Madras High Court
V.C.Thangamagan vs K.Ganesh on 14 August, 2024
C.R.P.(PD).No.3275 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.08.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.3275 of 2024
and C.M.P.No.17519 of 2024
V.C.Thangamagan .. Petitioner
Versus
1. K.Ganesh
2. Uma Ganesh .. Respondents
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decretal order, dated 09.02.2024 made in
I.A.No.6 of 2023 in O.S.No.1874 of 2022 (CNR No.TNCH01-007192-
2022) on the file of XVII Additional City Civil Court, Chennai and allow
this Civil Revision Petition.
For Petitioner : Mr.G.Ramadurai
ORDER
This Civil Revision Petition arises against the order passed by the
learned XVII Additional City Civil Court at Chennai in I.A.No.6 of 2023 in
O.S.No.1874 of 2022, dated 09.02.2024.
https://www.mhc.tn.gov.in/judis
2. O.S.No.1874 of 2022 was presented as an under chapter suit. It is
not in dispute that the petitioner/defendant took out an application for leave
to defend and the leave was also granted. He has filed a detailed written
statement. Thereafter, he has filed an application in I.A.No.6 of 2023
seeking for the Court to decide the preliminary issue and to reject the plaint.
This application is based on Sections 9 and 16 of the Code of Civil
Procedure. The learned Trial Judge received a counter from the
respondents/plaintiffs and dismissed the application. Against which, the
present petition is filed.
3. Heard Mr.G.Ramadurai, learned Counsel for the civil revision
petitioner.
4. Mr.G.Ramadurai would submit that_
(i) The City Civil Court does not have territorial jurisdiction to deal
with the suit as the property is situated within the jurisdiction of
Kancheepuram district;
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(ii) The suit is barred by virtue of Section 79 read with Section 18 of
the Real Estate (Regulation and Development) Act, 2016 (for brevity
'RERA Act').
5. Expanding this argument, he would submit that when an authority
has been created to deal with an issue between the developer and customer,
the appropriate remedy is only before the authority created under the RERA
Act and not before the Civil Court.
6. For decision on rejection of plaint, the cause of action has to be
decided on the basis of a reading of the plaint alone. The defence of the
petitioner/defendant is totally irrelevant for that purpose. Paragraph No.17
of the plaint specifically pleads that the respondent/plaintiff had agreed to
purchase a flat from the petitioner/defendant at Chennai. He would plead
that he had paid a sum of Rs.11,00,000/- to the petitioner/defendant in
Chennai. Apart from that, the petitioner/defendant is residing within the
jurisdiction of the City Civil Court at Kodambakkam in Chennai.
Therefore, the argument with respect to territorial jurisdiction can be put an
end since the respondents/plaintiffs has specifically pleaded that a part of
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the cause of action is within the jurisdiction of this Court. Further, a plaint
cannot be rejected for want of territorial jurisdiction. This is clear from
Section 21 of the Code of Civil Procedure. The petitioner/defendant would
have to prove when he takes a plea on objection of territorial jurisdiction
that the Court does not have jurisdiction, but also has to prove consequent
failure of justice. Section 21(1) of the Code of Civil Procedure demands
both to be satisfied. The objection should have been taken at the earliest
available opportunity. In this case, the earliest available opportunity for the
petitioner/defendant was when he filed an application for leave to defend.
This plea was not taken at that stage and therefore, it is not open to the
petitioner/defendant to raise that objection after he has enjoyed the benefit
of leave to defend being granted and after having filed a written statement
on merits of the case.
7. Insofar as the plea on Sections 79 and 18 is concerned, a mere
glance at Section 18 would show that in case the promoter fails to complete
the project or fails to give possession of an apartment as agreed upon, he
will be liable to pay to the allottee, the amount received by him for the sake
of the said apartment together with compensation. Section 18 itself
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specifically states that this remedy is “without prejudice to any other remedy
available”. This makes it clear that an option is given to the allottee either
to proceed under the RERA Act or approach the regular Civil Court etc.
The respondents/plaintiffs has elected to approach the Civil Court for
recovery of money. The Civil Court's jurisdiction is plenary, unless and
until it specifically excluded, by a legislation.
8. As pointed out above, Section 18 makes it clear that in addition to
the remedy that may be given to a party by the authority under the RERA
Act, he can resort to other remedies. Therefore, the jurisdiction of the Civil
Court is not ousted by virtue of Section18 read with Section 79.
9. Apart from that, the learned Trial Judge has rightly appreciated the
position of law laid down by this Court in C.M.S.A.Nos.23 and 24 of 2023,
dated 20.09.2023. In the said judgment, a Division Bench of this Court had
specifically held that the provisions of Sections 12, 14, 18 and 19 would
apply only in case of projects registered with the authority under the Act. In
this case, the project being less than 500 sq.meters is exempted by virtue of
Section 3(2). Applying the judgment of the Division Bench to the facts of
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this case, the learned Trial Judge has rightly come to a conclusion that the
RERA Act is not a bar for filing a suit for recovery of money.
10. In the light of the above discussion, I do not find any reason to
interfere with the order of the learned Trial Judge. This Civil Revision
Petition is dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
14.08.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The XVII Assistant Judge,
City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
grs
14.08.2024
https://www.mhc.tn.gov.in/judis
