TaxTMI 
TaxTMI 
2021 (8) TMI 592
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.... "1. Your Honour may please be declare all the Chques as void as the cheques are void and illegal because we, the plaintiff/s has/have given cheque No.000082, 000083, 000084 and 000085 of HDFC Bank Ltd. Piplod Branch, Surat towards the security against the amount borrowed from the opponent/s and though the opponents has bound to return the cheques, which were received from the plaintiff/s towards security against the amount borrowed from the opponent/s, the opponent/s is/are misusing the cheques received on account of security amount. 2. Your Honour may please be grant to perpetuate injunction against the opponent/s as his associates, servants, agents restraining them to negotiate or clear his cheques as they are not entitled for the same and also restraining them from initiated any criminal proceedings against the plaintiff/s. 3. To award the costs of this petition from the opponent/s. 4. As any other relief may be granted deem fit by the Hon'ble Court." 2.2 It appears from the averments made in the plaint as also the prayers in the plaint that there is some financial transaction between the plaintiff and the defendants. It is not in dispute as ....
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....e plaintiff that the defendants may institute cases under section 138 of NI Act and thus present suit is filed by the plaintiff against defendants seeking following reliefs: (a) To pass a decree of declaration declaring the cheques in question as null and void. (b) To pass a decree of perpetual injunction to direct the defendants to not to initiate any proceedings under section 138 of NI Act against the plaintiff. 2. Now, taking the pleading of plaintiff into consideration, it appears from documents produced vide exhibit 3 that the defendants had given notice to the plaintiff and his son under NI Act which were given in either december 2020 or January 2021. It is pertinent to note that the plaintiff has admitted the execution of cheques in question in favour of the defendants. The only question raised by the plaintiff vide present suit is that the said cheques in question were fabricated and misappropriated by the defendants or defendants may misuse the same to incur mental harrasment upon plaintiff. As it is crystal clear that statutory notice under NI Act is given by the defendants to the plaintiff, the relief of declaration sought by plaintiff to decla....
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....gue that Order 7 Rule 11 of the Civil Procedure Code enables the Court to reject the plaint in certain cases. However, what is contemplated by the provisions of Order 7 Rule 11 is that the plaint as a whole is open to rejection. Even if one of the reliefs sought by the plaintiff cannot be rejected under the provisions of Order 7 Rule 11, the plaint as such cannot be rejected. In such circumstances referred to above, Mr. Karathiya, prays that there being merit in his appeal, the same may be allowed and the impugned order be quashed and set aside. 3.1 Mr. Karthiya submits that the necessary corollary of a declaration that may ultimately be granted by the Civil Court in terms of the prayer 14(1) made in the Suit, would be that the defendants would be dis-entitled from relying upon the said cheques to maintain any legal proceedings against the plaintiff. 4. On the other hand, this appeal has been vehemently opposed by Mr. Harshadray Dave, the learned counsel appearing for the original defendants. Mr. Dave would submit that no error not to speak of any error of law could be said to have been committed by the Court below in passing the impugned order. According to Mr. Dave, the sui....
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....icer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation." 6.3 Section 41(d) reads thus: "41(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter." 7. It goes without saying that so far as the relief as prayed for in terms of para 14(2) in the plaint is concerned, the same is barred by law i.e. by virtue of Section 41(d) of the Act, 1963. The question is whether the main relief of declaration i.e. in terms of para 14(1) could also be said to be barred by law? 8. In the aforesaid context, we may only say that the main relief of declaration as prayed for and referred to above, could be said to be maintainable under Section 31 of the Act, 1963. The plaintiff is in-fact seeking to have the cheques adjudged void or voidable and is further seeking the declaration of its being delivered up and cancelled. In such circumstances, it could be said that the plaintiff is not seeking the declaration of his legal character qua the defendants nor is the plaintiff seeking a declaration of a right as to any property. It cannot, th....
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....eme Court in the case of Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties, 2020 SCC Online SC 655, wherein explaining the meaning of the expression "any person against whom a written instrument is void or voidable....." under Section 31(1), the Supreme Court said that the expression "any person" would not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. 10.4 A Division Bench of the Bombay High Court in the case of Jeka Dula vs. Bai Jivi reported in 1938 AIR (Bom) 37, had observed : "4. Although, there was no prayer in the plaint specifically for cancelling these three deeds, the plaintiff's case really was that he was entitled to a declaration that they were void or voidable and were not binding on him, and it is on that footing that the case has been argued before us on behalf of the appellant. The learned Counsel who argued on behalf of the appellant contended that the case fell under Section 39 of the Specific Relief Act as regards the relief by way of cancellation of these deeds and under Section 42 of that Act as regards the declaratory relief sought. 5. Now the relief as to c....
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....e is no question of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A. No. 36/97 is on the footing that the averments in the election petition did not contain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order 7, Rule 11 (a), learned senior counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order 7, Rule 11(a) C.P.C. can not therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7 Rule 11 (a) C.P.C., the Court can not dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there can not be a partial rejection of the plaint or pet....
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....partial rejection is apparently inapplicable to the provisions of Order 7, Rule 11 of the Code of Civil Procedure, it would have its limited application in regard to the provisions of Order 6, Rule 16 of the Code. There could be partial striking out of pleadings but not rejection of plaint. Partial acceptance or rejection or even admission of appeals in absence of a specific rule to that effect was described by the Hon'ble Supreme Court of India not a proper exercise of jurisdiction. In this regard, reference can be made to the case of Ramji Bhagala v. Krishnarao Karirao Bagre, MANU/SC/0034/1980 : AIR 1982 SC 1223. This is not even the main controversy between the parties in the present case. Thus, I see no reason to discuss this contention in any further elucidation. 23. To bring out the cause of action, a plaint must state necessary conditions to maintain a suit. The merit of those conditions and/or terms is inconsequential at the stage, for consideration of such application. What evidence the plaintiff would lead to prove his case or what probable defence the defendant would raise is not the concern of Court at that initial stage of proceedings. Cause is the proper ....