Delhi High Court
Hem Chand Sharma & Anr vs M/S Innovative Textiles Ltd And ... on 26 March, 2015
Author: Sanjeev Sachdeva
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 17th March, 2015
Judgment Delivered on: 26th March, 2015
+ FAO(OS) 32/2015
HEM CHAND SHARMA & ANR .....Appellants
versus
M/S INNOVATIVE TEXTILES LTD AND ANR. ....Respondents
Advocates who appeared in this case:
For the Petitioner: Mr Sanjay Katyal, Advocate
For the Respondents: Mr Kirti Uppal, Sr Advocate with Salar M Khan,
Advocates
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
1. The appellants have filed the present appeal impugning the
judgment dated 15.10.2014 whereby the application filed by the
appellants under Order 7 Rule 10 & 11 of the Code of Civil
Procedure seeking return/rejection of the plaint has been dismissed.
2. The respondents have filed a suit against the appellants for
recovery of a sum of Rs. 2,20,50,000/-. As per the
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respondents/plaintiffs, in terms of an Agreement to Sell dated
28.09.2006, the respondent No.1 paid a sum of Rs. 2,20,50,000/- to
Appellant No. 1/defendant No.1 as earnest money towards sale
consideration of Rs. 7.35 Crores qua sale of a property measuring 61
bighas and 5 biswas of land situated at village Bather, Pargana Doon,
Tehsil Kasauli, District Solan, Himachal Pradesh.
3. On completion of the pleadings, the Court framed the following
issues:
"(i) Whether the Delhi Court has the jurisdiction to try
and decide the present suit? OPP
(ii) Whether the suit is liable to be rejected under
Order 7 Rule 11(a) CPC? OPD
(iii) Whether the plaintiff is entitled to a decree of
Rs2,20,50,000/-? If so, to what effect? OPP
(iv) Whether the plaintiff is entitled to compound
interest at the rate of 18% per annum with effect
from 28.09.2006? If so, on what amount and for
what period? OPP
(v) Relief."
4. The appellants filed the subject application under Order VII
Rule 10 and Order VII Rule 11 CPC. It is contended that the present
suit under Order XXXVII CPC was not maintainable as there was no
liability, debt or liquidated demand which was owed by the appellants
to the respondents. It is contended that refund of the earnest money
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was dependent upon various conditions as laid down in the agreement
to sell and since the respondent has not fulfilled the same, the said
amount was not payable and as such the suit was not maintainable
under Order XXXVII CPC. It is contended that the plaint fails to
disclose any cause of action which would entitle the plaintiff to a
summary judgment.
5. It is further contended that the Court had no territorial
jurisdiction to entertain this suit inasmuch as the property is situated
outside the territorial limits of the Court and no part of the cause of
action had arisen within the territorial limits of the Court. It is
contended that the agreement to sell dated 28.09.2006 and the
supplementary agreement dated 17.10.2006 had been executed
beyond the territorial limits of the Court.
6. Per contra, the contention of the respondent is that the appellant
had admittedly received the sum of Rs 2,20,50,000/- and the suit was
for recovery of the said amount and as such the suit maintainable.
7. With regard to the issue of territorial jurisdiction, it is
contended that the suit was not for specific performance of the
agreement to sell but was for refund of money and the discussions
between the parties had taken place in Delhi and even the
supplementary agreement dated 17.10.2006 was executed in Delhi
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within the territorial limits of the Court and part of cause of action had
arisen in Delhi.
8. Having heard the learned counsel for the parties, we are of the
view that the impugned order does not suffer from any infirmity and
there is no merit in the contentions raised by the appellant.
9. No doubt, that the respondents have filed a suit invoking the
summary jurisdiction under Order XXXVI CPC but the perusal of the
records show that the appellants have been granted leave to defend,
Written Statement has been filed, issues have been framed and the
matter has been set down for trial. An issue has been specifically
framed as to whether the plaintiff is entitled to a decree in the sum of
Rs. 2,20,50,000/-. Further, it cannot be said that the suit on its own
showing is not maintainable or that there is no cause of action
disclosed in the plaint. It is averred in the plaint that the said amount
has been paid to the defendants and they are liable to refund the same.
10. With regard to the territorial jurisdiction, the learned Single
Judge has noticed the averments of the respondent in the plaint that
various meetings took place between the parties at Delhi prior to the
entering into agreement to sell dated 28.09.2006. It is averred that
the sale consideration was paid by a cheque issued on a bank in Delhi.
The agreement dated 17.10.2006 is also stated to have been executed
between the parties at Delhi. The learned Single Judge has noticed
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from paragraphs 18 to 20 of the plaint that the averments in the plaint
disclose cause of action.
11. It is no longer res integra that it is only the averments in the
plaint and the supporting documents filed by the Plaintiff that have to
be examined for deciding an application under Order VII Rule 10
CPC and Order VII Rule 11 CPC. The defence raised by the
defendants is not to be considered at this stage.
12. No doubt, the appellants/defendants in their written statement
have denied the averments made in the plaint and also their liability
but firstly the written statement is not to be considered at this stage
and secondly that is a disputed question of fact which would be settled
after trial. At this stage, all that has to be examined is whether the
plaint discloses a cause of action or not.
13. The learned Single Judge, on examination of the plaint, has
found that the plaint does disclose a cause of action and does prima
facie show that part of the cause of action has arisen within the
territorial limits of this Court. On examination of the plaint, we do
not find any infirmity in the finding returned by the learned Single
Judge that the plaint does disclose a cause of action.
14. In view of the above, we find no infrimity in the impugned
order, we do not find any merit in the appeal. The appeal is,
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accordingly, dismissed leaving the parties to bear their own costs. We
make it clear that we have not examined the dispute between the
parties on merit and nothing stated herein above shall affect the merits
of the case of either of the parties.
SANJEEV SACHDEVA, J.
MARCH 26, 2015 BADAR DURREZ AHMED, J.
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