Full Text
HIGH COURT OF DELHI
Date of Decision: 21.09.2023.
GREENLAM INDUSTRIES LIMITED ..... Plaintiff
Through: Mr. Aayush Agarwala, Mr. Samrat Sengupta, Mr. Parag Chaturvedi and
Mr. Sourav Dutta, Advs.
Through: Ms. Hrishika Pandit, Adv. for D-1.
JUDGMENT
1. This is an application filed by the defendant no. 1 under Order VII Rule 11 CPC seeking rejection of the plaint as being barred by law.
2. At the very outset it may be noted that the plaintiff has approached this Court seeking specific performance of the agreement dated 16.03.2005 and a consequential direction to the defendants to register the suit property in its name. After summons were issued on 12.07.2022, the defendants filed their written statements and issues were framed on 01.03.2023. It is thereafter that the present application seeking rejection of the plaint has been filed.
3. Before dealing with the rival submissions of the parties, the brief factual matrix as necessary for the adjudication of the present application may be noted.
4. M/s Greenply Industries Limited was demerged into M/s Greenlam Industries Ltd. i.e., the plaintiff, pursuant to the order dated 31.10.2014 of the High Court of Guwahati. While the plaintiff is engaged in the business of manufacturing and marketing of decorative laminates, decorative veneers, engineered wooden floors, engineered doors, leafs and allied products, the defendant no.1 is engaged in the business of construction. It is the plaintiff‟s case that on a representation made by the defendant no.1 that on the basis of agreements entered into with the owners of plot no. 23 situated at Barakhamba Road, New Delhi, it was entitled to sell, transfer, convey or lease out specific portions of a commercial building, proposed to be built on the aforementioned plot, the plaintiff applied for an office space therein. On 16.03.2005, the parties entered into an „agreement to sell‟ for a sale consideration of Rs. 2,59,60,000/-, which consideration stood paid to the defendant by 15.03.2005 itself. It is further claimed that besides the sale consideration, a payment towards stamp duty was also made to the defendant no. 1 and consequently the possession of the suit property was handed over to the plaintiff.
5. It is the further case of the plaintiff that under the agreement dated 16.03.2005, the defendant no.1 was under an obligation to get the agreement dated 15.03.2005 registered in favour of Greenply Industries Limited and now the plaintiff. It is averred that since under the agreement no time was fixed for registration of the same, repeated requests were made to the defendants to get the same registered at the earliest. However when these efforts of the plaintiff failed, it was compelled to approach this Court in the year 2018 by way of suit being CS(COMM) 1232/2018 titled as "Greenlam Industries Limited Vis SDB Infrastructure Private Limited & Anr.” which came up for consideration before a Coordinate Bench on 15.11.2018.
6. The Coordinate Bench after considering the prayers sought in the plaint was of the opinion that since the plaintiff had an alternate efficacious remedy to approach the competent authority under the „Delhi Apartment Ownership‟ Act, 1986 („the Act‟), which remedy had not been availed by the plaintiff, the suit was not maintainable at that stage. Consequently, the Court on 04.12.2018 while allowing the plaintiff to withdraw the suit, granted liberty to the plaintiff to approach this Court on the same cause of action if the need arises. It is the plaintiff‟s further case that after withdrawing the aforesaid suit, repeated representations were made to the competent authority under the Act. Since the defendant no.1 still did not get the agreement registered, the plaintiff has been once again compelled to approach this Court in terms of the liberty granted by the Court on 04.12.2018.
7. In support of the application, learned counsel for defendant no. 1 has raised three grounds. The first and foremost being that the suit is barred under Order I Rule 10 CPC as the plaintiff in the suit had no privity of contract with the defendant no.1. The second being that the suit was barred by limitation and the final ground being that the suit was also barred by res judicata.
8. Before dealing with the submissions of the parties it may be apposite to note the scope of Order VII Rule 11 CPC. It is well settled that while dealing with an application under Order VII Rule 11 CPC, the Court must consider the pleadings in the plaint alone and read the plaint as a whole; the written statement filed by the defendant is wholly irrelevant at that stage. In this regard, it may be useful to refer to para 7 of Mandanuri Sri Rama Chandra Murthy vs. Syed Jalal, (2017) 13 SCC 174, wherein the principles governing the exercise of power under Order VII Rule 11 CPC were succinctly summarised by the Apex Court as under:
9. Having noted the parameters laid down by the Apex Court for exercise of jurisdiction by this Court under Order VII Rule 11 CPC, I may now deal with the rival submissions of the parties.
10. In support of her first plea that the suit is liable to be rejected on the ground of non-joinder of the necessary party under Order I Rule 10 CPC, learned counsel for the applicant submits that the plaintiff, not being a party to the agreement dated 16.03.2005, cannot seek specific performance thereof. The agreement was entered into between the defendant no. 1 and one M/s. Greenply Industries Ltd and therefore the plaintiff being a third party to the agreement has no privity of contract with the defendant no.1. She, therefore, contends that the suit is liable to be dismissed on this ground alone.
11. In response, learned counsel for the plaintiff submits that the defendant is well aware that the M/s. Greenply Industries Ltd and the plaintiff are the same entity. She submits that M/s. Greenply Industries Ltd, with whom the agreement was entered into, stands demerged in the plaintiff company pursuant to an order passed by the High Court of Guwahati on 31.10.2014. The plaintiff having stepped into the shoes of M/s. Greenply Industries Ltd, it cannot be said that the suit is liable to be dismissed for nonjoinder or mis-joinder of parties. Furthermore, even the earlier suit being CS(COMM) 1232/2018, wherein liberty was granted to the plaintiff to again approach the Court, was also filed under the same name i.e M/s. Greenlam Industries Ltd. He therefore contends that the suit as filed by the plaintiff is maintainable.
12. Even though taking into account that the defendant no.2 was not a party to the agreement dated 16.03.2005, this plea of the applicant that the suit is barred by Order I Rule 10 CPC appears to be attractive on the first blush, however upon a perusal of the order passed on 31.10.2014 by the High Court of Guwahati the said plea has to be rejected. It may be apposite to note para 2 of the plaint wherein the plaintiff has specifically averred that “M/s. Greenply Industries Ltd” was demerged into “Greenlam Industries Limited” in the year 2014. The said para reads as under- “2. By an order dated 3rd October, 2014 passed by the High Court at Guwahati the Decorative Business Division of Greenply Industries Limited has demerged into Greenlam Industries Limited being the Plaintiff herein together with all the aspects and liabilities. Thus, the right, title and interest in respect of the property presently vests with the Plaintiff. A copy of the order dated 3rd October, 2014 passed by the Hon'ble High Court of Guwahati is annexed hereto and marked as DOCUMENT- P/l. “
13. Furthermore, the earlier suit being CS(COMM) 1232/2018 on which reliance is being sought to be placed by the learned counsel for the applicant, was also filed in the name of Greenlam Industries Limited. I, therefore, find no merit in this plea of the defendant no. 1/ applicant.
14. Now coming to the second plea of the applicant. Learned counsel for the applicant vehemently submits that suit having been filed after 17 years from the date of execution of the agreement is grossly barred by limitation. She contends that as per Article 54 of the Limitation Act, a suit for specific performance of a contract is required to be filed within three years of the date fixed for its performance. As the „agreement to sell‟, of which specific performance has been sought by the plaintiff was executed on 16.03.2005, the present suit having been filed in 2022, would be hit by Article 54 of the Limitation Act. She, therefore, submits that the plaint ought to be rejected on the ground of limitation.
15. On this plea of the learned counsel for the applicant, learned counsel for the plaintiff at the outset submits that the plaintiff has approached this Court on the basis of the liberty granted vide order dated 04.12.2018 passed in CS(COMM) 1232/2018 and therefore it cannot be said that the suit is barred by limitation. He contends that even otherwise, as the agreement in the present case does not fix any date for its performance, the period of limitation as provided under Article 54 of the Limitation Act would commence only from the date of refusal of performance by the defendant.
16. Having perused the plaint, I am unable to agree with the learned counsel for the applicant even on this count. A bare perusal of the plaint shows that the plaintiff has clearly averred that no fixed date was specified in the „agreement to sell‟ for the execution of the sale documents in favour of the plaintiff and it is only after 2016, when the defendant virtually refused to get the agreement registered in favour of the plaintiff, that it was compelled to approach this Court in the year 2018 by way of CS(COMM) 1232/2018. The plaintiff had withdrawn the said suit with liberty to again approach this Court on the same cause of action if the needs so arises.
17. In these circumstances, coupled with the orders passed by the Apex Court in Suo Moto Writ Petition (Civil) No.3/2020 whereby the period between 16.03.2020 and 28.02.2022 is required to be excluded for computing limitation, it cannot, on the basis of the averments made in the plaint, which alone have to be considered at this stage for deciding an application under Order VII Rule 11, be said at this stage that the suit is barred by limitation.
18. Learned counsel for the applicant finally submits that the suit is also barred by res judicata as the plaintiff had earlier filed a similar suit seeking the same relief, which suit was withdrawn by them. It is therefore urged that the plaintiff having withdrawn the suit, could not have approached this Court again for the same relief. She submits that the plaintiff having chosen to withdraw the suit with liberty to approach the competent authority under the Act, cannot be permitted to now, once again, seek the same relief as was sought in the earlier suit.
19. On the other hand, learned counsel for the plaintiff submits that the plaintiff having been specifically granted liberty to approach this Court on the same cause of action, is well within its rights to seek the reliefs sought by it in the plaint. When the earlier suit was withdrawn only subject to a liberty to again approach this Court on the same cause of action, it cannot be said that the suit is barred by res judicata.
20. Having perused the order dated 04.12.2018 passed in CS(COMM)1232/2018, I am of the view that this plea of the applicant that the suit is barred by res judicata needs to be noted only to be rejected. Even a cursory reading of the order dated 04.12.2018 shows that the plaintiff was permitted to withdraw its earlier suit with a specific liberty to the plaintiff to again approach the Court on the same cause of action, if the need so arises. In the light of the specific liberty granted by this Court to the plaintiff, I fail to appreciate as to how the suit can be said to be barred by res judicata.
21. For the aforesaid reasons, I am of the considered view that none of the grounds raised by applicant fall within the ambit of the limited jurisdiction under Order VII Rule 11 CPC. The application being meritless is dismissed with no order as to costs.
22. Since the plaintiff has already filed its affidavits of evidence, the matter be listed before the learned Joint Registrar (Judicial) on the date already fixed for cross examination of the plaintiff‟s witnesses, after completion whereof the defendants will be granted four weeks‟ time to file their affidavits of evidence.
23. List before the learned Joint Registrar on the date already fixed.
REKHA PALLI (JUDGE) SEPTEMBER 21, 2023