Prakash Kaur vs Everest Construction Co.
1990 Latest Caselaw 415 Del

JUDGMENT

Mahinder Narain, J.

(1) By this order, I propose to deal with the preliminary objection which has been taken by the defendant that this Court has no jurisdiction to entertain the suit.

(2) The plaintiff asserts that an agreement was entered into between the plaintiff and the defendant. This agreement was entered into at Bombay on 13 10.1981. This postulated that defendant will sell a flat in a proposed building which was to be constructed at Prabha Devi, Bombay. It is not disputed between the parties that on 13.10.1981 when the agreement was entered into the building was not in existence. At the time of entering into that agreement, plaintiff had paid a sum of Rs. 12,875.00 to the defendant.

(3) The pff. asserts that the deft. is denying the existence of the aforesaid agreement, and that the deft. is refusing to specifically perform that agreement, illegally, and the pff. seeks a declaration only that the agreement dated 13.10.1981 continues to exist.

(4) The preliminary objection which has been taken is because it is stated that the agreement between the parties was executed at Bombay ; that the immovable property which was proposed to be constructed, was to be constructed at Bombay, and for both the aforesaid reasons, the courts at Delhi have no jurisdiction to entertain the suit.

(5) In order to deal with the objection relating to jurisdiction, Counsel for pff. has cited a judgment by B.N. Kirpal, J. in Prakash Kaur vs. K.G. Ringshia, (LA. No. 7322 of 1984 in Suit No. 1979 of 1984). This judgment need not be dealt with in view of the contentions raised by the counsel for the pff. before me, which were not raised before Kirpal, J. Before me, he has contended that in view of S. 54, Transfer of Property Act, inasmuch as the agreement between the parties dated 13.10.1981 is an agreement covered by that section, it creates no interest in any immovable property, and, therefore, S. 16(d) of the Civil Procedure Code . does not come in operation, and does not bar jurisdiction of this Court.

(6) Section 54 of T.P.A. is : --A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

(7) Mr. P.C. Khanna has also cited 1967 Scr 293= 1967 Sc 744 (Ram Baran Prasad vs. Ram Mohit) and (Bai Dosabai vs. Mathuradas). In both these cases, the Supreme Court has considered S. 54, T.P.A., and has reiterated that what the section states, namely, that an agreement to sell does not create any interest in any immovable property.

(8) In this view of the matter, the plea taken by the deft. that S. 16(d), Civil Procedure Code ., which bars the cognizance of suits relating to immovable property by courts other than the one in which the immovable property situates, is of no force, inasmuch as the words in S. 16(d), C P.C. and the words in S. 54, T.P.A. are "interest" in immovable property. In my view, same words being used in two different statutes, must be given same meaning, and for this reason, the contention of the deft. that this Court has no jurisdiction on account of S. 16(d), Civil Procedure Code ., must be rejected.

(9) It is contended by Mr. P.B. Aggarwal, learned counsel for the deft. that considering the provisions of S. 34 of the Specific Relief Act, this suit is not maintainable. Sec. 34 of Specific Relief Act reads :- "34.Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

(10) In this case, what the pff. seeks is a declaration that an agreement dated 13.10.1981 subsists, and that by virtue of that agreement between the parties, the pff. has a legal character of a purchaser, and the deft. has a legal character of a seller. It is also noted above, the deft. is denying that legal character of seller and purchaser, for whatever reasons, which are to be adjudicated upon between the parties.

(11) The first part of S. 34, Specific Relief Act, therefore, is not a bar to this Court entertaining the suit.

(12) Mr. P.B. Aggarwal then says that the proviso to that section requires that wherever the plaintiff can seek a further relief, a mere declaration of title, ought not to be given, inasmuch as the plaintiff has omitted to seek the further declaration.

(13) Mr. P.C (Channa, on the other hand, contends that he does not seek any further declaration in these proceedings as he only wants to have the plaintiff's legal character determined, and upon determination, whatever further reliefs are available, he will seek that in an appropriate forum. In any case, it appears to me that the pff has deliberately chosen not to ask for any further relief. Further relief for specific performance of the agreement, if it exists, cannot be granted by this Court. In any case, the very existence of, or non-existence of the agreement to sell, has first to be established before specific performance can be granted, and that the plaintiff has, in my opinion, entitled to do in view of the first part of S. 34 of the Specific Relief Act.

(14) The contention of Mr. P.B. Aggarwal that because of the proviso to S. 34 of the Specific Relief Act, the suit cannot be tried by this Court, must also be rejected.

(15) Mr. P.B. Aggarwal then contends that because of the provisions of Order 2 Rule 2, C.P.C. this suit is not maintainable. He has done so half-heartedly, and as he should have, because the entirety of the relief which can be granted by this Court, namely, determination of existence or non-existence of the agreement to sell, is within the power of this Court, as that is the only relief claimed in this suit, and the only relief which the plaintiff is entitled to.

(16) Mr. P B. Aggarwal also called in the aid of Order 7 Rulell(a), Civil Procedure Code . that the plaint does not disclose the cause of action. In view of what is stated in the plaint, declaration sought, and what is stated above, the plaint does disclose cause of action which may be adjudicated upon by this Court.

(17) The next contention raised by Mr. P.B. Aggarwal is regarding S. 20, C P.C., which reads : "20.Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--. (c) the cause of action, wholly or in part, arises......."

(18) Mr. P.B. Aggarwal says that inasmuch S. 16(d), Civil Procedure Code . does not apply, S. 20, Civil Procedure Code . is applicable, and because the entirety of the cause of action has arisen at Bombay, and because denial of the agreement was made by letter dt. 24/28.12.1987 at Bombay, by delivery thereof to the Post Office by the deft. on instructions of the pff. the entirety of cause of action has arisen at Bombay. In this view, this Court has no jurisdiction to try the suit,

(19) Mr. P.C. Khanna meets this contention of Mr. P.B. Aggarwal by citing I.L.R. 1969 Delhi 931 (Raja Brothers vs. Chanrai Uttam Chand), according to which judgment, if the revocation letter has been received at Delhi, part of cause of action arises at Delhi, and this Court gets jurisdiction to try the suit.

(20) I am in respectful agreement with I.L.R. 1969 Delhi 931 (supra), and 1 hold that the denial of the agreement, and putting that denial into the hands of the Post Office, which denial has been received by the pff. at Delhi, creates a part of cause of action in favor of the plaintiff at Delhi. Part of cause of action having arisen at Delhi, this Court has jurisdiction to try the suit.

(21) In this view of the matter, I decide the preliminary objection against the deft. and in favor of the plaintiff, and hold that this Court has jurisdiction to try the suit.