Delhi High Court
Manish Kumar vs Promod Kumar & Anr. on 24 November, 2015
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 222/2011 & CM No. 8970/2011
MANISH KUMAR ..... Appellant
Through: Mr Sukhbir Singh, Adv.
versus
PROMOD KUMAR & ANR ..... Respondents
Through: Mr Naveen Kr. Chaudhary,Adv. for R-1.
Mr Anil Grover & Mr Mishal Vij, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 24.11.2015
1. This is a matter in which the trial court, vide the impugned judgement,
has returned the plaint to the appellant/ plaintiff, on the ground that it did not
have the territorial jurisdiction in respect of the matter. The appellant/
plaintiff had filed a suit for recovery in the sum of Rs. 7.48 lacs.
Respondent no.1/ defendant no.1, who is the President of the Co-operative
Group Housing Society, had, according to appellant no.1/ plaintiff no.1,
induced her husband to invest a sum of Rs. 5.50 lacs; albeit on a refundable
basis.
1.1 It is the case of the appellant/ plaintiff that Respondent no.1/
defendant no.1 had represented that he would refund the amount in case the
plot was not allotted, along with interest at the rate of 12% per annum.
2. It is not disputed before me by counsels for the appellant / plaintiff
and respondent no.1/ defendant no.1, that respondent no.2/ defendant no.2
has returned a sum of Rs. 12.70 lacs to Respondent no.1/ defendant no.1.
This refund was made on 20.05.2005 vide cheque bearing no. 076169,
drawn on IDBI Bank Ltd., Panchkula, Haryana. My attention in this behalf
has been drawn by counsel for respondent no.1/defendant no.1 to, paragraph
9 of the written statement under the heading reply on merits.
3. The appellant/ plaintiff being aggrieved by the fact that money
invested by them was not returned, instituted a suit for recovery from which
the instant appeal arises.
3.1 As noticed above, the trial court, however, came to the conclusion that
it did not have the territorial jurisdiction to try and entertain the suit and
accordingly, ordered return of plaint.
4. Paragraph 15 of the plaint reads as follows:
".... That this Hon'ble Court has the jurisdiction to
entertain and adjudicate the present suit since the payment of
loan/ invested amount was paid to and received by the
Defendant No. 1 at Delhi. The cause of action to file the suit
also arose at Delhi when the Defendant No.1 had requested
for the said loan amount from the plaintiff at Delhi and when
the said loan amount was paid at Delhi by the plaintiff. Thus,
this Hon'ble Court has the jurisdiction to entertain and decide
the suit...."
5. According to me, a perusal of paragraph 15 of the plaint would
suggest that it was a mixed question of fact and law, which could not have
been decided without permitting the appellants to lead evidence in the
matter.
5.1 Besides, at this stage, the trial court ought to have accepted the
assertions made by the appellant/ plaintiff, without embarking upon an
inquiry as to the correctness of the averments made in the plaint. [See
observations made in judgement dated 06.11.2015, passed in FAO
214/2015, titled: ICICI Bank Ltd. Vs. Astha Kumar and Anr. in paragraph
8.1]. The same being apposite, are extracted hereafter :-
"......8.1. ......In ascertaining as to whether or not the
concerned court has territorial jurisdiction, the court should
take the facts pleaded in support of the cause of action into
consideration without embarking upon an enquiry, at that
stage, as to the correctness or otherwise of the facts so stated.
In this context, the following observations of the Supreme
Court made in Oil and Natural Gas Commission vs Utpal
Kumar Basu & Ors. (1994) 4 SCC 711 at page 717, in
paragraph 6 being apposite, are extracted hereinafter:
"....6. It is well settled that the expression "cause of
action" means that bundle of facts which the petitioner
must prove, if traversed, to entitle him to a judgment in
his favour by the Court. In Chand Kour v. Partab Singh
Lord Watson said:
"... the cause of action 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. It refers entirely to the
ground set forth in the plaint as the cause of
action, or, in other words, to the media upon
which the plaintiff asks the Court to arrive at a
conclusion in his favour."
Therefore, in determining the objection of lack of
territorial jurisdiction the court must take all the facts
pleaded in support of the cause of action into
consideration albeit without embarking upon an
enquiry as to the correctness or otherwise of the said
facts. In other words the question whether a High Court
has territorial jurisdiction to entertain a writ petition
must be answered on the basis of the averments made
in the petition, the truth or otherwise whereof being
immaterial. To put it differently, the question of
territorial jurisdiction must be decided on the facts
pleaded in the petition. Therefore, the question whether
in the instant case the Calcutta High Court had
jurisdiction to entertain and decide the writ petition in
question even on the facts alleged must depend upon
whether the averments made in paragraphs 5, 7, 18, 22,
26 and 43 are sufficient in law to establish that a part of
the cause of action had arisen within the jurisdiction of
the Calcutta High Court...."
(Emphasis is mine)
6. Accordingly, the impugned judgement is set aside. The parties and
their counsels will appear before the trial court, on 09.12.2015. The trial
court will recommence the proceedings in the suit from the point at which it
is presently positioned.
7. The appeal and the application are, accordingly, disposed of.
RAJIV SHAKDHER, J
NOVEMBER 24, 2015
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