M/S. Apostle Institute For ... vs Mohan Das
2013 Latest Caselaw 3482 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                            F.A.O. No.317 of 2013

                                          Decided on : 7th August, 2013

M/S. APOSTLE INSTITUTE FOR TECHNOLOGY FOR
WOMEN & ANR.                              ...... Appellants
               Through: Mr. Rajiv K. Garg & Ms. Kavita Rawat,
                        Advocates.

                         Versus

MOHAN DAS                                            ...... Respondent

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

C.M. No.12161/2013 (for exemption)

Exemption allowed, subject to the deficiency being rectified.

The application stands disposed of.

F.A.O. No.317/2013 & C.M. No.12160/2013 (for stay)

1. This is an appeal filed by the appellants under Order 43 Rule 1

CPC against the order dated 6.7.2013 passed by the learned Additional

District Judge in C.S. No.203/2011 by virtue of which the application of

the appellants under Order VII Rule 10 read with Section 151 CPC for

rejection of the plaint, was dismissed.

2. I have heard Mr. Rajiv Garg, learned counsel for the appellants and

have gone through the record. The main contention of the learned

counsel for the appellants is that no part of cause of action has arisen in

Delhi as the appellant is a proprietor of a firm having its office in

Dwarka. The appellant, who had entered into an agreement, is a society

duly registered at Dehradun having hostel facilities for students studying

in Institute at Greater Noida. It is alleged that no services were ever

provided by the respondent to the Institution of the appellant in Delhi.

The job was to be done at Greater Noida and no part of cause of action

had arisen in Delhi. The agreement was signed in Greater Noida and,

therefore, Delhi court does not have the jurisdiction. The

appellant/defendant's application under Order VII Rule 10 CPC was

dismissed by the trial court. The learned counsel in support of his

submissions has also placed reliance on a Division Bench judgment of

this court passed in case titled Arinits Sales Pvt. Ltd. vs. Rockwell Plastic

Pvt. Ltd. & Ors.; 149 (2008) DLT 123 (DB) wherein the order returning

the plaint has been upheld. On the basis of the said judgment the learned

counsel has contended that the facts of the case are same and accordingly

in the present case also the application ought to have been allowed.

3. I have gone through the impugned order as well as the record and

the aforesaid judgment. There is no dispute about the fact that under

Order VII Rule 10 CPC the court has ample power to return the plaint in

case it does not have the jurisdiction to try the same. The jurisdiction to

entertain the plaint is given in Section 20 of the Evidence Act which

reads as under :-

"20 Admissions by persons expressly referred to by party to suit.- Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions."

4. A perusal of the aforesaid Section would clearly show that in order

to have the territorial jurisdiction, the plaintiff must aver in his plaint that

either the defendant is residing within the territorial jurisdiction of the

court concerned or is working for gain or the cause of action either in part

or in full has arisen within the jurisdiction of the said court.

5. In the instant case, the respondent/plaintiff had filed a suit for

recovery of `15 lacs approximately against the appellants/defendants on

account of certain services having been provided. Paragraph 18 of the

plaint is very material wherein the averments regarding the territorial

jurisdiction have been made, which reads as under :-

"18. That the defendant No.1 had its corporate and principal office at Malviya Nagar, Delhi at the time of execution of the Memorandum of Understanding. All the payments towards the services availed by the defendants was made payable at New Delhi. Part payment received by the plaintiff has been deposited in its Delhi account. Both the plaintiff and the defendants have their respective offices at Delhi. In view of the above, this Hon'ble Court has the requisite territorial jurisdiction to try and entertain the present suit."

6. At the stage of rejection of the plaint, the court has to see only the

averments made in the plaint and the documents relied upon. It does not

have to see any other document filed by the defendants for the purpose of

deciding the credibility and genuineness of the averments or the

documents which have been placed on record by the opposite side. If this

exercise is done then para 18 of the plaint would clearly show that the

Delhi court had the jurisdiction because the respondent is specifically

saying that the appellant/defendant No.1 has its corporate and principal

office at Malviya Nagar at the time of execution of the memorandum of

understanding. The payments towards the services availed of by the

appellant/defendant were made payable at New Delhi. Part payment was

received by the respondent/plaintiff and deposited in Delhi, therefore, it

can by no stretch of imagination be said that neither the part of cause of

action had arisen in Delhi nor the appellant/defendant was having a

corporate or principal office at Malviya Nagar at the time when the suit

was being filed. This is the defence of the appellant/defendant that its

corporate office is in Dehradun which has to be proved during the course

of trial. The learned trial court has rightly rejected the application and

observed that these are only tentative findings and the question of the

court having territorial jurisdiction is a mixed question of fact and law

which can be decided only after parties are given an opportunity to

adduce their respective evidence. It has also been observed that this

finding which has been arrived at by the trial court prima facie should not

be treated as a finding returned on merits. All these facts which have

been observed by the learned trial court clearly show that the trial court is

cognizant of its duties while dealing with the question which is sought to

be raised by the appellant/defendant with regard to the return of the

plaint. The appellant is trying to take this court on a voyage to determine

the genuineness, correctness and the falsity of the averments made in para

18 of the plaint with regard to the territorial jurisdiction which cannot be

permitted to be done.

7. I accordingly, feel that there is no merit in the appeal filed by the

appellants; therefore, the appeal is dismissed.

V.K. SHALI, J.

AUGUST 07, 2013 'AA'