have heard the learned advocate appearing on behalf of the applicant/defendant No.1 as well as the learned advocate appearing on behalf of the plaintiff. As far as ground (i) is concerned, namely, that there is no challenge to the termination notice dated 23rd May, 2005 and hence the plaint ought to be rejected, I find the same to be without any merit. I have gone through the plaint carefully. When it is read as a whole and more particularly paragraphs 20 to 26 therein, it is quite clear that the termination notice was never accepted by the plaintiff. In fact, the pleadings clearly show, and especially when read as a whole, that the termination notice dated 23rd May, 2005 was never accepted as a valid termination. Merely because there is no formal prayer seeking a declaration that the termination notice is bad-in-law, would not entitle the applicant/ defendant No.1 to seek rejection of the plaint, either under Order VII Rule 11 (a) or (d) of the CPC. Another important factor to note in this regard is that the applicant/ Pg 3 of 16
17.ial.3375.2020.doc defendant No.1 himself has filed a suit in this Court being Suit No.1362 of 2008 wherein the applicant has inter alia prayed for a declaration that the Development Agreement and the General Power of Attorney dated 15th March, 2005 are illegal, null and void and the same have already been cancelled/ revoked by the applicant. There is already an order passed by this Court on 25th September, 2018 in Notice of Motion No. 1154 of 2014 that the present suit is to be tried along with the suit filed by the applicant/defendant No.1, namely, Suit No.1362 of 2008. This being the factual position, I do not think that merely because no formal prayer seeking a declaration that the termination notice dated 23rd May, 2005 is bad in law, the plaint can be rejected as a whole. In this regard, one must examine the prayers in the plaint which read as under:-
"(a) Defendant Nos. 1 to 4 be ordered to specifically perform the Agreement (Exhibit "C" hereto) and transfer and convey unto the plaintiff the suit property;
(b) That in the alternative to prayer (a) above, and in the event of this Hon'ble Court holding that specific performance cannot or ought not be decreed, the defendant Nos.1 to 4 be ordered and decreed to pay to the plaintiff a sum of Rs.2,00,00,000/- (Rupees Two Crores only) together with interest at the rate of 24 per cent per annum from the date of filing of the suit till payment thereof as per the particulars annexed and marked as Exhibit "P" hereto;
(c) that it be decreed that the suit property, stands validly charged in favour of the plaintiff, to secure the payment of the amounts mentioned in prayer (b) above along with the costs of the suit;
(d) that in the event of defendant Nos.1 to 4 or any of them failing to pay to the plaintiff the amount decreed in prayer (b) above along with the cost of the suit, within such time, as may be decided in that behalf by Pg 4 of 16
17.ial.3375.2020.doc this Hon'ble Court the suit property be sold by and under the directions of this Hon'ble Court and the net sale proceeds thereof, be applied in or towards the satisfaction of the plaintiff's claim herein and that the plaintiff may have liberty to a personal decree against defendant Nos.1 to 4 for the deficiency;
(e) that for the purposes aforesaid all directions be given, orders passed, enquiries made and accounts taken, as may be necessary;
(f) that this Hon'ble Court do declare that defendant Nos.5 and 6 and 7 have no right of any nature in respect of the suit property;"
4. Even if I assume that it was necessary for the plaintiff to seek a formal declaration that the termination notice dated 23rd May, 2005 was bad in law, and the same has not been sought for in the present suit, even then, the plaintiff, at the highest would not be entitled to prayer clause (a). As far as the other prayers are concerned, the same would certainly survive even if prayer clause
(a) cannot be granted. This is for the simple reason that prayer clause (b) is a prayer for damages and prayer clause (c) is seeking a charge on the property which is the subject matter of the suit. It is an admitted position that the plaintiff has paid part consideration for the purchase of the suit property and would, therefore, to that extent, have a charge on the suit property as contemplated under Section 55(6)(b) of the Transfer of Property Act, 1882. If this be the position, then the plaint cannot be rejected under Order VII Rule 11 as it is now well settled by a catena of judgments of the Hon'ble Pg 5 of 16
17.ial.3375.2020.doc Supreme Court that the plaint has to be rejected as a whole and not in part.
5. In case of D. Ramachandran Vs R.V. Janakiraman and Ors., [(1999) 3 SCC 267] the Hon'ble Supreme Court has clearly opined that under Order VII Rule 11 (a) of the CPC the Court cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Under Order VII Rule 11 of the CPC there cannot be a partial rejection of the plaint. Paragraph 10 of this decision reads thus:-
"10. On the other hand, Rule 11 of Order 7 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 Rule. The application filed by the first respondent in OA No. 36 of 1997 is 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. Laying stress upon the provisions of Order 7 Rule 11(a), learned Senior Counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose 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 Order 7 Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7 Rule 11(a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487] .
Pg 6 of 16
17.ial.3375.2020.doc We are satisfied that the election petition in this case could not have been rejected in limine without a trial."
(emphasis supplied)
6. Similarly, in the case of Sejal Glass Limited Vs Navilan Merchants Pvt. Ltd. [(2018) 11 SCC 780], a similar view has been taken by the Supreme Court. In this decision the Supreme Court has clearly held that if the plaint survives against certain defendants and/or properties, Order VII Rule 11 of the CPC will have no application at all and the suit as a whole must proceed to trial. Paragraphs 4,5,6,7 and 8 of this decision are relevant for our purpose and reproduced hereunder:-
"4. It is settled law that the plaint as a whole alone can be rejected under Order 7 Rule 11. In Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., 1936 SCC OnLine Lah 337 : AIR 1936 Lah 1021] , the High Court held that a note recorded by the trial court did not amount to a rejection of the plaint as a whole, as contemplated by the CPC, and, therefore, rejected a revision petition in the following terms: (AIR p. 1022 para 4 : SCC OnLine Lah para 4) "4. ... There is no provision in the Civil Procedure Code for the rejection of a plaint in part, and the note recorded by the trial court does not, therefore, amount to the rejection of the plaint as contemplated in the Civil Procedure Code."
5. Similarly, in Bansi Lal v. Som Parkash [Bansi Lal v. Som Parkash, AIR 1952 Punj 38] , the High Court held: (AIR p. 39, para 7) "7. But the real question which arises in this appeal is whether there can be a partial rejection of the plaint. Mr Chiranjiva Lal Aggarwala submits that a plaint can either be rejected as a whole or not at all, and he has relied on a statement of the law given in Mulla's Civil Procedure Code at p. 612 where it is Pg 7 of 16
17.ial.3375.2020.doc stated: "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. Jyotis Swarupa [Raghubans Puri v. Jyotis Swarupa, ILR (1906-07) 29 All 325] , Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, 1930 SCC OnLine Mad 123 : ILR 54 Mad 416 : AIR 1931 Mad 175] and Maqsud Ahmad v. Mathra Datt & Co. [Maqsud Ahmad v. Mathra Datt & Co., 1936 SCC OnLine Lah 337 : AIR 1936 Lah 1021] In reply to this argument Mr Puri has submitted that it is really five suits which had all been combined in one and therefore in this particular case the rejection of a part was nothing more than rejection of three plaints. But the suit was brought on one plaint and not five suits were brought. The law does not change merely because the plaintiff chooses in one suit to combine several causes of action against several defendants which the law allows him. It still remains one plaint and therefore rejection of the plaint must be as a whole and not as to a part. 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 part. This appeal which I am treating as a petition for revision must therefore be allowed and the rule made absolute, and I order accordingly."
6. In Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, 1930 SCC OnLine Mad 123 : ILR 54 Mad 416 : AIR 1931 Mad 175] , the Madras High Court held: (AIR p. 176 :
SCC OnLine Mad) "... Referring to Section 54 of the old Civil Procedure Code, the learned Judges state that that section only provides for the rejection of a plaint in the event of any matters specified in that section not being complied with and it does not justify the rejection of any particular portion of a plaint. Section 54 now corresponds to Order 7 Rule 11 of the Civil Procedure Code. The plain meaning of that rule seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint. Non- compliance with the requisites of Section 80 of the Civil Procedure Code, was taken to be a ground covered by clause Pg 8 of 16
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(d) of Rule 11, abovereferred to. Even if it should be taken that that clause does not strictly apply to the present case, I must hold that the suits are liable to dismissal on account of non-compliance with Section 80 of the Civil Procedure Code."
It was further found that if the suit was dismissed for want of notice against the Government under Section 80 CPC, it cannot be allowed to proceed against the other defendants for the reason that the Government's right to resume inam lands, on the facts of that case, stands unaffected, and that being so, the plaintiff's claim to recover possession of such lands from other defendants would also fall to the ground for the simple reason that they have no right then to resume those inams. It was, therefore, held on the peculiar facts of that case that for the reasons given the suit would fail as a whole.
7. However, in Kalapu Pala Subrahmanayam v. Tiguti Venkata Peddiraju [Kalapu Pala Subrahmanayam v. Tiguti Venkata Peddiraju, 1970 SCC OnLine AP 30 : AIR 1971 AP 313] a Single Judge referred to Venkata Rangiah Appa Rao v. Secy. of State [Venkata Rangiah Appa Rao v. Secy. of State, 1930 SCC OnLine Mad 123 : ILR 54 Mad 416 : AIR 1931 Mad 175] , and then held that the suit was barred by time in respect of only certain items of property and not in respect of others. Despite this, it was held that since the plaint as a whole should have been rejected, the baby was thrown out with the bathwater, and the entirety of the plaint and not merely the properties against which the suit could not proceed (as it was barred by limitation), was rejected.
8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order 7 Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial."
(emphasis supplied) Pg 9 of 16
17.ial.3375.2020.doc
7. The above decision was again followed by the Supreme Court in the case of Madhav Prasad Aggarwal and Anr Vs. Axis Bank Ltd. and Anr. [(2019) 7 SCC 158]. The Supreme Court once again reiterated that the plaint as presented must proceed as a whole or can be rejected as a whole, but not in part. Paragraphs 10 to 12 of this decision reads thus :-
"10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC. Indeed, the learned Single Judge rejected this objection raised by the appellant(s) by relying on the decision of the Division Bench of the same High Court. However, we find that the decision of this Court in Sejal Glass Ltd. [Sejal Glass Ltd. v. Navilan Merchants (P) Ltd., (2018) 11 SCC 780 : (2018) 5 SCC (Civ) 256] is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) CPC stating that the plaint disclosed no cause of action. The civil court held that the plaint is to be bifurcated as it did not disclose any cause of action against the Director's Defendant(s) 2 to 4 therein. On that basis, the High Court had opined that the suit can continue against Defendant 1 company alone. The question considered by this Court was whether such a course is open to the civil court in exercise of powers under Order 7 Rule 11(d) CPC. The Court answered the said question in the negative by adverting to several decisions on the point which had consistently held that the plaint can either be rejected as a whole or not at all. The Court held that it is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others. In no uncertain terms the Court has held that if the plaint survives against certain defendant(s) and/or properties, Order 7 Rule 11(d) CPC will Pg 10 of 16
17.ial.3375.2020.doc have no application at all, and the suit as a whole must then proceed to trial.
11. In view of this settled legal position we may now turn to the nature of reliefs claimed by Respondent 1 in the notice of motion considered by the Single Judge in the first instance and then the Division Bench of the High Court of Bombay. The principal or singular substantive relief is to reject the plaint only qua the applicant, Respondent 1 herein. No more and no less.
12. Indubitably, the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non- compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by Respondent 1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against Respondent 1 in the suit concerned is barred by Section 34 of the 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly."
(emphasis supplied)
8. Looking at the clear enunciation of the law on this subject, I am clearly of the view that even assuming for the sake of argument that no specific performance can be granted because the termination notice dated 23rd May, 2005 was not challenged, the plaint would not be liable to be rejected as a whole. At the highest, then, the plaintiff may not be entitled to the relief of specific performance. But that does Pg 11 of 16
17.ial.3375.2020.doc not mean that the plaint as a whole could be rejected, as certainly the other reliefs claimed in the plaint would survive. This being the position, the reliance placed by the learned advocate for the applicant/defendant No.1 on the decision of the Supreme Court in the case of I.S. Sikandar (dead) by LRs.(supra) would be of no assistance to contend that the plaint ought to rejected under Order VII Rule 11 of the CPC. I therefore have no hesitation in rejecting ground (i) as canvassed by the applicant/defendant No.1
9. As far as ground (ii) is concerned, namely, that there is no Board Resolution authorizing Mr. Alpesh Sheth to institute the present suit, I find this argument also to be without any merit. Firstly, I must mention that if a suit is originally filed by a company without a Board Resolution, the same is not fatal and is certainly a curable defect. In the facts of the present case, though the suit was filed in the year 2005, the plaintiff company has passed a Board Resolution on 26th July, 2018 inter alia resolving that Mr. Alpesh Sheth (who has signed and verified the plaint) is authorized to sign, verify, declare and execute all necessary legal pleadings, affidavits, plaint, written statement, counter-claim, petitions, applications, notice of lispendence, and all other legal proceedings, and to prosecute and defend the company. Another Board Resolution has Pg 12 of 16
17.ial.3375.2020.doc also been passed on 20th October, 2020 which records that the filing of the present suit (and which is signed and verified by Mr. Alpesh Sheth), is endorsed/permitted, ratified and accepted by the plaintiff company. Reading these two Resolutions it is clear that this defect, if at all, has been duly cured by passing the aforesaid Board Resolutions.
10. I must mention that the Honourable Supreme Court in the case of United Bank of India Vs. Naresh Kumar and Ors [(1996) 6 SCC 660] has clearly held that the plaint can be signed and verified by a person duly authorized by the company and the company may expressly authorize one of its officers to sign the plaint or may ratify expressly or impliedly the act of signing. It has further held that the Code of Civil Procedure, 1908 itself provides under Order 29 Rule 1 that even in the absence of any formal letter of authority or Power of Attorney having been executed, a person referred to in Rule 1 of Order 29, namely, the Secretary or any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case can sign and verify the plaint. The relevant portion of this decision reads thus:-
"9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects Pg 13 of 16
17.ial.3375.2020.doc which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.
10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.
11. The courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant.
Pg 14 of 16
17.ial.3375.2020.doc In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant- Bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the courts below were still unable to come to this conclusion, then either of the appellate courts ought to have exercised their jurisdiction under Order 41 Rule 27(1)(b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a court in order to ensure that injustice is not done by rejection of a genuine claim."
(emphasis supplied)
11. In the facts of the present case, the plaint has in fact been signed and verified on behalf of the plaintiff company by Mr Alpesh Sheth who is a Director thereof. This apart, Mr. Alpesh Sheth has been expressly authorized by the two Resolutions referred to earlier to file the present suit for and on behalf of the plaintiff company. This being the case, I do not think that even this argument can be canvassed by the applicant/ defendant No.1 to reject the plaint under the provisions of Order VII Rule 11 of the CPC.
12. In fact, a similar view has been taken by another learned single Judge of this Court in the case of Alcon Electronics Pvt. Ltd. Vs. Celem S.A. [2015 (1) Mh.L.J. 852]. Paragraph 30 of this decision reads thus :-
Pg 15 of 16
17.ial.3375.2020.doc "30. It is not the case of the respondent that the suit is filed by the said Mr. Siddharth Sachdev. The submission of the respondent is that though the suit was filed by the company, such suit could not have been filed without specific resolution. The plaint is verified by the said Mr. Siddharth Sachdev. It is not in dispute that the said Mr. Siddharth Sachdev was a director of the plaintiff company when the suit was lodged against the defendant. The authority of Mr. Siddharth Sachdev to file such suit has been already confirmed by the plaintiff respondent under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908. In my view the board of directors of the said company having confirmed the authority in favour of Mr. Siddharth Sachdev to file such suit against the respondent, plea of the defendant could not have been accepted by the trial Court. Be that as it may, since there is no specific bar under any provisions of the law from filing such suit without any specific resolution to file a suit against a particular party, in my view application under Order 7, Rule 11(d) itself is not maintainable. In my view the said provision can be invoked only when the suit appears from the statement in the plaint to be barred by any law. While dealing with any such application under Order7, Rule 11, Court has to consider the averments made in the plaint. A perusal of the plaint does not indicate that any statement made therein would indicate that the suit was barred by any law. In my view the learned trial Judge has thus committed a patent illegality in entertaining such application which is not maintainable under Order7, Rule 11(d) of the Code of Civil Procedure, 1908 at all."
13. In view of the foregoing discussion, I find no merit in any of the arguments canvassed on behalf of the applicant/defendant No.1. I find that the Interim Application is devoid of any merit. It is accordingly dismissed. However, in the facts and circumstances of the case there shall be no order as to costs.
(B. P. COLABAWALLA ,J.) Pg 16 of 16