TMI Blog2019 (7) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of 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 No.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 No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. These appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error - appeal allowed. - CIVIL APPEAL NO. ……….. OF 2019 (Arising out of SLP (C) No.31579 of 2018), (Arising out of SLP (C) No.30900 of 2018) (Arising out of SLP (C) No.30917 of 2018) (Arising out of SLP (C) No.698 of 2019) - - - Dated:- 1-7-2019 - A. M. Khanwilkar And Ajay Rastogi, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r their rights have been unilaterally jeopardised, to receive possession of the concerned flats earmarked in the allotment letter(s) and in respect of which the concerned appellant(s) have paid substantial contribution and the aggregate contribution of all the plaintiff(s) would be much more than the loan amount given by the bank to the builder in terms of the mortgage deed for the entire project. In this backdrop, the concerned appellant(s) had asked for reliefs not only against the builder but also concerned parties joined as defendant(s) in the suit(s) filed by them and including respondent No.1bank. 5. The reliefs claimed by the concerned appellant(s) in separate suit(s) filed by them are more or less similar. We may presently refer to the reliefs claimed in suit No.8 of 2017 filed by Padma Ashok Bhatt (appellant in civil appeal arising from SLP (C) No.30900 of 2018), the same read thus: The Plaintiff therefore prays: (a) That the Defendant No.1 be ordered and decreed to complete the Flat Nos.2302 and 2402 in the Project Orbit Haven situate at Darabshaw Lane, Nepean Sea Road, Mumbai 400036 as per the agreement being letter of confirmation dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of Flat Nos.2302 and 2402 at Orbit Haven, situated at Darabshaw Lane, Napeansea Road, Mumbai400036 and keep the same indemnified till the registration of the Agreement and Conveyance of the land in favour of the Society that may be formed; (f1) Without prejudice to the reliefs as claimed hereinabove and in the alternative and in the event this Hon ble Court comes to the conclusion that the specific performance of the suit flat cannot or ought not to be granted, in such an event, the Plaintiff is entitled for refund of the amount of ₹ 9,23,50,000/( Rupees Nine Crores Twenty Three Lakhs Fifty Thousand Only) paid by the Plaintiff to Defendant No.1 along with interest thereon @12% from the date of payment till repayment and cost. (f2) It be declared that the payment of the amount as stated in prayer (f1) stands validly charged on the land and in the flat Nos.2302 and 2402. (f3) In the event of failure to pay the amount as stated in prayer (f1), directions be issued for enforcement of the Plaintiff s charge upon the suit plot of land and Flat Nos.2302 and 2402. (f4) In addition to the amount as prayed in prayer (f1) the Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Interim and ad-interim in terms of prayers (c) to (g) be granted; (i) Cost of the suit be provided; (j) Such further and other reliefs as the nature and circumstances of the case may require be granted. 6. The respondent No.1bank (defendant No.15) appeared in the concerned suit and filed a notice of motion for identical relief, as claimed in notice of motion No.1206 of 2017 in suit No.8 of 2017. The relief claimed in the subject notice of motion(s) was limited to reject the plaint qua respondent No.1 herein, in exercise of powers under Order 7 Rule 11(d) of CPC on the ground that the suit(s) against the said respondent would be barred by provisions of Section 34 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 2002 Act ). The reliefs claimed in notice of motion No.1206 of 2017 in suit No.8 of 2017, read thus: (a) That the plaint in suit no.8 of 2017 be rejected qua the applicant/defendant No.15; (b) that pending the hearing and final disposal of the Notice of Motion the suit be stayed; (c) that pending the hearing and final disposal of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparate five appeals in the concerned suit. All these appeals came to be allowed by the Division Bench vide impugned judgment. 8. The impugned judgment has reversed the opinion of the learned Single Judge that bar under Section 34 will not come in the way of the appellants/plaintiffs. The Division Bench also opined that the averments in the concerned plaint do not spell out the case of fraud committed by the bank and/or the builder. As a result of which, the Court held that the suit(s) instituted by the appellant(s) did not come within the excepted category predicated in Mardia Chemicals Ltd. (supra) and thus the plaint against respondent No.1bank was not maintainable, being barred by Section 34 of the 2002 Act. 9. Feeling aggrieved, out of the five plaintiff(s) only four of them have chosen to file the present appeals. They have assailed every reason assigned by the Division Bench both on facts and the law. It is urged that the plaint cannot be rejected only against one of the defendant(s) but it could be rejected as a whole. To buttress this contention reliance has been placed on Sejal Glass Limited Vs. Navilan Merchants Private Limited (2018) 11 SCC 780. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief of damages claimed against the developers. 11. 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) of 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 Order 7 Rule 11 (d) of 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 the case of Sejal Glass Limited (supra) is directly on the point. In that case, an application was filed by the defendant(s) under Order 7 Rule 11(d) of 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 No.1company alone. The question considered by this Court was whether such a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dictum in the concerned judgment on the principle underlying the exposition in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation (2009) 8 SCC 646 to the effect that the DRT and also the appellate authority cannot pass a decree nor it is open to it to enter upon determination in respect of matters beyond the scope of power or jurisdiction endowed in terms of Section 17 of the 2002 Act. We leave all questions open to be decided afresh on its own merits in accordance with law. 15. A fortiori, these appeals must succeed on the sole ground that the principal relief claimed in the notice of motion filed by respondent No.1 to reject the plaint only qua the said respondent and which commended to the High Court, is replete with jurisdictional error. Such a relief cannot be entertained in exercise of power under Order 7 Rule 11(d) of CPC. That power is limited to rejection of the plaint as a whole or not at all. 16. In view of the above, these appeals are allowed. Resultantly, the impugned judgment and order of the Division Bench of the High Court in the concerned appeals are setaside and instead the order of the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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