Delhi High Court
Harshad Chiman Lal Modi vs D.L.F. Universal Limited & Another on 1 November, 1999
Equivalent citations: 85(2000)DLT501, 2000(56)DRJ228, (2000)126PLR15
ORDER Dr. M.K.Sharma, J.
1. The present revision petition is directed against the order dated 25.5.1998 passed by the Additional District Judge, Delhi in Suit No.1036/94 holding that the Delhi Court has no jurisdiction to try the suit and directing for return of the plaint to the plaintiff for presentation in the proper court.
2. The petitioner, as plaintiff, instituted a suit praying for a decree for specific performance of the contract of agreement to sell entered into between the petitioner and the respondents. In the said suit it was stated that the plaintiff entered into a plot buyer's agreement in the prescribed form on 14th August, 1985 with defendant No.1 pursuant to which the plaintiff was allotted a residential plot of land measuring 264 sq. mtrs. in the residential colony of DLF Qutab Enclave Complex, Gurgaon, by the defendant No.1. It is also alleged that in terms of the aforesaid allotment the petitioner/plaintiff also paid a sum of Rs.12,974/- to the defendant No.1. It was also alleged that subsequently, however, defendant No.1 wilfully cancelled/withdrew the contract dated 14.8.1995 and the validity of the said action was challenged in the suit.
3. The suit was contested by the defendants and on the basis of the pleadings of the parties five issues were framed. At that stage, however, no issue with regard to want of territorial jurisdiction was raised or framed. Subsequently, however, an amended written statement was taken on record which an issue relating to territorial jurisdiction was also framed by the court in the following manner:-
1. Whether Delhi Civil Court has jurisdiction to try and entertain the present suit?
OPD
4. The aforesaid issue was taken up as a preliminary issue and on the said issue parties were heard. The Additional district Judge held that the Delhi Civil Court has no jurisdiction to try the aforesaid suit and issued a direction for return of the plaint to the plaintiff to enable him to file the same before the proper court. The aforesaid findings and the decision of the trial court are challenged in this revision petition on which I have heard the counsel appearing for the parties.
5. Mr.Rajiv Nayyar, Sr.Advocate appearing for the petitioner submitted that the aforesaid agreement in respect of which decree for specific performance of the contract has been sought for was arrived at Delhi. He also relied upon the various clauses of the said agreement which in specific terms state that the aforesaid agreement has been entered at Delhi and that the payment of the installment towards the sale consideration had also to be made at Delhi. He strongly relied upon clause 28 of the said agreement which stipulates that the Delhi High Court or Courts subordinate to it alone shall have jurisdiction in all matters arising out of touching and/or concerning that transaction. Relying on the aforesaid clauses, counsel submitted that the Delhi Court, therefore, has jurisdiction to try and decide the present suit. He submitted that the parties are competent to place jurisdiction to try a particular case in one court although cause of action for a particular suit could arise at different places. In support of his contention, counsel relied upon the ratio of the decision in A.B.C. Laminart Pvt. Ltd. & Another Vs. A.P. Agencies Sales . He also submitted that the provisions of Section 16(d) CPC read with proviso thereof along with the provisions of Section 20 CPC make it abundantly clear that in the present case the petitioner could file the suit in Delhi Courts also. In support of his contention, the learned counsel also drew my attention to the provisions of Section 54 of the Transfer of Property Act and also to the reliefs sought for in the suit. Counsel also relied upon the ratio of the decisions in Prakash Kaur Vs. Everest Construction Co. reported in State Bank of India Vs. Sanjeev Malik & Others,1990 RLR 506 and in 1996 (2) A.D. 522. He also took up the plea of waiver and estoppel to prove his point that Delhi Court has jurisdiction to try and decide the present suit.
6. In support of the aforesaid contention he relied upon the conduct of the respondent, for the respondent agreed that the Delhi Court shall have jurisdiction to try and decide the present case by inserting clause 28 in the agreement. He submitted that the respondent did not take up the aforesaid issue of territorial jurisdiction for nine long years and even in the written statement filed by it and the same was raised only at a later stage.
7. Mr.Chhabra appearing for the respondents, however, refuted all the allegations and submitted that the Delhi Court has no jurisdiction to try and decide the present suit and in support of his submission he relied upon the decision of this court in Sheela Agarwal Vs. M/s. Infocom Digital Systems Ltd.; 1998 (3) A.D. 636. He also submitted that if the court does not have initial jurisdiction to try and decide the suit, the parties by their mutual conduct and consent cannot vest jurisdiction in a court which does not have jurisdiction to try the suit.
8. In the light of the aforesaid submissions, let me consider the issues raised. It is no doubt true that Clause 28 of the agreement stipulates that the courts in Delhi Shall have jurisdiction to try and decide the disputes connected with the aforesaid agreement. Where two or more courts have jurisdiction under the Code of Civil Procedure to try the suit or proceedings, an agreement between the parties that the disputes between them shall be tried in one of such courts is not Contrary to or violative of the provisions of Section 28 of the Contract Act. In ABC Laminart's case (Supra), it was held by the Supreme Court that where there might be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agree to vest jurisdiction in one such court to try the dispute which might arise as between themselves, the agreement would be valid. It was further held that there would be no doubt that in an agreement to oust absolutely the jurisdiction of the court would be unlawful and void being against the public policy, however, if on the other hand it is found that the jurisdiction agreed would also be a proper jurisdiction in the matter of the contract it could not be said that it ousted the jurisdiction of the Court. From the aforesaid principles laid down by the Supreme Court it is abundantly clear that where the parties to a contract agreed to vest jurisdiction to a particular Court although cause of action has arisen within the jurisdiction of different Courts including that particular Court, the same cannot be said to be void or to be against the public policy. It was also made clear in the said decision that if, however, a particular court does not have any jurisdiction to deal with the matter and no part of cause of action has arisen within the jurisdiction of that Court, the parties by their consent and mutual agreement cannot vest jurisdiction in the said Court. Therefore, a clause vesting jurisdiction on a court which otherwise does not have jurisdiction to decide the matter, would be void as being against the public policy.
9. The provision of Section 16 CPC are also very clear. It provides that a court within the limits of whose jurisdiction the properties situate for the determination of right of which a suit is instituted, would be the place where the suit is to be instituted. In other words, the location of institution of a suit would be guided by the location of the property in respect of which and for determination of any right or interest whereof the suit is instituted.
10. In the present case, admittedly the property in respect of which the agreement was entered into and for specific performance of which the suit is instituted is located at Gurgaon (Haryana). Admittedly, the suit is for specific performance of the contract for agreement to sell of a property located at Gurgaon. In the Plaint apart from seeking a declaration the petitioner has also sought for decree for delivery of possession as well. Therefore, the court in addition to passing a decree shall also be called upon to deliver possession of the property to the petitioner. That can be done only by sending the concerned person responsible for delivery of possession, to Gurgaon. Under such circumstances, in my considered opinion, Delhi Courts shall have no jurisdiction to get the aforesaid decree enforced, for the property is situated outside the territorial jurisdiction of this court. The proviso to Section 16 CPC is also not applicable, for the relief sought for cannot be entirely granted or obtained through the personal obedience of the respondent, for enforcing the relief if granted in respect of delivery of possession, a representative will have to go to the place where the property is located and deliver possession at site where the property is located. The plea of waiver and estoppel, as raised by the petitioner, is also without any merit, for it is settled law that a Court cannot derive jurisdiction in respect of a matter in respect of which otherwise the said Court does not have jurisdiction merely because the parties have agreed to vest jurisdiction on the said court. It would be appropriate to refer to the decision of M/s. Patel Roadways Ltd. Vs. M/s.
Prasad Trading Company; laying down the proposition that by agreement alone jurisdiction could not be conferred on any Court. The aforesaid Clause 28 is, therefore, void being against the public policy. The petition, thus, has no merit and is dismissed accordingly.