Devendra Kumar Mishra vs Agarwal Associates (Promoters) ...
2014 Latest Caselaw 3904 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Order delivered on: August 25, 2014

+                       CS(OS) 1618/2012

       DEVENDRA KUMAR MISHRA                       ..... Plaintiff
                   Through Mr.Nalin Tripathi, Adv.

                        versus

       AGARWAL ASSOCIATES (PROMOTERS) LTD. ..... Defendant
                   Through Mr.Dinesh Kr. Gupta, Adv. with
                            Mr.Vidit Gupta, Adv.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. By this order I propose to decide I.A. No. 14783/2013 filed by the defendant under Order 7 Rule 11 read with Section 151 CPC for seeking rejection of the plaint and I.A. No. 10557/2012 filed by the plaintiff under Order 39 Rules 1 & 2 CPC.

2. Plaintiff had filed a suit for declaration and injunction against the defendant seeking a decree of declaration that demand letter dated 15th May, 2012 is illegal, unjust and improper and a decree of permanent injunction, restraining the defendant from preventing the plaintiff and his family members from using and enjoying the suit property bearing flat No. T-1, 3rd Floor, Aditya Mega Citi, Vaibhan Khand, Indrapuram.

3. Brief facts of the case are that the plaintiff booked a flat by making an initial deposit/payment of booking amount of Rs. 2,10,000/- with the defendant and he was allotted the suit property that was to be delivered within 12 months on the basis of a Builder Buyer Agreement/Allotment Agreement dated 30th March, 2007 (hereinafter referred to as the "agreement").

4. Vide letter dated 6th April, 2007, the defendant communicated the schedule of payment to the plaintiff wherein it was stated that a sum of Rs. 18,91,250/- was to be paid by plaintiff by 10th April, 2007 and balance Rs. 1,12,250/- alongwith Interest Free Maintenance Deposit (IFMS @24/- per sq feet) at the time of handing over possession. It is averred by the plaintiff that he made the entire payment of Rs. 19,00,000/- in respect of the suit property as detailed in Para 9 of the plaint. The same is reproduced hereunder:

"9. That the plaintiff made the entire payment in respect of the "suit property" @ Rs. 19,00,000.00 against the demand of Rs. 18,91,250.00 in the following manner:

(i) Rs. 10.00 Lacs vide cheque no. 065406 drawn on Nainital Bank Ltd., Panchkuinya Road, New Delhi.

(ii) Rs. 5.00 Lacs vide cheque no. 065413 drawn on Nainital Bank Ltd., Panchkuinya Road, New Delhi.

(iii) Rs. 4.00 Lacs vide cheque no. 065415 drawn on Nainital Bank Ltd., Panchkuinya Road, New Delhi."

5. Upon receipt of the said payments, the defendant sent a letter dated 8th May, 2008 offering possession of the suit property to the plaintiff. However on inspection of the suit property the plaintiff noticed that construction work therein was incomplete.

Subsequently, various communications took place between the parties. The defendant vide letter dated 16th June, 2011 asked the plaintiff to complete formalities and take possession by 21st June, 2011.

6. It has been stated that when the plaintiff inspected the suit property which was still incomplete and contacted the defendant, the defendant asked the plaintiff to make the balance payment and only then would the defendant complete the suit property and make it ready to use. The plaintiff made full and final payment towards the cost of the suit property and vide letter dated 9th July, 2011 asked the defendant to complete the suit property and handover the possession thereof to the plaintiff.

7. As per the plaintiff, there is no outstanding payment which the plaintiff is liable to make. However, the defendant failed to handover the possession of the suit property to the plaintiff and rather issued a demand letter dated 15th May, 2012 which the plaintiff alleges to be illegal, unjust and improper. Aggrieved thereof the plaintiff filed the present suit and the interim application. The plaintiff in his application has prayed that the defendant be directed to hand over the possession of the suit property and the plaintiff not be prevented by the defendant or any other person on his behalf from the peaceful use and enjoyment of the same till disposal of suit. In reply dated 19th May, 2012 to the demand notice issued by the defendant, the plaintiff denied

the demand of the defendant. The relevant portions of the reply are reproduced as under:

"1) At the outset, I would like to mention that I had paid Rs. 40000/- extra money as charges of legal registration (Rs. 10000/-) to take care legal & interest charges (if any) on deferment of some part of installment paid by me. Therefore your claim that I have not made full payment against the unit is baseless and concocted to cover up faults & lapses on your part. It is reiterated that whatever demand letter came have been paid with extra payment of Rs. 40000/- in July 2011."

"4) Regarding your point no 1 & 3 Electricity Connection & Fixed Charge I have no problem to get the power directly from the PVVNL (UPSEB) provided your building have requisite enough provision, permission or facilitation for the same. And also you provide necessary documents, NOC for the same.

5) Regarding Sinking Fund The demand/charge is illegal and no such alleged demand letter dt 29.07.2011 was ever communicated/received to me. The provisioning in advance is illegal

6) Maintenance & Holding Charges (Point no 4 & 5) Kindly refer to clause no 10.2 of the allotment agreement wherein you were supposed to offer the possession of unit after it was ready to use, which was never the case as pointed out by me time to time and your inaction, non- reply on the same confirms your status on it. Also as per the agreement, there was requirement to execute a maintenance agreement by me which was never communicated to me, therefore the demand from retrospect is illegal & not accepted. However, after possession, I am ready to pay maintenance charges legally demanded. Holding charges are totally non

acceptable. Rather I should be compensated for delay in handover the possession.

7. Interest & legal expenses (point no 6 & 7) There is a provision to charge interest on delay/deferment of payments (if any) under clause 8 of the allotment agreement @ 9% p.a., simple rate, however due to non action/delay in delivering of possession from you have also caused heavy losses to me in the form of rental/interest cost for more than one year which has to discussed with you.

Legal charges of registration I agree to pay and the fund is already with you.

In view of the above your further allegation that I willingly delaying the process of registration and gaining time is the height of illegality and unfair act on your part. Your claim that you need money to utilize the same for your business and watch/ward the flat is baseless since delays/non-action is on your part and I am suffering heavy financial loss due to non getting the flat even paid fully since long.

Also regarding photographs enclosed with the letter, I have full doubt about the authenticity and timings of these as the flat was incomplete/non ready condition on my visits point in writing from time to time."

8. In the course of proceedings, the defendant filed the application under Order 7 Rule 11 CPC for rejection of the plaint. Both the parties have also filed short written submissions.

9. The defendant has stated in his application that this Court has no jurisdiction to try and entertain the present matter since the suit property is situated in Ghaziabad, U.P. which is outside the territorial jurisdiction of this Court. Location of the suit property has not been stated by the plaintiff in the plaint. Since the suit

property is located outside the territorial jurisdiction of this Court, this Court has no jurisdiction to entertain the present suit. The defendant in this regard has relied upon the cases of Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr. (2005) 7 SCC 791 and K.K. Mehta & Anr. v. Paras Poly Films (P) Ltd. & Ors. 2014 (143) DRJ 307 (decided on 27th March, 2014).

10. It is also stated that the plaintiff did not state the value for which the demand was made vide letter dated 15th May, 2012 and since the demand was made for approx. Rs.5,00,000/- (out of that payment of certain items were optional), which is much below the pecuniary jurisdiction of this Court and as per section 15 CPC, the suit shall be instituted in the court of lowest grade. The defendant has relied upon the case of Narinder Kumar Soni vs. M/s Sunshine Roadways 1999 RLR 201 in this regard.

11. The plaintiff has not sought the relief of possession though plaintiff is not in possession and said relief by way of specific performance of Buyers Agreement was available. The plaintiff abandoned this relief without reserving rights or seeking leave of this Court, when equal efficacious remedy in terms of Section 41

(h) of Specific Relief Act, 1963 was available. Thus, the suit is not maintainable.

12. It has been stated that the plaint has been cleverly drafted concealing the location of the suit property deliberately from the entire body of plaint. The prayer in clause (ii) is contrary to averments made in plaint. Valuation has also not been made

properly. The plaintiff abandoned the prayer of specific performance though he is not entitled for the same as he committed breaches to the terms of Buyers Agreement. The plaintiff failed to take possession despite offering vide letter dated 8th May, 2008, and made part payment belatedly in July, 2011 after more than three years. All these facts suggest malafide on the part of the plaintiff.

13. It is well settled that the Court at the stage of considering an application under Order 7 Rule 11 CPC has to examine only the plaint averments, and the list of documents filed along with the suit. Other pleas advanced by parties, including the pleadings in the written statement, have no relevancy in order to decide the present application in hand. The following decisions are necessary to be referred in this regard:

i) The Supreme Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success, (2004) 9 SCC 512, while dealing with the law relating to rejection of plaint under Order VII Rule 11 CPC, observed as follows:

"Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.

In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact.

So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars."

ii) In the case of Saleem Bhai and Ors. vs. State of Maharashtra, AIR 2003 SC 759, it was held with reference to Order VII Rule 11 CPC that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The Court can exercise the power at any stage of the suit, before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order VII Rule 11 CPC, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

iii) In the case of Popat and Kotecha Property vs. State Bank of India Staff Association, (2005)7 SCC 510, it was held as under:-

"The real object of Order VII Rule 11 of the Code is to keep out of courts irresponsible law suits."

"Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13."

14. The plaintiff in the present matter has stated that this Court has jurisdiction since the defendant resides and works for gain within the territorial jurisdiction of this Court. The agreement between the parties was signed and executed within the territorial jurisdiction of this Court and all the payments were made within the territorial jurisdiction of this Court and even the disputed demand letter was issued within the territorial jurisdiction of this Court.

15. The cause of action arose within the territorial jurisdiction of this Court. Even otherwise, the agreement between the parties discloses the jurisdiction clause that confers jurisdiction on this Court. In view thereof the defendant is estopped from raising the question of jurisdiction at this stage. If two courts have concurrent jurisdiction to try and entertain a dispute and there is an agreement that the dispute should be tried by one of the Court, the Court mentioned in the agreement has jurisdiction. The

plaintiff has relied upon cases of Hakam Singh v. M/S Gammon (India) Pvt. Ltd. 1971 (1) SCC 286 and A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem 1989 (2) SCC 163 in this regard.

16. In view of above, there is no force in the submission of defendant. The application filed by the defendant under Order 7 Rule 11 CPC i.e. I.A. No. 14783/2013 has no merit. The same is dismissed.

17. Now coming to another application filed by the plaintiff i.e. I.A. No. 10557/2012 under Order 39 Rules 1 & 2 CPC. During the course of hearing, the plaintiff has stated that in order to show his bonafide, without prejudice to his rights, he would deposit the disputed amount in this Court during the pendency of the matter.

18. The plaintiff has made a reasonable offer. Let the said amount be deposited by the plaintiff with the Registrar General of this Court within four weeks. Subject to the said deposit, the prayer made in I.A. No. 10557/2012 is allowed. In case the defendant in its evidence is able to prove that the demand is justified, the defendant would be entitled to the said amount.

19. After the deposit of the said amount by the plaintiff within four weeks, the defendant shall handover to the plaintiff the possession of the suit property i.e. flat No. T-1, 3rd Floor, Aditya Mega Citi, Vaibhan Khand, Indrapuram within four weeks thereafter.

20. Both the applications are accordingly disposed off.

CS (OS) No.1618/2012

List for framing of issues on 10th November, 2014.

(MANMOHAN SINGH) JUDGE AUGUST 25, 2014