Delhi High Court
Hansa Place Art Furnitures ... vs Dilip Kumar Sharma on 25 February, 2019
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 25.02.2019
C.R.P. 56/2019
HANSA PLACE ART FURNITURES PRIVATE LTD
..... Petitioner
Through: Mr. Ronak Karanpuria, Advocate
versus
DILIP KUMAR SHARMA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
C.M. No. 8942/2019 (for exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
C.R.P. 56/2019 & CM No. 8941/2019 (for stay)
3. The impugned order dated 03.11.2018, passed by the Court of
Civil Judge, West District, Tis Hazari Courts, Delhi dismissing
the application of the petitioner/defendant under Order VII Rule
11 of the Code of Civil Procedure (CPC), is the subject matter
of challenge in this revision petition.
4. The brief facts of the case are that the respondent/plaintiff has
filed a suit for recovery of Rs.1,08,000/- with interest against
the petitioner on account of selling them wooden
items/furniture. The respondent is carrying its business of
manufacturing and selling the wooden items/furniture at B-60,
C.R.P 56/2019 Page 1 of 5
Second Floor, W.H.S. Kirti Nagar, New Delhi-15. The
petitioner filed its application under Order VII Rule 11 CPC on
the ground that the contract between the parties was entered into
at Udaipur; they placed the order with the respondent at Hiran
Magri, Udaipur for supplying of wooden items and furniture;
they made the payment to the respondent vide cheque bearing
No.980581 dated 13.04.2014 at the said place; and subsequent
payments were made to the respondent at Udaipur either by way
of cash or NEFT bank transfer. The petitioner/defendant
pleaded that since cause of action accrued at Udaipur and no
cause of action has accrued in Delhi, the Courts in Delhi have
no jurisdiction to try the suit.
5. It is a well settled principle of law that while deciding an
application under Order VII Rule 11 of CPC, the averments
made in the plaint are germane and plea taken by the defendant
in the written statement would be wholly irrelevant at that stage.
6. In para 3 of the plaint, the respondent pleaded "the defendant
company approached the plaintiff with his
representative/Director to supply the wooden items/furniture in
the month of April 2014 at the above said office of the plaintiff
situated at Kirti Nagar, Delhi-15". The respondent has also
pleaded that they have supplied goods to the petitioner vide Bill
dated 22.05.2014 for Rs.2,64,134/-, bill No.407 dated
02.06.2014 for Rs.2,20,256/-, bill No.408 for Rs.1,25,052/-, bill
No.409, dated 14.06.2014 for Rs.1,69,371/- and same were
C.R.P 56/2019 Page 2 of 5
received by the petitioner through its representative from their
office. The above said pleadings of the respondent
unambiguously indicate that a part of cause of action has
accrued within the local limits of Delhi which certainly provides
privilege to the respondent to file the suit in the Courts of Delhi.
7. Very recently in Chhotanben and Another. Vs. Kirtibhai
Jalkrushnabhai Thakkar and other, (2018) 6 SCC 422, the
Hon'ble Supreme Court has held that what is relevant for
answering an application under Order VII Rule 11(d) CPC, is to
examine the averments made in the plaint as a whole. The
defence available to the defendants or plea taken by them in the
written statement or application cannot be the basis to decide
the application under Order VII Rule 11 CPC. Para 15 of the
said judgment reads as under: -
"15. What is relevant for answering the matter in
issue in the context of the application under Order 7
Rule 11(d) CPC, is to examine the averments in the
plaint. The plaint is required to be read as a whole.
The defence available to the defendants or the plea
taken by them in the written statement or any
application filed by them, cannot be the basis to
decide the application under Order 7 Rule 11(d).
Only the averments in the plaint are germane."
8. In Ramesh B. Desai and Others. Vs. Bipin Vadilal Mehta
and Others, (2006) 5 SCC 638, the Hon'ble Supreme Court,
while considering Order VII Rule 11 CPC, held "16............ to
C.R.P 56/2019 Page 3 of 5
attract application of Order 7 Rule 11 CPC. The principle is,
therefore, well settled that in order to examine whether the
plaint is barred by any law, as contemplated by clause (d) of
Order 7 Rule 11 CPC, the averments made in the plaint alone
have to be seen and they have to be assumed to be correct. It is
not permissible to look into the pleas raised in the written
statement or to any piece of evidence.........."
9. The Hon'ble Supreme Court in Saleem Bhai and Ors. Vs.
State of Maharashtra and Ors., 2003 (1) SCC 557, held that
"the trial court can exercise its power under Order 7 Rule 11
CPC 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 and for the said purpose averments in the
plaint are germane and the pleas taken by the defendant in the
written statement would be wholly irrelevant at that stage."
10. While considering the present facts as pleaded in the plaint on
the touchstone of the law, laid down by the Hon'ble Supreme
Court, it is clear enough that part of the cause of action has
accrued to the respondent/plaintiff against the petitioner in
Delhi. The determination of the jurisdiction is a mixed question
of law and fact, which can be adjudicated only after the parties
adduce their respective evidence.
11. In view of the discussions, I do not find any illegality or
infirmity in the impugned order. Accordingly, the petition along
C.R.P 56/2019 Page 4 of 5
with application, being C.M. No. 8942/2019, is dismissed with
no order as to costs.
VINOD GOEL, J.
FEBRUARY 25, 2019
"sandeep"
