Punjab-Haryana High Court
Piyush Colonisers Limited vs Narender Aggarwal And Another on 29 February, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
Civil Revision No. 7800 of 2010 (1)
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
Civil Revision No. 7800 of 2010 (O&M)
Date of decision : 29.2.2012
Piyush Colonisers Limited .. Petitioner
vs
Narender Aggarwal and another .. Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Suman Jain, Advocate, for the petitioner.
Mr. Sanjiv Gupta, Advocate for
Mr. Johan Kumar, Advocate, for respondent no. 1.
Rajesh Bindal, J.
1. Prayer in the present petition is for setting aside of the order dated 4.9.2010, passed by the learned court below, whereby the application filed by the petitioner/defendant under Order VII Rule 11 CPC for the rejection of the plaint on the ground of jurisdiction, was dismissed.
2. Briefly the facts of the case are that the petitioner is a private limited company incorporated under the Companies Act and presently having its registered office at A-16/B1, Mohan Co-operative Industrial, Main Mathura Road, New Delhi. The property in dispute is situated at Bhiwadi, Rajasthan. Respondent No. 1/plaintiff filed a suit for permanent injunction restraining the petitioner-defendant from alienating or selling the suit property for which advance of ` 2,50,000/- paid by him for each flat and also from creating any further charge over the suit property in dispute. Further prayer was made for mandatory injunction directing the defendants to refund the booking amount of the aforesaid flat/ advance registration booking along with interest in favour of the plaintiff.
3. It is in the said suit that the petitioner-defendant filed application under Order VII Rule 11 CPC for the rejection of the plaint raising an objection that the Court at Faridabad does not have the jurisdiction to try the suit in terms of the provisions of Section 16 CPC. It Civil Revision No. 7800 of 2010 (2) was also stated therein that the Corporate office of the petitioner-company is at New Delhi and the property in question is situated at Bhiwadi (Rajasthan). Mere residence of some of the Director of the company does not entitle the plaintiff-respondent no. 1 to file the suit at Faridabad. The application having been rejected, the petitioner-defendant is before this court.
4. Learned counsel for the petitioner submitted that the suit was filed at Faridabad by the plaintiff-respondent No. 1 only because he is resident of Faridabad and it was convenient for him to pursue the case there. In the present case, the property in dispute is situated at Bhiwadi (Rajasthan). The petitioner company is having its registered office at New Delhi and the booking amount was deposited by the plaintiff at New Delhi. No cause of action had accrued at Faridabad. As per Clause 26 of the agreement, it has been agreed upon between the parties that the court at Delhi alone shall have jurisdiction in case of any dispute. Plaintiff- respondent no. 1 applied for two flats and submitted his application form accepting the basic terms and conditions of the allotment to the petitioner company. Therefore, as per the settled position of law, the impugned order passed by the learned court below is erroneous and is liable to be set aside. In support of his submissions, learned counsel for the petitioner relied upon judgment of Hon'ble the Supreme Court in Harshad Chiman Lal Modi vs DLF Universal Limited and another 2005 (7) SCC 791.
5. On the other hand, learned counsel for respondent no. 1/plaintiff submitted that the learned court below has the jurisdiction to try the suit as the relief sought could be obtained by personal obedience of the petitioner-defendant. The office of the petitioner company is situated at Faridabad and directors of the petitioner company are also residing at Faridabad. The address of Faridabad is clearly mentioned in the licence as SCO No.13, Sector 16, Faridabad, copy of sale-deed of petitioner-defendant and on income tax returns also. In support of his submissions, he relied upon judgment of Delhi High Court in Sidharth Choudhary vs Mahamaya General Finance 1999 (4) R. C. R. (Civil) 20. He further submitted that the learned court below had rightly dismissed the application of the petitioner-
Civil Revision No. 7800 of 2010 (3) defendant.
6. Heard learned counsel for the parties and perused the paper- book.
7. Before appreciating respective contentions raised by the learned counsel for the parties, reference is required to be made to relevant provisions of law, which are as under:-
"Section 16 CPC "16. Suits to be instituted where subject-matter situate.- Subject to the pecuniary or other limitations prescribed by any law, suits,-
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Section 20 CPC
20. Other suits to be instituted where defendants reside or cause of action arises. -- Subject to the limitations aforesaid, Civil Revision No. 7800 of 2010 (4) every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
[Explanation].-- A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
From a perusal of the above mentioned provisions, it is clear that:-
(i) suits concerning immovable property can be filed in the court within whose jurisdiction the property is situate'
(ii) all other suits, which do not fall within the ambit of Sections 15 to 19 of CPC, dealing with jurisdiction are to be instituted where defendants reside or cause of action arises. The explanation appended to Section 20 CPC says that a corporation shall be deemed to carry on business at its sole or principal office or, if cause of action arose at any place where it has also a subordinate office, at such place.
Proviso to Section 16 CPC, provides that though the court cannot, in case immovable property is situated beyond its jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through personal obedience of the defendant. The personal obedience of the Civil Revision No. 7800 of 2010 (5) defendant could be secured only if the defendant resides or works within the local limits of the jurisdiction of the court whose order is to be obeyed. The obedience must be such as the defendants could render without going beyond jurisdiction. Its essential feature is that the land or immovable property in respect of which the suit is instituted is outside the jurisdiction of the court but the person of defendant or his personal property is within the jurisdiction of the court in which the suit is brought so that if the defendant does not comply with the judgment of the court, the court may direct the arrest of the defendant or may order that his goods be attached. But this does not mean that the residence of the defendant is the only criteria to be seen for conferring jurisdiction on a court. In the case in hand, the proviso to Section 16 CPC has no applicability.
8. The issue regarding jurisdiction of the court to entertain a suit came up for hearing before Hon'ble the Supreme Court in Begum Sabiha Sultan vs Nawab Mohd. Mansur Ali Khan and others 2007 (4) SCC 343. Relevant paras thereof are as under:-
"10. There is no doubt that at the stage of consideration of the return of the plaint under Order VII Rule 10 of the Code, what is to be looked into is the plaint and the averments therein. At the same time, it is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit. In Messrs Moolji Jaitha & Co. Vs. The Khandesh Spinning & Weaving Mills Co. Ltd. [A.I.R. 1950 Federal Court 83], the Federal Court observed that:
"The nature of the suit and its purpose have to be determined by reading the plaint as a whole."
It was further observed:
"The inclusion or absence of a prayer is not decisive of the true nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint and on which the reliefs asked in the prayers are based."
Civil Revision No. 7800 of 2010 (6) It was further observed:
"It must be borne in mind that the function of a pleading is only to state material facts and it is for the court to determine the legal result of those facts and to mould the relief in accordance with that result."
This position was reiterated by this Court in T. Arivandandam Vs. T.V. Satyapal & Anr. [(1978) 1 S.C.R. 742] by stating that what was called for was a meaningful --- not formal --- reading of the plaint and any illusion created by clever drafting of the plaint should be buried then and there. In Official Trustee, West Bengal & Ors. Vs. Sachindra Nath Chatterjee & Anr. [(1969) 3 S.C.R. 92], this Court approving the statement of the law by Mukherjee Acting Chief Justice in Hirday Nath Roy Vs. Ramchandra Barna Sarma, [I.L.R. 48 Calcutta 138 F.B.] held:
"Before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject- matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties."
"12. On a reading of the plaint as a whole, it is clear, as we have indicated above, that the suit is one which comes within the purview of Section 16(b) and (d) of the Code. If a suit comes within Section 16 of the Code, it has been held by this Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & Anr. 2005 (4) RCR (Civil) 260; (2005) 7 S.C.C. 791 that Section 20 of the Code cannot have application in view of the opening words of Section 20 "subject to the limitations aforesaid". This Court has also held that the proviso to Section Civil Revision No. 7800 of 2010 (7) 16 would apply only if the relief sought could entirely be obtained by personal obedience of the defendant. The relief of partition, accounting and declaration of invalidity of the sale executed in respect of immovable property situate in Village Pataudi, Gurgaon, could not entirely be obtained by a personal obedience to the decree by the defendants in the suit. We are in respectful agreement with the view expressed in the above decision. Applying the test laid down therein, it is clear that the present suit could not be brought within the purview of the proviso to Section 16 of the Code or entertained relying on Section 20 of the Code on the basis that three out of the five defendants are residing within the jurisdiction of the court at Delhi."
9. Now coming to the case in hand, admittedly, property in dispute is situated at Bhiwadi (Rajasthan). As per the record of the Registrar of Companies, the principal office of the petitioner company is situated at New Delhi, as has been mentioned on the receipt Nos. PCL/BH/FT 5569 and 5570 dated 7.6.2007 issued to plaintiff-respondent no. 1 by the petitioner company. Therefore, suit could not be filed at Faridabad. Neither the property in dispute is situated at Faridabad nor any part of cause of action has arisen there. Thus, on a mere allegation that petitioner-defendant resides at Faridabad, the court at Faridabad cannot be said to have the jurisdiction to try the suit.
10. For the reasons mentioned above, in my opinion, the court at Faridabad does not have the jurisdiction to try the suit. The impugned order passed by the learned court below deserves to be set aside. Ordered accordingly. The plaint is directed to be returned to the plaintiff-respondent no. 1 to be presented in the court of competent jurisdiction.
11. The petition stands disposed of.
( Rajesh Bindal ) 29.2.2012 Judge vs (Refer to reporter)