✦ High Court of India · 11 Jul 2024

High Court · 2024

Case Details High Court of India · 11 Jul 2024

Court

High Court of India

Decided

11 Jul 2024

Bench

Not available

Length

2,120 words

Acts & Sections

Code of Civil Procedure Constitution of India Limitation Act 1963

Cited in this judgment

C.R.P. No. 4309 of 2022IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.07.2024CORAMTHE HONOURABLE MR. JUSTICE P.DHANABALC.R.P. No. 4309 of 2022andC.M.P. No. 22807 of 20221. Ramya D/o. Balasubramaniyam2. R.Balasbramaniyam S/o. E.S.Ramasamy ... Petitioners / Petitioners / DefendantsVs.M.JayabaskaranRep. by Power of AttorneyM.Selvi. ... Respondent / Respondent / Plaintiff PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 12.10.2022, passed in I.A. No. 4 of 2022 in O.S. No. 13 of 2022 on the file of the Special Court for Trial of Case under SC/ST (POA) Act, Namakkal.For Petitioners:Mr. B.Kumar, Senior Counselfor Mr. S.SenthilFor Respondent:Mr. J.Arun Prasad1/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 2022O R D E R This Civil Revision Petition has been preferred as against the order dated 12.10.2022 passed in I.A. No. 4 of 202 in O.S. No. 13 of 2022 on the file of the Special Court for Trial of Case under SC/ST(POA) Act, Namakkal, wherein the petitioners herein have filed petition before the Trial Court to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC' for short) and the same was dismissed.2. The brief averments of the petition before the Trial Court are as follows:-The petitioners are the defendants in the main suit and the respondent herein has filed the suit for declaration that the sale deed with regard to schedule A items 1 to 4 of suit properties in favour of 2nd petitioner is obtained by fraud and null and void and directing the 2nd petitioner to register the document in favour of the respondent/plaintiff and for granting permanent injunction restraining the petitioners/defendants from in any way alienating or encumbering the suit A schedule properties and to pay a sum of Rs.62,93,301/- with interest, which is the suit schedule property. The respondent/plaintiff has filed suit stating that he has given funds to the 2nd 2/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 2022petitioner/ 2nd defendant through his wife 1st petitioner/ 1st defendant. The 2nd defendant purchased A schedule property in his name and the respondent/plaintiff is the owner of the suit property. The respondent/plaintiff sent money in various dates through bank to buy a land in the name of respondent/plaintiff and he sent the money from 08.11.2011 to 04.10.2022 totally a sum of Rs.84,64,279/-. Based on the aforesaid amount, the A schedule property 1st item was purchased on 04.02.2011, A schedule 2nd item was purchased on 17.11.2011, A schedule 3rd item was purchased on 22.11.2011 and A schedule 4th item was purchased on 27.09.2012. Thereafter, divorce was granted to the respondent/plaintiff and the 1st petitioner/1st defendant. Further, the respondent/plaintiff believed that till getting divorce he was under impression that A schedule property was purchased in his name. But he has taken plea that the property was purchased in the name of 2nd petitioner/2nd defendant. Therefore, he pleaded the benami transactions. As per Section 4(1) of the Benami Transactions (Prohibition) Act, 1988, the suit is barred by law. Therefore the plaint is liable to be rejected under Order VII Rule 11(d) of the CPC. 3/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 20223. The brief averments of the counter filed by the respondent are as follows:-The petition is false and not maintainable either in law or on facts. The respondent/plaintiff is residing in Australia at Karratha. The 1st petitioner/defendant was his wife and the 2nd petitioner/defendant was his father-in-law. The marriage between the 1st petitioner/ defendant and the respondent/plaintiff was solemnized on 27.11.2009 and thereafter, they got divorce on 09.01.2019 before the Family Court of Western Australia. Before that, the respondent/plaintiff has sent an amount from his own earnings and savings through Common Wealth Bank towards the account of the 2nd petitioner / 2nd defendant by appointing him as a manager for the purpose of purchase of properties and estates in the name of the respondent/plaintiff and thereby, he sent Rs. 8,64,279/- from 08.11.2011 to 04.10.2012. The 2nd petitioner / 2nd defendant also told the respondent/plaintiff that lands have been purchased on various dates without mentioning name. The respondent/plaintiff also believed that the lands purchased in the name of respondent/planitiff. Thereafter only he came to know that the properties were not purchased in the name of respondent/plaintiff and the 2nd petitioner/2nd defendant has purchased the property in his own name. Therefore, the respondent/plaintiff filed suit. The respondent/plaintiff had faith in fiduciary 4/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 2022capacity on the name of the 2nd petitioner /2nd defendant, but he has breached his legal or equitable duty, trust and confidence of the respondent/plaintiff. The respondent/plaintiff is entitled to be benefited under Sections 17 and 18 of the Limitation Act, 1963. Therefore, the petition filed by the petitioners is liable to be dismissed.4. Before the Trial Court, no oral or documentary evidences adduced on either side and the Trial Court, after hearing both sides, dismissed the petition. Against which, the present Civil Revision Petition is filed.5. The learned counsel appearing for the petitioners would contend that the respondent/plaintiff has filed the suit for the relief of declaration of documents and recovery of money. Even according to the pleadings, he purchased the properties in the name of the 2nd petitioner/ 2nd defendant and thereby he admitted that there is benami transaction. Therefore the civil suit is barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988. Before the Trial court, the petitioners herein filed petition to reject the plaint but the Trial Court failed to consider the same and dismissed the petition. Therefore, the order passed by the Trial Court is liable to be set aside and the suit is liable to be rejected on the ground of barred by the Benami Transactions (Prohibition) Act, 1988.5/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 20226. Per contra, the learned counsel appearing for the respondent would contend that the respondent/plaintiff has filed suit for recovery of money and for declaration of sale deeds as null and void. The respondent/plaintiff was residing at Australia, at that time, he sent money to the 2nd petitioner/ 2nd defendant. The 1st petitioner/1st defendant is none other than the wife of the respondent/plaintiff. Thereafter, due to matrimonial dispute their marriage was dissolved on 09.01.2019 by the Family Court of Western Australia. The respondent/plaintiff thereafter only came to know that the properties purchased in the name of the 2nd petitioner/2nd defendant. In fact, the respondent/plaintiff sent money on various dates through bank to the 2nd petitioner / 2nd defendant for purchase of properties in the name of the respondent/plaintiff, but the 2nd petitioner / 2nd defendant purchased the properties only in his own name through the funds transferred by the respondent/plaintiff through his account. Therefore, he filed suit. There is no benami transaction and the 2nd petitioner/ 2nd defendant committed fraud and made the respondent/plaintiff to believe that the properties are purchased in his name. Therefore, the respondent/plaintiff filed suit before the Trial Court.7. This Court heard both sides and perused the materials available on record.6/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 20228. In this case, the respondent has filed the suit for recovery of money and to declare that the sale deeds in favour of 2nd defendant are void. The defendants in the main suit filed application under Order VII Rule 11 of the CPC to reject the plaint on the ground that is is barred by provisions of the Benami Transactions (Prohibition) Act, 1988. According to the petitioners, the respondent/plaintiff in the plaint pleaded that he sent money to purchase the property and the 2nd defendant purchased the properties in his name, thereby he pleaded benami transaction and the same is barred by law. According to the respondent/plaintiff, he has not pleaded about Benami transactions and he deposited money through bank to the 2nd petitioner/2nd defendant to purchase property in the name of the respondent/plaintiff but without purchasing the property in the name of respondent/plaintiff, the 2nd petitioner/2nd defendant purchased the properties in his name, thereby he filed the suit for declaration in respect of the sale deeds in favour of 2nd petitioner/2nd defendant and for recovery of money. The grounds raised in the petition are to be decided after full trial, but not at this stage. It is well settled law that while deciding the petition under Order VII Rule 11 of the CPC, the Court has to see only the plaint averments and the documents annexed with the plaint. On perusal of plaint averments, no grounds to attract the provisions of Order VII Rule 11 of CPC. Even as per the plaint, the 7/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 2022prayers are to declare the sale deeds as null and void and for recovery of money. It is well settled law that the plaint cannot be rejected in part and whole plaint only can be rejected.9. The Trial Court also after elaborate discussion, dismissed the petition that the plaint averments shows that the respondent/plaintiff reposing by and confidence over the 2nd petitioner / 2nd defendant who stood in a fiduciary capacity sent money to him to buy properties in the name of the respondent/plaintiff, but the 2nd petitioner / 2nd defendant had fraudulently purchased the lands in his own name. So, whether the 2nd petitioner / 2nd defendant stood in fiduciary capacity or not and whether he fraudulently brought the properties in his name instead of the name of respondent/plaintiff are all could be decided only after due trial based on the facts to be proved. The above said observations of the Trial Court is in accordance with law and there is no benami transactions pleaded as per the averments of the plaint.10. The learned counsel appearing for the petitioner relied on the judgment in Union of India -vs- Ganpati Deal Com Pvt Ltd. reported in 2023(3) SCC 315 BI. On a careful perusal of the judgment, it is seen that it will not be applicable to the present facts of the case. 8/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 202211. Per contra, the learned counsel appearing for the respondent relied on the judgments of the Hon'ble Supreme Court of India in Pawan Kumar -vs- Babulal (Since deceased) through LRs & Ors reported in 2019 (4) SCC 367, Pushpalata -vs- Vijay Kumar (dead) through LRs & Ors. reported in 2022 SCC Online SC 1152, Shakti Bhog Food Industries Ltd. -vs- Central Bank of India reported in 2020 (17) SCC 260 [3J], Sejal Glass Ltd. -vs- Navilan Merchants Pvt. Ltd. reported in 2018 (11) SCC 780 and Salim D.Agboatwala & Ors. -vs- Shamalji Oddhavji Thakkar reported in 2021 (17) SCC 100. On a careful perusal of the judgments, it is clear that when the matter comes within the purview of Section 4(3) of the Benami Transactions Act is an aspect which must be gone into on the strength of the evidence on record, going by the averments in the plaint, the question whether the plea raised by the appellant/party is under section 4 of the Act could not have been the subject matter of assessment at the stage when the application under Order VII Rule 11 of CPC. Further it is clear that the plaint as a whole alone can be rejected under Order VII Rule 11 and there is no provision in the CPC for the rejection of a plaint in a part. In the case on hand also, the suit is filed for declaration of sale deeds as null and void and also for recovery of money. Thereby it needs elaborate trial and the benami transaction could be decided after full trial. Therefore, the judgments submitted by the respondent are 9/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 2022squarely applicable to the present facts of the case.12. On a careful perusal of the plaint averments and the documents annexed with the plaint, it is seen that there are no grounds to reject the plaint as contended by the petitioners side. Therefore, the order passed by the Trial Court is in order and the petitioners are at liberty to agitate before the Trial Court by raising appropriate defence. Therefore, the order passed by the Trial Court is proper and there is no perversity or infirmity in the order passed by the Trial Court and it does not warrant interference. 13. In view of the aforesaid discussions, this Court is of the opinion that the Civil Revision Petition has no merits and deserves to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed. 11.07.2024Index: Yes/NoSpeaking order : Yes/NoNCC : Yes/Nopal10/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 2022ToThe Special Court for Trial of Case under SC/ST (POA) Act, Namakkal.11/12 https://www.mhc.tn.gov.in/judis C.R.P. No. 4309 of 2022P.DHANABAL , J., palC.R.P. No. 4309 of 202211.07.202412/12

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