*1* nms.1855.2555.11.s.1027.08.956.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2555 OF 2011 IN SUIT NO.1027 OF 2008 Lokhandwala Infrastructure Private Limited. ..Plaintiffs -versus- Mukund Vadilal and others. ..Defendants ............ Mr.Nasem Patrawala i/b Pravin Mehta Mithi & Company, for the Plaintiffs. Mr.Ralston Fernandes, for the Defendant Nos.4 and 6 to 9. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 27th September, 2011. P.C.: 1 This Notice of Motion No.2555/2011 by the Defendant Nos.4 and 6 to 9 is seeking dismissal of the suit under Order VII Rule 11 of the Code of Civil Procedure, 1908. 2 It is contended on behalf of these Defendants in support of this Notice of Motion that the suit is filed seeking a relief that the agreement dated 12.08.2004 (annexure C to the plaint) is valid, subsisting and binding upon the Defendants and they be ordered to execute the Deed of Conveyance and other documents so as to transfer and vest the suit property described in Annexure-A in favour of the Plaintiff by specifically performing the agreement dated 12.08.2004. 3 It is contended that this agreement has been executed between M/s Lokhandwala Builders and the owners of the property. The suit is filed not by Lokhandwala Builders, but by Lokhandwala Infrastructure Pvt.Ltd. and therefore, the suit is not maintainable and *2* nms.1855.2555.11.s.1027.08.956.sxw deserves to be dismissed. 4 This is clear from reading of the plaint itself and my attention is invited to the letter addressed by the Plaintiff’s Advocate, copy of which is at page 109 of the plaint paper book (annexure L), in which, a statement is made that M/s Lokhandwala Infrastructure Pvt.Ltd. are clients of the said Advocate and they were formerly known as “Lokhandwala Builders”. In these circumstances, it is contended by the Defendants that this suit is not maintainable and should be dismissed at threshold. 5 It is not possible to accept this contention because the plaint proceeds on the basis that Lokhandwala Infrastructure Pvt.Ltd. is a successor in title of the Lokhandwala Builders. It is stated in paragraph 1 of the plaint that the assets and liabilities of the firm, namely, Lokhandwala Builders are taken over with all benefits and rights attached thereto and that is how the suit agreement and all obligations thereunder can be enforced by the Plaintiffs. The Plaintiffs may or may not succeed on the basis of this version, but the suit cannot be dismissed at threshold by invoking Order VII Rule 11. 6 It is not possible to agree with the learned counsel appearing for the Defendant Nos.4 and 6 to 9 that the suit is barred by law because in terms of Order VII Rule 11 the Plaintiff is disentitled from claiming any relief. As far as the Order VII Rule 11 clause (a) is concerned, the Court can proceed on the basis that the plaint can be rejected when it does not disclose the cause of action. As far as clause (d) is concerned, the suit can be dismissed where it appears from the statement in the plaint that the suit is barred by any law. Neither of these cases are made out inasmuch as the plaint not disclosing the cause of action and the suit failing for want of cause action are two distinct matters. As far as the first is concerned, that *3* nms.1855.2555.11.s.1027.08.956.sxw is the matter when the suit can be rejected at threshold whereas later part would apply when the suit is tried. This subtle but important distinction has to be noted. Further, no statement in the plaint shows that the claim of the Plaintiffs is barred by any law. If the Plaintiffs fail to prove its case that it is not successor in title of the firm, then, it will face the consequences. However, at threshold this suit cannot be dismissed. In such circumstances, the Notice of Motion No.2555/2011 is misconceived and it is, accordingly, dismissed. 7 At the request of Mr.Patrawala, learned counsel appearing for the Defendant Nos.4 and 6 to 9, place this suit for framing issues on 05th October, 2011. (S.C. Dharmadhikari, J)