The State's title suit concerning land sold in a DRT auction survived rejection of plaint. The Court dismissed the purchaser's revision, upheld civil-court jurisdiction over the title claim, and held that res judicata and limitation required trial. It requested expedited disposal on the evidence, uninfluenced by its order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 23rd OF FEBRUARY, 2023
CIVIL REVISION No. 396 of 2021
BETWEEN:-
1. M/S ANJNA CONSTRUCTION THR. PARTNER UDAYLAL S/O BHERULAL KESUNDA TEH. CHOTI SADRI (RAJASTHAN)
THROUGH PARTNER
A. UDAYLAL S/O BHERULAL, JATI-ANJANA, VYASK, R/O- KESUNDA, TEHSIL CHOTI SADRI, DISTRICT PRATAPGARH, (RAJASTHAN)
B. MANOHARLAL S/O BHERULAL JATIANJANA, VYASK, R/O- KESUNDA, TEHSIL CHOTI SADRI, DISTRICT PRATAPGARH, (RAJASTHAN) THROUGH- AUTHORISED SIGNATORY, SANJAY MATHUR S/O LATE SAJJAN RAM MATHUR, AGED ABOUT 52 YEARS, OCCUPATION-SERVICE
.....PETITIONER
(BY SHRI D.S. PAANWAR, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH COLLECTOR / DISTRICT MAGISTRATE COLLECTOR OFFICE MANDSAUR (MADHYA PRADESH)
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2. CENTRAL BANK OF INDIA THR BRANCH MANAGER MHOW NEEMUCH ROAD, NAI AABADI, MANDSAUR (MADHYA PRADESH)
3. THE JIWAJIRAO SUGAR COMPANY LTD. THR OFFICIAL LIQUIDATOR 106, SILVER SANCHORA, 8/2, RAVINDRANATH TAGORE MARG, FIRST FLOOR (MADHYA PRADESH)
4. OFFICAL LIQUIDATOR OF THE JIWAJIRAO SUGAR COMPANY LTD. DALAUDA FIRST FLOOR, OLD C.I.A. BUILDING, OPPOSITE G.P.O. RESIDENCY AREA INDORE (MADHYA PRADESH)
5. RECOVERY OFFICER DEBTS RECOVERY TRIBUNAL 797-H, SECOND FLOOR, SHANTI KUNJ SOUTH CIVIL LINE, JABALPUR (MADHYA PRADESH)
6. MAHAVEER PRASAD AGRAWAL M/S KISHANLAL AND SONS UDYOG PVT. LTD. 10, CIVIL ROAD, KOLKATA (WEST BENGAL) (WEST BENGAL)
7. CHAIRMAN AND MANAGING DIRECTOR CENTRAL BANK OF INDIA CENTRAL OFFICE, CHANDRAMUKHY, NARIMAN POINT MUMBAI MAHARASTRA (MAHARASHTRA)
.....RESPONDENTS
(BY SHRI VAIBHAV BHAGWAT, GOVT. ADVOCATE FOR THE RES. No.1/STATE & SMT. SWATI MEHTA, ADVOCATE FOR THE OFFICIAL LIQUIDATOR)
Reserved for orders : 23.02.2023 Passed on : 11.04.2023
This revision coming on for orders this day, the court passed the following:
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ORDER
1] This Civil Revision has been filed by the petitioner/defendant No.1 under Section 115 of the Code of Civil Procedure, against the order dated 10.08.2021, passed by the IVth Additional District Judge, Mandsaur in Civil Suit No.170-A/2018, whereby the petitioners' application filed under Order 7 Rule 11 of CPC has been rejected. 2] The case of the plaintiff/respondent No.1 the State of M.P. is that the respondent No.3/ M/s Jiwajirao Sugar Company Ltd. is a company under liquidation, pursuant to the winding up order dated 31.01.2003, passed by this Court in Company Petition No.25/2001. Subsequently, the assets of the respondent No.3/Company were put to auction by the respondent No.5/Recovery Officer, Debt Recovery Tribunal (DRT), Jabalpur in pursuance of the order dated 04.09.2006, passed by this Court wherein, the petitioner was declared as a successful purchaser of the suit land of the company under liquidator. The entire amount has also been deposited by the petitioner with the recovery officer of the DRT, Jabalpur, however, the State Government has raised objections regarding sale of land by filing I.A.No.862/2007 before this Court in Company Petition No. 25/2001, which was also disposed of by this Court vide its order dated 16.03.2009, directing the State Government to raise the objections before the DRT. And, thereafter, the objections filed by the State Government before the DRT were also rejected vide its order dated 10.2.2010, and subsequently the Recovery Officer also issued Sale Certificate on
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17.2.2010, in favour of the petitioner on payment of Stamp Duty, as per rules.
3] The DRT, Jabalpur has also passed orders on 26.4.2013 and 04.6.2013, directing the Official Liquidator to hand over the possession of auctioned property to the petitioner. An application I.A.No.4126/2013 has also filed by the petitioner in Company Petition No.25/2001 for obtaining the possession of the land, which was also allowed by this Court vide order dated 04.12.2013.
It was further the case of the plaintiff that prior to these proceedings, the assets of the Company (under liquidation) were also put to auction vide judgement dated 04.09.2006, and the Central Bank of India initiated execution proceedings against Jiwajirao Sugar Company Ltd. pursuant to the decrees passed in favour of the Central Bank of India in the following recovery suits:-
| Suit No. | Transfer Application (T.A.) No. |
Date of Decree and amount (Rs.) |
|---|---|---|
| Civil Suit | 168/1998 | Decreed dated 05.04.2002 for |
| No.20-B/1995 | Rs.3,88,38,512,00 with 19.75% interest | |
| Civil Suit | 169/1998 | Decreed dated 05.4.2002 for |
| No.21-B/1995 | Rs.2,64,42,607.00 with 19.75% interest | |
| Civil Suit | 170/1998 | Decreed dated 05.4.2002 for |
| No.22-B/1995 | Rs.1,13,76,023.00 with 19.75% interest |
4] The case of the petitioner/defendant is that in the said Decrees, the State Government has been held jointly and severally liable to pay decretal amounts as being party to the said suits filed for recovery. The aforesaid Decrees have been challenged by the State Government/plaintiff in Appeals No.333/2003 and 334/2003 before
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the Debt Recovery Appellate Tribunal (DRAT). However, the appeals were dismissed vide judgement dated 10.7.2006, which has not been challenged by the State any further.
5] In the year 2013, the State Government also filed the Civil Suit No.1-A/2013 for declaration in respect of land purchased by the petitioner in auction, before District Judge Mandsaur, which was also dismissed vide order dated 27.4.2017 on the ground that no permission of the Company Court has been obtained. And, thereafter the State Government filed an application I.A.No.7044/2016 in Company Petition No.25/2001, seeking permission to file Civil Suit under Section 446 of the Companies Act, which has been dismissed by this Court vide order dated 05.09.2017. The aforesaid order dated 05.9.2017 passed by this Court was challenged by the respondent/State in Company Appeal No.03/2017 before the Division Bench of this Court, which was allowed by the Division Bench vide order dated 20.4.2018. A review petition bearing R.P. No.865/2019 filed by the petitioner in respect of the said order was dismissed by the Division Bench vide order dated 18.2.2019. Thereafter, the petitioner has challenged the order of the Division Bench of this Court and the order passed in review petition, before the Hon'ble Supreme Court by filing S.L.P.(C)- Diary No.22678 of 2019 which is still pending.
6] In the meantime, the petitioner has also filed an application -I.A. No.4545/2017 for carrying out mutation of the suit land in favour of the petitioner's name, which was allowed by this Court vide
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order dated 11.12.2017.
7] The aforesaid order was again challenged by the respondent /State Government by filing Company Appeal No.02/2018, which has also been dismissed by the Division Bench of this Court vide order dated 08.01.2019. And, the SLP No.4493/2019 preferred before the Supreme Court by the State Government against the said order is still pending.
8] In the meanwhile, the State Government preferred the present Civil Suit No.170-A/2018 before the Third Additional Sessions Judge, Mandsaur, seeking the following reliefs :-8
“8. ;g fd oknh fuEu lgk;rk pkgrk gS%&
(A) ;g fd oknh ds i{k esa bl vk'k; dh ?kks"k.kkRed vkKfIr iznku dh tkosa fd okni= pj.k la[;k 01 ,d esa of.kZr ^^fopkjk/khu Hkwfe;ksa** oknh ds LokfeRo dh gSA (B)
;g fd oknh ds i{k esa o izfroknhx.k ds fo:) ;g ? kks"k.kkRed vkKfIr iznku dh tkosa fd ^^fopkjk/khu Hkwfe;kW** tks fd oknh ds LokfeRo dh gS] oknh }kjk izfroknh Øekad 03 rhu dks 'kqxj dkj[kkuk LFkkfir djus vkSj mlds dk;e jgus rd iV~Vs ij nh xbZ Fkh vkSj izfroknh Øekad 03 rhu }kjk izfroknh Øekad 02 nks ls tks _.k fy;k Fkk] izfroknh Øekad 02 nks ls izfroknh Øekad 03 rhu ^^nykSnk 'kqxj fey** us tks _.k fy;k gS] mlesa ls oknh dks ek= :i;k 33-43 yk[k v{kjh rSrhl yk[k f=;kfyl gtkj :i;k ds fy, gh mRrjnk;h Bgjk;k tk
ldrk gSA Qyr% Mh-vkj-Vh- tcyiqj e-iz- }kjk izdj.k Øekad 34@2010 esa ikfjr vkns'k fnukad 10-02-2010 ds ikyu esa
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iznRr fd;s lsy lfVZfQdsV Øekad 07@2010 yxk;r 11@2010 fnukad 17-02-2010 oknh ij cU/kudkjh ugha gSA (C)
;g fd oknh ds i{k esa ;g Hkh ?kks"k.kkRed vkKfIr iznku dh tkosa fd izfroknh Øekad 03 rhu }kjk izfroknh Øekad 02 nks ls tks _.k fy;k x;k gS] mldk dksbZ Hkkj ^^fopkjk/khu Hkwfe;ksa** ij ugha gS vkSj u rks izfroknh Øekad 02 nks ds _.k isVs ^^fopkjk/khu Hkwfe;ksa** dks Hkkfjr fd;k x;k gS vkSj uk gh Hkkfjr fd;k tk ldrk gSA (D) ;g fd oknh ds i{k esa ;g Hkh ?kks"k.kkRed vkKfIr iznku dh tkosa fd ifjlekid } kjk ^^fopkjk/khu Hkwfe;ksa** dk dCtk izfroknh Øekad 01 ,d dks fn;k gS] mls okfil oknh izkIr djus dk vf/kdkjh gSA (E)
;g fd dqy okn O;; oknh dks izfroknhx.k ls fnyok;k tkosa ,oa vU; dksbZ U;k;ksfpr lgk;rk tks okn ds Lo:i ls ifjyf{kr gksrh gS o ftldks oknh izkIr djus dk vf/kdkjh gS og Hkh oknh dks izfroknhx.k ls fnyokbZ tkosaA”
9] In the aforesaid suit, the petitioner has filed two separate applications, one under Section 11 read with Order 7 Rule 11 of CPC and the other Order 7 Rule 11 of CPC. In the first application dated 04.10.2018, the objection was raised that the suit is not maintainable being barred under Sections 17, 18, 19 & 31 of the Recovery of Debts & Bankruptcy Act, 1993. The petitioner's contention was that the suit is barred by the principles of constructive res judicata , as in the earlier round of litigation, in suit No.3-A/2002, the State Government was also one of the contesting parties, but no such claims were made by the State Government as in the present suit.
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10] The petitioner's further contention in the aforesaid application is that the order of sale, which was challenged by the State Government before the DRT, Jabalpur was also rejected vide order dated 10.2.2010. And, in the Company Petition also the objection raised by the State Government against the sale has been rejected vide order dated 16.1.2013.
11] Before the aforesaid application under Order 7 Rule 11 of the CPC could be decided, the respondent/plaintiff, taking a clue from the aforesaid application, filed an application under Order 6 Rule 17 of the CPC on 28.1.2020, for amendment in the pleadings in para 4, 7, 8, 10, 12 and 13 of the plaint and in these proposed pleadings, the respondent has raised for the first time the ground that there was a collusion between the Defendant Nos. 1, 2, 3 & 6 and the Official Liquidator. Thus, for the first time, the respondent/State Government came out with the case that there was a collusion between the defendant No.1-the petitioner, defendant No.2-the Central Bank of India and defendant No.3- the Official Liquidator.
12] The petitioner's contention is that the aforesaid application for amendment has been filed only to meet out the contentions raised by the petitioner in their application under Order 7 the Rule 11 of the CPC regarding non-maintainability of the suit under Sections 17, 18, 19 and 31 of the RDB Act, 1993. The aforesaid amendment application has been partly allowed vide order dated 15.2.2020. The pleadings of the respondent/plaintiff has been denied in the
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consequential amendment.
13] The petitioner's contention is that it was only when the subsequent objection raised by the defendant that the suit is not maintainable as provided under Section 29 and, by way of reference as per Schedule 2 Rule 9 of the Income Tax Act, which provides that a suit can be brought only on the ground of fraud, since there was no pleading in the plaint regarding fraud, the suit itself is not maintainable and then taking a clue from the aforesaid objections, the plaintiff sought time and, subsequently, filed an application for seeking the amendment to bring the suit within the purview of Schedule 2 Rule 9 of of the Income Tax Act.
14] Counsel for the petitioner has further submitted that otherwise also, since the sale certificate has already been affirmed by this Court as also by the DRT, Jabalpur, there is no question of fraud being played by the Official Liquidator, who is also an officer of the Court or by the Central Bank of India, which is public Sector financial Institution.
15] Counsel for the petitioner has drawn attention of this Court to the order dated 28.4.2008 passed by this Court in Company Petition No.25/2001. The relevant para 4 & 5 of the order reads as under :-
“4 In may opinion, taking into consideration the aforementioned undisputed facts coupled with perusal of original record summoned by this Court of the execution case from Tribunal and keeping in view the affidavit filed by Recovery Officer in this Court as per direction to show as to how the sale
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was conducted and law laid down by Supreme Court in 2 decisions reported in (2000) 4 SCC 406, Allahabad Bank Vs. Canara Bank and others (2005) 8 SCC and Rajasthan State Finance Corp. vs. Official Liquidator defining the jurisdiction of Company Court in such case the application made by applicant-purchaser deserves to be allowed.
( emphasis supplied)
Counsel has submitted that the aforesaid order has already attained the finality and it has not been challenged by the State Government in appeal.
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16] Counsel has also drawn attention of this Court to the decision rendered by the Supreme Court in the case of Canara Bank vs. P. Selathal and others report as (2020) 13 SCC 143.
17] Thus, it is submitted that the suit itself is liable to be dismissed even if the subsequent amendment pleadings is to be considered by the plaintiff.
18] Counsel for the petitioner has also submitted that otherwise also, in Civil Suit No.21-B of 1995 and 22-B of 1995 wherein the State Government was of party, no such claims were made by the State Government and no counterclaim was filed. And, since in the aforesaid suit, the very properties, which have been mutated in favour of the petitioner were also involved, it was incumbent upon the State Government to take up the plea through counterclaim regarding ownership of the property, and since in the aforesaid pleadings, the State Government has waived its right to claim the suit land, it cannot claim the same in the present Civil Suit.
19] In support of his submissions, counsel for the petitioner has relied upon the decision rendered by this Court in the case of M. Nagabhushana vs. State of Karnataka and others reported as (2011) 3 SCC 408. The relevant para No.11,12,13, 16 & 18 reads as under:-
“11. We find that disregarding the aforesaid clear finding of this Court, the appellant, on identical issues, further filed a new writ petition out of which the present appeal arises. That writ petition, as noted above, was rejected both by the
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learned Single Judge and by the Division Bench in clear terms. It is obvious that such a litigative adventure by the present appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto.
_interest reipublicae ut sit finis litium_ ' which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause ' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.13
the matter of accessing Court for agitating on issues which have become final between the parties.
xxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxx
(emphasis supplied)
20] Counsel for the petitioner has further submitted that otherwise also, this Suit is barred by limitation for the reason that the cause of action to file a suit arose to the State Government when the civil suit was filed by the Central Bank of India in the year 1995 and has already stated the aforesaid suit has not been contested by the State Government in any manner nor any counterclaim has been filed. And, in such circumstances, the cause of action cannot be said to have taken in the year 2017 wherein, cause of action is said to be the permission granted by the Division Bench of this Court in Company Appeal No.3 of 2017 vide order dated 20.4.2018.
21] On the other hand, counsel for the respondent/State has
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submitted that cause of action actually arose to the plaintiff initially on 10.2.2010, 17.2.2010 and 11.6.2010 when the plaintiff's land in question was auctioned and the sale certificate was issued and subsequently, when the Company Appeal No.03/2017 was allowed on 20.4.2018 granting permission to the State Government to file a suit. Thus, it is submitted that the cause of action arose initially in the year 2010. It is also submitted that since the plaintiff's earlier suit No.6C/2017 was dismissed as no permission was sought from the Company Court and since the Company Court refused the permission vide order dated 5.9.2017, given in the Company Appeal the said permission has been granted vide order dated 20.4.2018.
22] Counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that the suit was well in limitation as firstly, it was filed within 12 years as provided under Article 65 of the Limitation Act, from the date of cause of action, even taking the date of cause of action to be 2010 and secondly, as per Art. 112 of the Limitation Act, which provides the limitation to the State Government to be 30 years from the date of cause of action.
23] Counsel has submitted that since the possession has also been sought by the State Government the civil suit was well within limitation. Counsel has also drawn attention of this Court to para 15 of the order dated 20.4.2018 passed by this Court in Company Appeal No.03/2017, which reads as under :-
“15. From the aforesaid narration of facts, it is
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not in dispute that the question of right, title and interest on the land in question of the State has not been finally decided in any of the proceedings either before the DRT or before the learned Company Judge. As per DRT proceedings and other dated 5.4.2002, the State was made a party to the proceedings on the ground that land in question was mortgaged with the Bank. No copy of mortgage deed was filed no any document was produced either before the DRT or before the learned Company Judge to prove that the land was mortgaged by the Stage with the Bank or that the Company in liquidation was declared Bhumiswami of the land. The question whether the lease hold rights was given to the company and or by operation of Section 182 of the Code the Company in liquidation cannot be deemed to be Bhumswami of the land in question or the State lessors would be entitled to get back the possession of their land is required to be decided on merits by adducing oral and documentary evidence by the concerned parties, who are claiming their rights over the land in question. The appellants/State have to establish right, title and interest on the land in question by adducing evidence.”
(emphasis supplied)
24] Regarding the bar under the provisions of R.D.B. Act, Counsel for the respondent has relied upon the decision rendered by the Supreme Court in the case of Bank of Rajasthan Limited vs. VCK Shares and Stock Broking Services Limited reported as (2023)1 SCC 1. The relevant para 45 of the order reads as under:-
“45. We are thus, of the view that there is no provision in the RDB Act by which the remedy of a civil suit by a defendant in a claim by the Bank is ousted, but it is the matter of choice of that defendant. Such a defendant may file a
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counterclaim, or may be desirous of availing of the more strenuous procedure established under the Code, and that is a choice which he takes with the consequences thereof.”
25] Counsel has further submitted that the question regarding the res judicata cannot be decided in application filed under Order 7 Rule 11 of the CPC. For this purpose, he has also relied upon the decision rendered by the Supreme Court in the case of Srihari Hanumandas Totala vs. Hemant Vithal Kamat and others reported { in Civil Appeal No.4665 of 2021 (arising out of SLP (C) No. 3899 of 2021. Para 20 of the order reads as under:-
“20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:-
(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;
(ii) The defense made by the Defendant in the suit must not be considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res-judicata, it is necessary that (i) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
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(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused.”
(emphasis supplied)
26] Heard the counsel for the parties and perused the record. 27] From the record, this Court finds that there are various orders passed by the Company Court, Company Appellate Court as also the DRT Jabalpur which have been placed on record by the petitioner. So far as the submissions of shri Pawar in respect of the amendments made in the civil suit are concerned, which are regarding the role of the Official Liquidator, this court finds that the said amendments have nothing to do with the subject matter of this revision, and thus no order is required to be passed in this regard.
28] This Court also finds that the main plank of the argument of Shri Panwar is that the suit filed by the respondent/plaintiff suffers from mischief of Section 11, as barred by the principles of constructive res-judicata and otherwise also the suit is hopelessly barred by limitation as even according to the petitioner, the earlier suit filed by the Central Bank of India was filed in the year 1995, in which also, no such ground was raised by the plaintiff claiming their ownership of the land in the said suit, and they could have filed a separate suit within three years from 1995 when the suit was filed by the Central Bank of India.
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29] This Court also finds that learned Judge of trial court has dealt with the objections raised by the defendant at length and has rejected the applications filed under Or.7 rule 11/ Section 11 of the CPC. This Court is of the considered opinion that the learned Judge of the trial court has not faulted in rejecting the aforesaid applications for the reasons as assigned hereunder.
30] It is also found that so far as the objection raised by the defendant regarding non-maintainability of the suit filed under Sections 17, 18 & 31 of the RDB Act is concerned, the trial Court has held that these objections have already been repelled by the said court on earlier occasion, hence, the same cannot be visited the second time on an application filed under Order 11 Rule 7 of the CPC. This Court finds that this finding has not been specifically challenged by the petitioner in the memorandum of the petition nor this Court finds any such order of the same court on record dealing with such issues and rejecting them. However, the learned Judge of the trial court has also held that since the suit is filed for the title of the property, which relief can only be raised before civil court, hence, the suit is maintainable. This Court does not find any error in the said finding, considering the relief sought by the plaintiff, which is already reproduced hereinabove.
31] So far as the objection raised by the defendants u/s.11 of cpc regarding plea of constructive res-judicata is concerned, the trial Court has held that the earlier suit No.1-A/2019 was between one
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Mangilal and others for specific performance of contract; whereas the present case has been filed by the State of Madhya Pradesh for title and permanent injunction. Otherwise also reference may be held to the decision rendered by the Supreme Court in the case of Srihari Hanumandas Totala (supra) in which it has been held that the plea of res-judicata can be decided only during the trial and not at the stage of an application under Order 7 Rule 11 of the CPC. The relevant paras of the same read as under:-
“20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:
(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;
(ii) The defense made by the Defendant in the suit must not be considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res judicata, it is necessary that (I) the 'previous suit' is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; )iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issue and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused.
( emphasis supplied )
32] Another contention of the petitioner was that the respondent State has also not taken any objection regarding the diversion of land in the name of the defendant is concerned, the court has rightly held
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that it is a question to be decided during the course of the trial only.
33] So far as the delay in filing the suit is concerned, the contention of the petitioner is that the cause of action arose in the year 1995-1996 which has already come to an end in the year 1998. But it is found that this Court in Company Appeal No.3/2017, vide its order dated 20.4.2018 has allowed the plaintiff to institute a civil suit as provided under Section 446 of the Companies Act 1956. In such circumstances, such issue being a mixed question of law and fact, can only be decided after leading the evidence and thus, the aforesaid ground of delay is also not available to the petitioner at this stage. The decisions cited by the learned counsel for the petitioner being distinguishable, are of no avail to the petitioner.
34] In such facts and circumstances of the case, this Court is of the considered opinion that no case for interference is made out. Accordingly the civil revision being devoid of merits it hereby dismissed.
35] Learned Judge of the trial court is requested to expedite the matter, without being influenced by this order, on its own merits, on the basis of the evidence led by the parties, considering the fact that the civil suit itself has been filed in the year 2018.
( SUBHODH ABHYANKAR ) JUDGE
moni
Digitally signed by MONI RAJU DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=6fb601f03d4083a3289219d85392bac3bde1be8a MONI RAJU 53bd80aeba7af5a5244844c1, postalCode=452001, st=Madhya Pradesh, serialNumber=3BFD07BEC0C790E4AEA8CB122D629549D 1067813B2AE8FB016F1BF08EE881126, cn=MONI RAJU Date: 2023.04.11 18:27:01 +05'30'
3 issues framed by the court
Was the State's suit claiming title to auctioned land barred by the RDB Act?
Could constructive res judicata justify rejection of the plaint under Order 7 Rule 11 CPC?
Could the suit be rejected as time-barred without evidence?
Colour shows how this judgement treated each authority
Canara Bank vs. P. Selathal and othersDistinguished¶69
(2020) 13 SCC 143 · Who else cites this
M. Nagabhushana vs. State of Karnataka and othersDistinguished¶72
(2011) 3 SCC 408 · Who else cites this
Srihari Hanumandas Totala vs. Hemant Vithal Kamat and othersApplied¶114
Civil Appeal No.4665 of 2021 (arising out of SLP (C) No. 3899 of 2021
5 provisions across 3 enactments
M/S ANJNA CONSTRUCTION
THE STATE OF MADHYA PRADESH
CENTRAL BANK OF INDIA
THE JIWAJIRAO SUGAR COMPANY LTD.
OFFICAL LIQUIDATOR OF THE JIWAJIRAO SUGAR COMPANY LTD. DALAUDA
RECOVERY OFFICER DEBTS RECOVERY TRIBUNAL
SUBODH ABHYANKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court