M/S Bab Vishwanath Buildcon Pvt ... vs Shiv Shankar Mishra
2013 Latest Caselaw 3689 Del

36# $~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) 1702/2011

                                          Decided on: 22nd August, 2013

M/S BAB VISHWANATH BUILDCON PVT LTD      ..... Plaintiff
                 Through: Mr. Mayank Wadhwa, Advocate.

                          versus

SHIV SHANKAR MISHRA                                ..... Defendant
                 Through:             None.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. On the last date of hearing learned counsel for the Defendant had

stated that he had already addressed arguments, though before the

predecessor of this Court and does not wish to re-argue the matter.

2. Today none is present on behalf of the Defendant. Since learned

counsel for the Defendant had neither cooperated in the admission/denial of

the documents nor is cooperating in hearing of the preliminary Issue Nos. 4

and 5 for which the matter is fixed for today, this Court has proceeded to

decide the two issues after hearing the learned counsel for the Plaintiff,

perusing the plaint and the written statement and the judgments on behalf of

the parties placed on record. The two preliminary issues Nos. 4 and 5 as

framed vide order dated 19th July, 2012 are as under:

"4. Whether this Court does not have the territorial jurisdiction under Section 16 of the CPC to entertain the present Suit? (OPD)

5. Whether the present suit is not maintainable under Order VII Rule 11 (a) of the CPC? (OPD)"

3. As regards the territorial jurisdiction the case of the Defendant is that

since the present suit relates to immovable property which is situated in

Rajasthan, thus this Court has no territorial jurisdiction to entertain the suit

in terms of Section 16 CPC. Reliance is placed on Church of Christ

Charitable Trust and Educational Charitable Society vs. Ponniamman

Educational Trust, 2012 (8) SCC 706, Harshad Chiman Lal Modi vs. DLF

Universal Ltd. and another, 2005 (7) SCC 791 and Mrs, Rosy Joseph and

others vs. Union Bank of India, AIR 1978 Kerala 2009. For dismissal of the

suit under Order VII Rule 11A CPC on account of no cause of action having

arisen against the Defendant, it is the case of the defendant is that even as

per the alleged Agreement, the land belonged to the alleged owners and they

only received amount through the Defendant. Since the Plaintiff failed to

comply with the terms of the alleged forged and fabricated agreement, no

cause of action arises against the Defendant herein. [ See Saleem Bhai and

others vs. State of Maharashtra and others, 2003 (1) SCC 557 for the

proposition that the Court's power under Order VII Rule 11 CPC can be

invoked at any stage of suit before conclusion of trial. This is also the

prayer of the Defendant in the written statement in Para-C of the prayer

clause.]

4. Learned counsel for the Plaintiff contends that the present suit is

neither for possession nor enforcement of the Agreement to Sell of the land

in question and thus is not a suit relating to the land. The suit filed by the

Plaintiff only seeks for recovery of a sum of Rs. 10,76,881/- along with

interest thereon and damages amounting to Rs. 15 lakhs for causing loss of

reputation and goodwill of the Plaintiff Company and interest pendent elite

with costs. Thus the jurisdiction to try the suit will be determined in terms

of Section 20 CPC. Since the first Agreement to Sell dated 28th September,

2010 was executed between the parties at Delhi and the amount was paid by

a bank draft which was payable at Delhi, this Court has territorial

jurisdiction to entertain the suit. In the written statement the Defendant has

not disputed the payment made by the Plaintiff or the Bank Draft being

payable at Delhi. Hence this Court is competent to try the suit. Reliance is

placed on Harshad Chiman lal Modi (Supra); Adcon Electronics Pvt. Ltd.

vs. Daulat and another, 2001 (7) SCC 698 and Ansal Housing and

Construction Ltd. vs. AJB Developers (P) Ltd., Appeal No. 341/2009

decided on 29th May, 2012. As regards the cause of action, it is stated that

the Plaintiff has placed on record the Power of Attorney issued by the land

owners of the property in favour of the Defendant pursuant to which the

Plaintiff entered into an Agreement to Sell with the Defendant. The

averments in the plaint clearly disclose the cause of action against the

Defendant who had received the money from the Plaintiff and has not

denied this fact hence the suit cannot be dismissed on this count as well.

Finding on issue No.4

5. The present suit inter alia are for passing a decree for a sum of Rs.

10,76,881/- along with the interest, damages for loss of reputation and

goodwill, interest pendentelite and costs. Section 16 CPC provides as under:

"16. Suits to be instituted where subject-matter situate.- Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment,

Shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain."

6. Thus the suit which seeks either the recovery or partition or

determination of any right or interest or compensation for wrong to

immovable property or for foreclosure, sale or mortgage is required to be

filed where the property is situated. In the present case the Plaintiff has

made no prayer with regard to the recovery of the land or determination of

his right or interest in the immovable property nor the suit seeks

compensation for wrong to the immovable property. Hence the territorial

jurisdiction would be covered under Section 20 CPC and the suit can be

filed where the cause of action wholly or in part arises. The Hon'ble

Supreme Court while dealing with an issue as to what is a suit for land in

Adcon Electronics Pvt. Ltd. (supra) held:

15. From the above discussion it follows that a "suit for land" is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a "suit for land" or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a "suit for land". We are in respectful agreement with the view expressed by Mahajan, J. in Moolji Jaitha's case.

16. In a suit for specific performance of contract for sale of immovable property containing stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs:

"22. Power to grant relief for possession, partition, refund of earnest money, etc.-(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub- section (1) shall be granted by the court unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plant, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains relief of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land of other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.

18. In the instant case the suit is for specific performance of agreement for sale of the suit property wherein relief of delivery of the suit property has not been specifically claimed as such it cannot be treated as a "suit for land".

19. We cannot also accept the contention of Mr. Chitale that the suit is for acquisition of title to the land and is a "suit for land". In its true sense a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land as such is not the subject-matter of the suit."

7. The decision in Harshad Chiman Lal Modi (supra) has no application

to the facts of the present case as the prayer in the said suit was for specific

performance of the agreement, possession of property and permanent

injunction. Thus the suit in the said case was a suit for land. As per the

averments in the plaint the first Agreement to Sell between the Plaintiff and

the Defendant was entered into at Delhi on 26th September, 2010 and the

Defendant assured that pursuant to the agreement he will get the sale deeds

executed in favour of the Plaintiff by the actual owners within seven months

of the Agreement to Sell dated 26th September, 2010. It is on this assurance

that the Plaintiff agreed to purchase the land @4.45 lakhs per bigha and paid

Rs. 1.50 lakhs as earnest money at the time of Agreement to Sell dated 28 th

September, 2010. Thus the execution of the Agreement to Sell being at

Delhi provides for a part of cause of action at Delhi and this Court has

territorial jurisdiction to entertain the present suit as held in A.B.C. Laminart

Pvt. Ltd. vs. A.P. Agencies, Salem, 1989 (2) SCC 163:

"12. A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence

which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.

13. Under Section 20(c) of the CPC subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier Section 7 of Act 7 of 1888 added Explanation III as under:

Explanation III.- In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely:

(1) the place where the contract was made ;

(2) the place where the contract was to be performed or performance thereof completed ;

(3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.

14. The above Explanation III has now been omitted but nevertheless it may serve a guide. There must be a connecting factor.

15. In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the law of contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause

of action and a suit in respect of the breach can always be filed at the place where the contract should have performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors."

8. Since this Court has the territorial jurisdiction to entertain the suit, the

issue No. 4 is decided against the Defendant and in favour of the Plaintiff.

Finding on issue No.5

9. The claim of the Defendant in the written statement is that the role of

the Defendant was only to show the land and nothing else. Neither any

liability against the Defendant arises nor the Plaintiff has any cause of action

if the entire body of the plaint and the documents are scrutinised. A perusal

of the Agreement to Sell dated 28th September, 2010 shows that the same

was executed between the Defendant as the first party and seller and Shri

Rupesh Kumar, Director of the Plaintiff as the Second Party and Purchaser.

The agreement claimed that the First Party, that is, the Defendant had

purchased the land, had the ownership and possession of the suit land and no

other person has any right or title on the property. Further the money was

also received by the Defendant by way of bank drafts. Hence the claim of

the Defendant that no cause of action arises him and the suit is required to be

dismissed under Order VII Rule 11A CPC is also liable to be rejected.

Hence the Issue No. 5 is also decided against the Defendant and in favour of

the Plaintiff.

10. Since both the preliminary issues are decided against the Defendant

and the suit is required to be proceeded further.

11. List of witnesses be filed in four weeks. Evidence by way of affidavit

of the Plaintiff's witnesses be filed within 12 weeks. List before the learned

Joint Registrar on 15th January, 2014 for fixing the dates of trial.

AUGUST 22, 2013                                       (MUKTA GUPTA)
vn                                                        JUDGE.