AI Structured Summary
Not yet generated for this judgment
Judgment
Paramjeet Singh, J.—Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 22.11.2012 passed by learned Civil Judge (Sr. Divn.), SAS, Nagar, Mohali whereby application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short the Code) filed by the petitioner-defendant has been dismissed. Parties hereinafter will be referred to as per their status in civil suit.
Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that the plaintiff through Major Surinder Singh filed suit for possession by way of specific performance of the contract dated 16.05.2008. Upon notice, the defendant put in appearance and filed written statement. During pendency of the suit, the defendant filed application under Order VII Rule 11 of the Code for rejection of plaint which has been dismissed vide impugned order dated 22.11.2012. Hence, this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned senior counsel for the petitioner has vehemently contended that no cause of action arose to the plaintiff to file the suit. In fact, there was no contract between the parties. As such, there is no privity of contract between the parties. There is no resolution passed by the respondent authorizing Major Surinder Singh through whom the present suit has been filed as is required u/s 291 of the Companies Act, 1956 (in short "the Act"). The suit filed by a person, who is not authorized by company is not maintainable. The learned senior counsel has made reference to Section 632 of the Act and relied upon State Bank of Travancore Vs. Kingston Computers (I) P. Ltd., and Nibro Ltd. Vs. National Insurance Co. Ltd., . The learned senior counsel has further contended that the plaint is liable to be rejected as by a clever drafting, an illusory cause of action has been created and it should be nipped in the bud at the first hearing by examining the parties under Order X of the Code. In this regard, reliance has been placed upon The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, . The learned senior counsel has further contended that on various occasions, directions were issued to the plaintiff to produce original document i.e. agreement in question, therefore, under Order VII Rule 14 of the Code, such document cannot be received in evidence and in absence of compliance of the aforesaid provisions, suit is not maintainable. In this regard, reliance has been placed on Som Parkash Bansal Vs. Managing Committee, Hindu Higher Secondary School and Another, .
On the other hand, learned counsel for the respondent has vehemently opposed the contentions of learned counsel for the petitioner and contended that the trial court has recorded a finding after considering the entire material and the pleadings. As such, the impugned order is a well-reasoned order and this Court is not required to interfere under Article 227 of the Constitution of India. The learned counsel has further contended that resolution authorizing Major Surinder Singh is with the civil suit and he is not having the same with him, at this stage.
I have considered the rival contentions of learned counsel for the parties.
Perusal of record shows that there is no specific averment in the pleadings with regard to the plaintiff being a company. There is no reference in the plaint as to who is authorized signatory and vide which resolution, he was authorized to file the present suit. Perusal of agreement to sell dated 16.05.2008 clearly indicates that it was in between the petitioner and Surinder Singh r/o House No. 2237, Phase-7, Mohali (Punjab). There is no reference to the plaintiff-Company. However, name of the plaintiff-company appears under the signatures at the place where party no. 2-buyer has been mentioned.
It is admitted fact that vide zimni orders dated 03,02.2012, 20.04.2012 and 24.05.2012, the trial Court directed the plaintiff to produce the agreement and the matter was further adjourned to 14.06.2012 for the same purpose. As per the contention of learned counsel for the petitioner, the said agreement has not been produced, as such the suit is not maintainable for non-compliance of provisions of Order VII Rule 14 read with Rule 18(1) of CPC.
All the contentions raised by the petitioner are legal and required to be appreciated by looking at the record available on the file of suit which is not before this Court. In view of above and without going into further merits of the case, the impugned order dated 22.11.2012 is modified to the extent that the trial Court shall frame the preliminary issues specifically with regard to the maintainability of the suit as well as with regard to the privity of contract and any other legal issue which can be decided even by leading evidence, not the detailed evidence. The trial Court is directed to pass appropriate order on the preliminary issues in accordance with law and thereafter shall proceed further.
The petitioner-defendant will be at liberty to raise other legal issues and may press for trying those issues as preliminary issues which do not require elaborate evidence.
Disposed of in the aforementioned terms.