Kulwant Kaur vs Mrs. Amrinder Kaur & Anr.
2009 Latest Caselaw 4713 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          I.A. No. 4842/2008 in CS (OS) No. 114/2008

%                                       Decided on: 19th November , 2009

Kulwant Kaur                                                     ...Plaintiff
                       Through : Mr. Nalin Tripathi, Adv.

                       Versus

Mrs. Amrinder Kaur & Anr.                             ...Defendants
                    Through : Mr. Lalit Bhardwaj with Mr. R.N.
                              Awasthy, Advs.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        No

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         No

MANMOHAN SINGH, J.

1. This order shall dispose of the application filed by the

defendant No.1 under Order VII Rule 11of the Code of Civil Procedure,

1908 (hereinafter referred to as „CPC‟) for rejection of the plaint.

2. The suit has been filed by the plaintiff for specific

performance and permanent injunction on 21st January, 2008. The

plaintiff‟s case is based on an agreement dated 3rd September, 2002

executed between the plaintiff and the applicant/defendant no. 1 in

Albuquerque, New Mexico, USA.

3. It is contended by the defendant no. 1 that the aforesaid

CS(OS) No.114/2008 1 of 8 agreement was executed in USA and the signatories to the agreement,

i.e. the plaintiff and defendant No. 1 are also residents of USA. The

business conducted under the name and title "Residential Resorts Inc."

was also incorporated in USA.

4. The defendant no. 1 referred to Clause 3 of the agreement

wherein it is provided that all the properties except the flat located at M-

401, Green Valley Co-operative Group Housing Society, Plot No. 18,

Sector-22, Dwarka, Delhi (hereinafter referred to as the „suit property‟)

are situated at USA. He also relied upon clause 9 of the said agreement

wherein it is provided that the same shall be governed by the law of the

State of New Mexico. It is alleged that the dispute leading to the present

suit has arisen from the subject agreement which was executed in the

State of New Mexico, USA thus this Court has no territorial jurisdiction

to entertain the suit as no cause of action has arisen in India.

5. The defendant No.1 also relied upon clause 7 of the

agreement, which lays down that any action on the suit property would

be subject to execution of transfer documents to be prepared by Brig.

Jasbir Singh. It is, therefore, the basic contention of the defendant No. 1

that the rights and liabilities of parties as envisaged in the agreement

were subject to interpretation and determination in accordance with the

laws of the State of New Mexico, USA and this Court is not empowered

to adjudicate on the terms and conditions of the agreement.

6. The defendant No. 1 also submits that he had filed an

application under Order 7 Rule 11 read with Section 151 CPC for

CS(OS) No.114/2008 2 of 8 rejection of the plaint in another suit being CS(OS) No. 223/2007 titled

as „Kulwant Kaur Versus Arminder Kaur & Anr.‟ in the Court of Senior

Civil Judge, Tis Hazari Courts, Delhi for perpetual/mandatory injunction

under Section(s) 37, 38 & 39 of the Specific Relief Act, 1963 in respect

of the same suit property on the ground that the plaint did not disclose

any cause of action having arisen in India (Delhi) in favour of the

plaintiff and against the defendant. The said application under Order 7

Rule 11 was heard and disposed of on 6th February, 2008 by the Learned

Single Judge rejecting the plaintiff‟s suit on the ground that the suit was

not maintainable for want of cause of action in India.

7. It is averred in the application that the plaintiff in the present

suit obtained an ex-parte ad-interim injunction order dated 22nd January,

2008 in her favour without disclosing the pendency of the above said

suit. The defendant No.1 submits that the prayer made in the present

suit is the same which was also the subject matter of the earlier suit No.

223/2007. It is stated that the plaintiff has not challenged the above said

order dated 6th February, 2008, which has therefore attained finality and

therefore, the parties are bound by the same.

8. In the reply filed by the plaintiff, it is asserted that in the

agreement/ family settlement, it was decided that the documents relating

to the suit property be prepared and signed in USA, but the attorneys in

USA vide their letter dated 3rd September, 2002 made it clear to the

parties that transfer of real estate in India had to be done according to the

applicable laws in India. The plaintiff relied upon the reply dated 18th

CS(OS) No.114/2008 3 of 8 August, 2002 of the attorney of defendant No.1 which shows her

intentions to oust the jurisdiction of the New Mexico Court.

9. It is contended that parties even by consent cannot confer

jurisdiction on a Court which otherwise does not have jurisdiction. The

plaintiff submits that the present suit is confined to para 7 of the

Agreement/Family Settlement and from the documents filed by the

parties, it is apparent that the documents relating to transfer of the suit

property were to be prepared and executed by Brig. Jasbir Singh in

India, as per the applicable laws on behalf of defendant No.1. The

plaintiff has allegedly performed her part of the contract and thus filed

the present suit for specific performance of the contract of the property

which is situated within the jurisdiction of this court.

10. It is further submitted that since the property detailed in para

7 of the agreement dated 3rd September, 2002 is situated in Delhi and the

flat in question is governed by defendant No.2 which has its office in

Delhi and the dispute/cause of action between the plaintiff and the

defendant No. 1 arose in Delhi when Brig. Jasbir Singh refused to act in

terms of the agreement dated 3rd September, 2002, this Court has the

jurisdiction to decide upon and enforce the agreement in view of Section

16 and 20 of the Civil Procedure Code.

11. Learned counsel for the plaintiff submits that the plaintiff has

disclosed facts as regards the suit for injunction filed before the learned

Civil Judge in the plaint and had also provided a copy of the status quo

orders passed in the present suit to the learned Civil Judge but the

CS(OS) No.114/2008 4 of 8 learned Civil Judge proceeded to pass orders on the application filed by

the defendant no. 1 under Order 7 Rule 11, thereby rejecting the

plaintiff‟s suit. The plaintiff urged that the order passed by the learned

Civil Judge is not binding on this Court as the learned Civil Judge

proceeded to decide the application filed by the defendant no. 1, being

aware at that time of the orders dated 22nd January, 2008 passed by this

Court. The plaintiff submits that she has challenged the said order in a

Court of competent jurisdiction.

12. The defendant No.1 reiterated that the plaintiff had not only

contested the defendant‟s application under Order 7 Rule 11 in Suit No.

223/2007, but had also obtained an ex-parte ad-interim injunction order

dated 22nd January, 2008 granted by this court directing the defendant to

maintain status quo in respect of the suit property till the next date of

hearing.

13. Learned counsel for the defendant No.1 states that defendant

No.1 has no knowledge about any challenge to the order passed by the

learned Civil Judge as no notice of any such challenge has been received

by the defendant No.1.

14. From the bare reading of clause 9 of the agreement entered

into between the parties on 3rd September, 2002, it is clear that the said

agreement was intended by the parties to be governed by the law of the

State of Mexico. Clause 7 of the agreement stipulates that the suit

property will be transferred to the plaintiff by the defendant and the

necessary documents transferring her right, title and interest shall be

CS(OS) No.114/2008 5 of 8 prepared by Brig. Jasbir Singh.

15. The defendant relied upon the case of 'Shriram City Union

Finance Corporation Ltd. Vs. Rama Mishra' reported in (2002) 9

SCC 613, to contend that where two or more courts have jurisdiction to

try a suit, parties can by an agreement choose one of such courts for

adjudication of their disputes. It was observed in this case that if there is

such an express agreement, the suit filed in a different court would be

invalid. He further relied upon 'Kitec Industries (India) Ltd. Vs.

Unicor Gmbh Rahn Plastmaschinen & Anr.' reported as 78 (1999)

DLT 38, wherein this court has laid down that the parties under the

contract have freedom to choose the law, venue and mode of resolving

their disputes. It was held that the cause of action contemplated under

Order 7 Rule11 of the Code will necessarily be the cause of action or the

ground giving rise to the plaintiff‟s right which is enforceable according

to Indian Laws by Indian Courts in India and where the Court is not

competent to adjudicate, no suit will lie before it.

16. In the case of Harsh Chiman Lal Modi Vs. DLF Universal

Ltd. & Anr. reported as JT 2005 (8) SC 561, it has been held by the

Apex Court that where the case relates to specific performance of an

agreement of immovable property and for possession of plot, it will be

covered by the main part of Section 16 of CPC. It was made clear that

neither the proviso to Section 16 would get attracted nor Section 20

would apply as Section 16 deals with such cases and jurisdiction of

competent court where such suits can be instituted. Under the said

CS(OS) No.114/2008 6 of 8 provision, a suit can be instituted where the property is situated. No

court other than the court where the property is situated can entertain

such a suit.

17. The case of Laxman Prasad Vs. Prodigy Electronics Ltd &

Anr. reported in (2008) 1 SCC 618 has been relied upon to support his

contention that where the terms and conditions of the contract are agreed

to be interpreted in accordance with some foreign court, such stipulation

does not oust the jurisdiction of Indian courts within whose territorial

jurisdiction the cause of action had wholly or partly arisen. It was

observed by the Supreme Court that there is no doubt that the suit could

have been instituted in a foreign court as well but that would not take

away the jurisdiction of the Indian court where a part of the cause of

action has arisen.

18. In the instant case, since the agreement relates to the property

situated at Dwarka, Delhi, this court has the jurisdiction to try the

present suit. The Supreme Court has made it clear that where the case

relates to specific performance of the contract and possession of

immovable property, a suit will be instituted at the place where the

property is situated under Section 16 of CPC. The power to reject the

plaint has to be exercised cautiously and sparingly and the benefit of

doubt must go to the plaintiff. It has been held in the case of Patel

Roadways Vs. Prasad Trading Company; AIR 1992 SC 1514 that it

is not open to the parties to confer jurisdiction by agreement on any

court which did not otherwise possess the same under Section 20 of

CS(OS) No.114/2008 7 of 8 Code of Civil Procedure.

19. No doubt the parties by agreement may choose the court for

adjudication of their disputes but that will not oust the jurisdiction of the

court where the property is situated. Section 20 of the Code is a

residuary provision which covers only those cases which do not fall

within the limitation of Sections 15 to 19 of the Code of Civil Procedure.

The cause of action has also arisen in Delhi as the parties failed to

transfer the property situated at Delhi and the suit clearly relates to

specific performance of the agreement for transfer of the property. Prima

facie, therefore, the suit appears to be maintainable and the benefit goes

to the plaintiff.

20. In my view, therefore, although the court at New Mexico,

USA has the jurisdiction to deal with the present dispute, it cannot be

said that the jurisdiction of this court is barred. No case has been made

out by the defendant No.1 for rejection of the suit. In the result, the

application of the defendant No.1 is dismissed.

CS(OS) No.114/2008

List on 15th January, 2010 before Joint Registrar for

admission/denial of documents.

MANMOHAN SINGH, J.

NOVEMBER 19, 2009
nn




CS(OS) No.114/2008                                                        8 of 8