Delhi High Court
M/S S Kumar Investment & Properties vs M/S D.D Resorts Pvt Ltd. on 21 October, 2009
Equivalent citations: AIR 2010 (NOC) 383 (DEL.), 2006 (5) AIR KAR R 156 2010 AIHC (NOC) 571 (DEL.), 2010 AIHC (NOC) 571 (DEL.), 2010 AIHC (NOC) 571 (DEL.) 2006 (5) AIR KAR R 156, 2006 (5) AIR KAR R 156
Author: S.L.Bhayana
Bench: S.L. Bhayana
HIGH COURT OF DELHI: NEW DELHI
CS (OS) 1757/2009
Date of Decision: October 21, 2009
M/S S KUMAR INVESTMENT & PROPERTIES ...PLAINTIFF
Through: Mr. Subhash Oberoi, Adv.
Versus
M/S D.D RESORTS PVT LTD ... DEFENDANT
Through: Ms.Pinky Anand, Sr. Adv with
Mr. Rajesh Ranjan , Adv.
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the digest
or not? Yes
S.L. BHAYANA, J.
1. By way of this order, I propose to decide the objection raised by learned senior counsel for the defendant on the issue of maintainability of the suit on the ground of jurisdiction.
2. Plaintiff has preferred the present suit, inter alia, praying for relief by way of a permanent and mandatory injunctions restraining the respondent from creating any hindrance or disrupting or from interfering in the peaceful use and enjoyment of the commercial flat bearing No.23, Ground Floor, measuring 1368 sq. ft. situated at the commercial complex known as Global Foyer, (formerly known as "Cityscape").
CS (OS) 1757/09 P a g e | 1 of 7
3. Learned counsel appearing for the plaintiff contended that as per commercial space buyer's agreement dated 11/10/2006 defendant had to comply with certain terms and conditions prior to entering into and execution of a proper conveyance deed. Plaintiff had paid the entire sale consideration, which was duly accepted and acknowledged by the defendant and in pursuance thereof, the defendant had executed a conveyance deed dated 23/12/2008 duly registered with Sub Registrar of Gurgaon.
4. Defendant vide a letter of possession dated 23/12/2008 had also handed over the possession of above mentioned commercial unit however defendant had failed to measure and give the actual area provided in the agreement dated 11/10/2006 and further demarcate or provide one car parking space in the basement area of the said building.
5. Defendant has been creating hindrance, impediments even in the free ingress and egress of the petitioner or his employees to the premises, which is in gross violation of Clause 6 of the conveyance deed dated 23/12/2008.
6. On the other hand, while opposing the present application, learned senior counsel appearing for the defendant, at the outset has raised objections of jurisdiction.
7. Learned counsel for the defendant argued that this court lacks territorial jurisdiction to adjudicate upon this matter as the suit property is situated in Gurgoan, Haryana. Further conveyance deed is also executed and registered in Gurgoan.
CS (OS) 1757/09 P a g e | 2 of 7
8. Section 16(d) of CPC bars this suit to be filed in Delhi as cause of action if any had arisen in Gurgoan. Other suits pertaining to this suit property were also filed in Gurgoan only.
9. To capitalise her arguments learned counsel for the defendant has placed reliance upon following judgments:
a. Harshad Chiman Lalmodi VS DLF Universal And Anr.
AIR2005SC 4446 b. Shri Surendra Prasad Sinha Vs Smt. Bibha Sinha and Ors., IA No.14160/08 in CS(OS) 946/2007 decided on 28/7/2009 by this Court.
c. Pantaloon Retail India Ltd Vs DLF Limited and Ors, 155 (2008) DLT 642.
10. I have heard learned counsel for both the parties. Since issue of jurisdiction was raised in context of clause (d) of Sec 16 of CPC, it would be apposite to reproduce the same.
"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 the 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 CS (OS) 1757/09 P a g e | 3 of 7 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.
Explanation.- In this section "property" means property situate in [India]."
11. To support this application learned counsel for plaintiff has also placed reliance upon following judgments:
a. Adcon Electronics Pvt. Ltd Vs Daulat and Others, 2001 (7) SCC 698 b. Jatinder Nath Vs M/S Chopra Land Developers Pvt.
Ltd. &Anr., AIR 2007 SC 1401 c. Rohit Kochhar Vs Vipul Infrastructure Developers Ltd, 122 (2005) DLT 480 d. Bhawna Seth Vs DLF Universal Ltd &Anr., 138 (2007) DLT 639
12. In aid of the plea that this court had no jurisdiction to entertain the present suit and application reliance has been placed only on the provisions of Section 16 of CPC in particular clause (d).
13. I have gone through all the judgments of this court and of the Supreme Court on which parties have relied. From the reading of all these judgments it is clear that in Bhawna Seth (Supra) all the abovementioned judgments have been discussed including the judgments on which defendant has relied. Legal proposition which has been culled out from them is that there is distinction between suits in relation to specific performance of agreement in question without the relief of possession and in suits where additional claim for delivery of possession is also prayed for. In the latter cases, legal decisions had ousted the jurisdiction of a court whereof the suit property is not CS (OS) 1757/09 P a g e | 4 of 7 situated wherein the earlier cases Adcon Electronics (supra) squarely applies.
14. In the instant application, the plaintiff has sought relief of injunction in respect of suit property of which he is in possession, situated in Gurgoan and that the alleged conduct of the defendant amounts to disturbing his possession. This court has territorial jurisdiction to try the suit, as the relief sought is such which can be obtained through personal obedience of the defendant.
15. It would be apposite to reproduce the relevant paragraphs of Bhawana Seth (supra):
"20. On consideration of the aforesaid judgments, I am of the view, that there can be no doubt that where in a suit for specific performance possession is also claimed as a relief, the competent court to deal with the matter is the court where the property is located in view of Section 16 of the said Code. the judgment in Harshad Chiman Lal Modi case (supra) clearly lays down the said proposition. However, what cannot be lost sight of is that the judgment is in the facts of the case where the relief of possession was specifically claimed. The question as to what would happen where the relief for possession is not claimed does not form subject matter of a relief in Harshad Chiman Lal Modi case (supra).
21. The three judgments referred to by learned Counsel for the defendants of this Court in Sheela Agarwal case (supra); M/s. Uttam International case (supra) & Anil Verman case (supra) propounded the legal position that even where relief of possession is not prayed for in a suit for specific performance the said relief is intrinsic to the relief for specific performance and thus if the plaintiff is not in possession of the suit property and seeks specific performance the suit can be filed only within the jurisdiction of the Court where the property is situated. However, all the three judgments are prior to the pronouncement by the Apex Court in Adcon Electronics Pvt. Ltd.
case (supra) which is by a bench of two Hon'ble Judges of the Supreme Court as is the position in Harshad Chiman Lal Modi case (supra). However, a reading of the two judgments show that they operate in a different factual matrix.
22. M/s. Adcon Electronics Pvt. Ltd. case (supra) deals with the distinction in a case simplicities for specific performance as against a case where possession is also prayed. This issue is not discussed in Harshad Chiman Lal Modi case (supra) nor has the judgment in Adcon Electronics Pvt. Ltd. case (supra) been apparently cited in the proceedings in Harshad Chiman Lal Modi case (supra). Thus, both the judgments would operate in their respective areas. M/s. Adcon Electronics Pvt. Ltd. case (supra) clearly sets CS (OS) 1757/09 P a g e | 5 of 7 down that in a suit for simplicities specific performance the same does not amount to a suit for land. If it is a simplicities suit for specific performance, i.e. for enforcement of Contract for Sale and for execution of sale, in that event there can be no good ground for holding that such a suit is for determination of title to the land or that the decree in it would operate on the land. The observations made in the judgment in Moolji Jaitha & Co. v. The Khandesh Spinning & Weaving Mills Co. Ltd. referred to in the said judgment being a judgment of the Federal Court was approved by the Supreme Court, as noted in paragraph 15 of the Adcon Electronics Pvt. Ltd. case (supra). Thus a distinction has been carved out in respect of a suit where no possession has been claimed of the land in question.
23. The relief prayed for in the present suit is not for possession. Not only that the counsel for the plaintiff categorically stated during the submissions that in the present suit the plaintiff will not press for the relief for possession but reserves the right to file a separate suit if need be at a later stage. Learned Counsel drew strength from the observations made by the learned single Judge of this Court in Rohit Kochhar case (supra) which discussed the ramifications of the judgment of the Supreme Court. The payments in the present case have all been made at Delhi to the Delhi office of defendant No. 1.
24. Learned Counsel for the defendants, however, stated that a fresh suit would not be maintainable in view of Order 2 Rule 2 of the said Code despite the observations in Rohit Kochhar case (supra). I am of the view that this aspect is not required to be gone into in the present proceedings since if such an eventuality arises and a fresh suit is filed by the plaintiff it will be for that court to examine whether the subsequent suit is barred by Order 2 Rule 2 of the said Code. It would suffice to say that the plaintiff is at present not claiming the relief of possession and that aspect is specifically confirmed by the learned Counsel for the plaintiff during the course of the arguments.
25. I am thus of the view that since the plaintiff is not claiming possession of the suit property and has specifically stated so and the relief is confined to specific performance of the Agreement in question without the relief of possession, the judgment in Adcon Electronics Pvt. Ltd. case (supra) would squarely apply to the facts of the present case and thus this Court would have territorial jurisdiction to try and entertain the present suit. The issue is accordingly answered in favor of the plaintiff and against the defendants.
16. After having considered the legal proposition and facts of this case from which it is clear that plaintiff is already in possession of suit property, I am of the view that proviso of Section 16 (d) of CPC would have application to the facts of this case. Proviso is based on the maxim equity acts in personam. Under the proviso even through the immovable property is not situated within the jurisdiction of a court, a CS (OS) 1757/09 P a g e | 6 of 7 suit in respect of compensation to the immovable property may at the option of the plaintiff be instituted in that court if the person of the defendant or his personal property is within its jurisdiction and the relief asked for can be entirely obtained through defendant's personal obedience.
17. In view of the aforesaid position, I am of the considered opinion that this Court shall definitely have the territorial jurisdiction to try the present suit as cause of action although partly has arisen in New Delhi and since the registered office of the defendant at the time of execution of the agreement was located at 8, Ring Road, Lajpat Nagar, Delhi, wherefrom the defendant was carrying on its business, so this court can try and entertain this suit.
18. Objection raised by learned counsel for the defendant is hereby rejected.
CS (OS) No.1757/2009 & IA Nos.12020-21/09
19. Let the plaint be registered as a suit.
20. Learned counsel for the defendant has already put in appearance. Let him file reply to the stay application within one week.
21. List before the regular Bench on 28th October, 2009.
S.L.BHAYANA, J.
October 21, 2009 CS (OS) 1757/09 P a g e | 7 of 7