1 WP-5251-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5251 OF 2011 M/s.Shankar Cotron ..Petitioner Vs I.B.Enterprises and ors. ..Respondents ­­ Mr.D.S.Chandanani, for petitioner. Mr.H.Toor i/b.Mr.A.Ramkrishna, for respondent no.1. Ms.Varsha Palav, for respondent no.2. Mr.A.V.Anturkar i/b.Ms.Molina P.Thakur, for respondent no.3. ­­ CORAM : R.G.KETKAR, J. DATE : 13 th SEPTEMBER, 2011 P.C. Heard Mr.D.S.Chandanani, learned counsel for the petitioner, Mr.Toor, learned counsel for respondent no.1, Ms.Varsha Palav, learned counsel for respondent no.2 and Mr.A.V.Anturkar, learned counsel for respondent no.3. 2 WP-5251-11.odt 2] By this petition, the original plaintiff has challenged the judgment and order dated 14th June, 2011 passed by the learned VIIIth Joint Civil Judge, Junior Division, Solapur. By that order, the learned trial Judge rejected the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 (for short "C.P.C.") on the ground that the suit from statement contained in the plaint is barred under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 3] Mr.Anturkar raised a preliminary objection to the effect that the present petition filed under Article 227 of the Constitution of India is not maintainable as the rejection of plaint amounts to a decree as defined under Section 2(2) of the C.P.C. The remedy available to the petitioner is by filing a substantial appeal instead of filing petition under Article 227. 4] On the other hand, Mr.Chandnani submitted that the rejection of plaint under Order 7 Rule 11(d) of C.P.C. does not amount to a decree. In support of this submissions, he relied upon the following judgments of the Apex Court : 3 WP-5251-11.odt (i) Kamala and ors. Vs. K.T.Eshwara Sa, AIR 2008 SC 3174; (ii) Abdul Gafur Vs. State of Uttarakhand, AIR 2009 SC 413; (iii) S. Satnam Singh Vs. Surender Kaur, AIR 2009 SC 1089. Relying upon the above judgments, he contended that the rejection of plaint would not amount to a decree as it does not satisfy the following tests : (i) There must be an adjudication; (ii) Such adjudication must have been in a suit; (iii)It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit; (iv)Such determination must be of a conclusive nature; (v) There must be a formal expression of such adjudication. 4 WP-5251-11.odt Since there is no adjudication of rights of the parties with regard to all or any of the matters in controversy in the suit as also the determination is not of a conclusive nature, it will not amount to a decree. He submitted that the conclusion that the suit is barred under any law must be drawn from everments made in plaint. In support of this submission, he relied upon the judgment of the Apex Court in the case of Kamala and ors (supra). He further submitted that at any rate, this is a fit case for exercising jurisdiction of this Court under Article 227 of the Constitution of India. In support of this preposition, he relied upon the judgment of this Court in the case of Surya Dev Rai Vs. Ram Chander Rai, AIR 2003 SC 3044. 5] I have considered the rival submissions made by learned counsel for the parties. Section 2 (2) of the C.P.C. reads as under : In this Act, unless there is anything repugnant in the subject or context, (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a 5 WP-5251-11.odt plaint and the determination of any question within section 144, but shall not include­ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation­A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final; Perusal of Section 2(2) indicates that decree means (1) formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. (2) It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but (3) shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. In view of the express language of Section 2(2), in my opinion, rejection of plaint amounts to a decree as 6 WP-5251-11.odt defined under Section 2(2) of the C.P.C and consequently, Writ Petition under Article 227 of the Constitution of India is not maintainable. The judgments of the Apex Court in (i) Kamala & ors. (supra), (ii) Abdul Gafur (Supra), (iii) S. Satnam Singh (supra) do not advance the case of the petitioner. 6] In so far as reliance placed on the judgment of the Apex Court in the case of Surya Dev Rai (supra) and in particular, paragraph 24 is concerned, the Apex Court was considering the difference between a writ of Certiorari under Article 226 and supervisory jurisdiction under Article 227 of the Constitution. Relying upon the judgment in the case of Umaji Keshave Meshram and ors. Vs.Radhikabai w/o.Anandrao Banapurkar and anr., (1986) Suppl. SCC 401, it was observed that the proceedings under Article 227 of the Constitution are not original but only supervisory. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The judgment of Surya Dev Rai (supra) is of no assistance to the petitioner. 7 WP-5251-11.odt 7] As far as submission of Mr.Chandnani that the conclusion that suit is barred under any law must be drawn from the averments made in the plaint is concerned, in my opinion, the position is well settled. Since I am of the opinion that the present petition is not maintainable, I refrain from going into this aspect. 8] In view of this, in my opinion, the Writ Petition filed under Article 227 of the Constitution of India is not maintainable and the same is dismissed with liberty to the petitioner to file substantive appeal. It is expressly made clear that I have not expressed any opinion on the validity of the order impugned in the present petition. Petition is dismissed. [R.G.KETKAR, J.]