Ashok Jain And Anr. vs Ajay Enterprises Pvt. Ltd. And ...
2007 Latest Caselaw 1775 Del

JUDGMENT

S.N. Aggarwal, J.

1. This order shall dispose of an application under Order 7 Rule 11 CPC filed on behalf of the defendant No. 1 for rejection of the plaint of the present suit for want of territorial jurisdiction of this Court to entertain the present suit.

2. The plaintiffs had entered into a Flat Buyer Agreement with defendant No. 1 agreeing to purchase a flat to be constructed by defendant No. 1 at Faridabad. The plaintiffs have filed the present suit for permanent and mandatory injunction with the following prayers:

A. Pass a decree for permanent injunction in favor of the plaintiffs and against the defendants thereby restraining the defendants, their agents, employees, assigns, attorney etc or any person acting on their behalf from in any way canceling the booking of the plaintiffs in respect of the premises in question i.e. apartment being Flat No. 901, 9th Floor, royal Retreat II Luxury Flats (Air-conditioned), Charm Wood Village, Suraj Kund Road, Faridabad, more specifically shown in RED in the site plan attached and/or creating any third party rights in any part or whole of the premises in question in any manner whatsoever.

B. Pass a decree for mandatory injunction in favor of the plaintiffs and against the defendants thereby directing stages of construction, schedule for payment of installments (construction based) schedule, date of delivery of possession and the formalities required to be completed in pursuance to confirm books dated 25.04.2005 for sale of premises in question and further to complete such formalities in respect of the premises in question i.e. Flat No. 901, 9th Floor, royal Retreat II Luxury Flats (Air-conditioned), Charm Wood Village, Suraj Kund Road, Faridabad.

C. The cost of the suit be also awarded to the plaintiffs as against the defendants.

D. Such other further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case may also be passed in favor of the plaintiffs and against the defendants.

3. It is not in dispute that the plaintiffs had entered into a Flat Buyer Agreement with defendant No. 1 on 25.04.2005. The said Agreement is at pages 1 to 4 of the documents file (Part III file). The counsel appearing on behalf of defendant No. 1 has relied upon a judgment of the Hon'ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr. in support of his arguments that the proviso of Section 16(d) of the CPC would not be attracted in the present case and that this Court cannot decide the rights or interest of the parties in the immovable properties situated outside the jurisdiction of this Court. Mr Jain appearing on behalf of the plaintiffs has argued that the decree as prayed for by the plaintiffs in the present suit if granted can be enforced by personal obedience of the officials of defendant No. 1 and therefore according to him proviso to Section 16(d) CPC would apply and this Court will have the jurisdiction to try the present suit. A bare look to the second prayer made by the plaintiffs in the present suit would show that the plaintiffs in substance are asking for specific performance of the Flat Buyer Agreement executed between the parties on 25.04.2005. The Agreement which is pages 1 to 4 of the document file (Part III file) would show that the said Agreement executed between the parties was a comprehensive Agreement which deals with delivery of possession as well as execution of sale deed in respect of the flat agreed to be purchased by the plaintiffs from defendant No. 1. Clause 12 and 14 at page of the said Agreement are relevant and the same are reproduced here-in-below:

12) The company shall endevour to give the possession of the unit to the intending allottee(s) within committed period subject to force majeure circumstances and on receipt of all payments as per installment plan from the date of booking and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him/her. The company on completion of the construction shall isse final call notice to the intending allottee(s), who shall within 30 days thereof, remit all dues and take possession of the unit in the event of his/her failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit and shall bear all maintenance charges and any other levies on account of the allotted unit.

14) The Sale Deed shall be executed and got registered in favor of the intending allottee(s) within the reasonable time after the completion of the development work/construction at the site and after receipt from his/her full price and other connected charges. Cost of stamp duty and registration/mutation, documentation charges etc. as applicable will be extra and shall be borne by the intending allottee(s). The intending allottee(s) shall pay as and when demanded by the Company, Stamp Duty and Registration Charges/Mutation Charges and all other incidental and Legal Expenses for execution and registration of sale deed/mutation of the unit in favor of the intending allottee(s).

4. In para 14 (B) of the plaint the plaintiffs have prayed for a decree of mandatory injunction against the defendants that they be directed to complete all the formalities required to be completed in pursuance of Agreement dated 25.04.2005 for sale of the premises in question in respect of the suit flat. This clearly amount to seeking a direction to complete all the necessary formalities including execution of the sale deed and delivery of possession in respect of the suit flat and therefore the prayer in substance has to be treated as one for specific performance and not for injunction simplicitor.

5. In Harshad Chiman Lal Modi's case (Supra), it was held by the Hon'ble Supreme Court as under:

Section 16 CPC recognises a well established principle that actions against res or property should be brought in the forum where such res is situate. A Court within whose territorial jurisdiction the property is not situate has no power to deal with and decide the rights or interests in such property. A court has no jurisdiction over a dispute in which it cannot give an effective judgment. The proviso to Section 16, no doubt, states that though the court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the defendant. The proviso is based on a well- known maxim 'equity acts in personam'. The principle on which the maxim is bases is that the courts can grant relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam i.e. by arrest of the defendant or by attachment of his property.

The proviso to Section 16 is an exception to the main part of the section which cannot be interpreted or construed to enlarge the scope of the principal provision. I would apply only if the suit falls within one of the categories specified in the main part of the section and the relief sought could entirely be obtained by personal obedience of the defendant.

6. In Harshad Chiman Lal Modi's case (Supra) also the plaintiff had entered into a Flat Buyer Agreement with the defendant for purchasing a flat situated in Gurgaon. The Hon'ble Supreme Court in that case has categorically held that the jurisdiction to entertain a suit relating to immovable property situated outside the jurisdiction of this Court would lie only at a place where immovable property is situated. Relying upon the judgment of the Supreme Court in the said case, I am of the considered view that this Court does not have the territorial jurisdiction to try the present suit because the flat agreed to be purchased by the plaintiffs is situated in Faridabad beyond the territorial jurisdiction of this Court. Hence the instant application (IA No. 6848/2007 ) succeeds. However in view of provision contained in Order 7 Rules 10 and 10A CPC, the plaint has to be returned to the plaintiff for presenting it before the competent court.

7. The counsel for the plaintiffs has, at this stage, submitted that the plaint along with original documents may be returned to him to enable the plaintiffs to file the same before the Court of District Judge at Faridabad.

8. Having regard to the circumstances of the case and the submissions made by the learned Counsel for the parties, the plaint Along with the original documents is ordered to be returned to the plaintiffs within a week's time after retaining the authenticated copies of the same on record. The counsel for the plaintiffs says that he has instructions from his clients present in court to submit that the plaint shall be refiled before the District Judge at Faridabad on 28.09.2007. The defendants may appear before the competent Court on the said date.

9. This suit stands disposed of accordingly.

10. Order dusty to counsels for the parties.