Delhi High Court
Manmohan Singh Chawla And Ors. vs Rajesh Berry And Anr. on 20 March, 2008
Equivalent citations: 149(2008)DLT119
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
ORDER Shiv Narayan Dhingra, J.
IA Nos. 14813/2007
1. This application under Order 7 Rule 10 and 11 read with Sections 16(a) and (d) and 151 of CPC has been made by the defendants for return of the plaint on account of lack of territorial jurisdiction of this Court to entertain the instant suit.
2. It is settled law that in order to consider whether a plaint is liable to be returned or not, the Court has to consider the pleadings in the plaint and see if on the basis of pleadings in the plaint, the suit is barred by any law or the Court had territorial jurisdiction to try the suit. However, the Court has to read the plaint meaningfully as a whole and cannot go by the clever drafting of the plaint. Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan and Ors.
3. The present suit has been filed by the trustees of a public trust namely Dashmesh Education Charitable Trust and against two of its erstwhile trustees/members seeking that a money decree for a sum of Rs. 12 crore be passed by the Court against the two defendants along with 24% interest and the Court should declare that the properties as detailed in paragraph 26 of the plaint belonged to the Trust. Further prayer is made that all sale deeds in favor of defendants in respect of the properties mentioned in paragraph 26 be cancelled and defendants be directed to deliver the possession of the properties to the plaintiffs. The defendants and their agents be permanently restrained from creating any third party right or sale or mortgage or create any lien in respect of any of the properties mentioned in paragraph 26 of the plaint.
4. A perusal of paragraph 26 of the plaint would show that all the 7 properties mentioned in this paragraph are situated in District Gurgaon, Haryana. These properties are registered in the names of defendants vide registered sale deeds.
5. The contention of the plaintiffs in the suit is that the defendants No. 1 and 2 were the trustees of Dashmesh Education and Charitable Trust and they,with the help of one Mr. Rajneesh Aggarwal, siphoned off several crore of rupees by playing fraud, embezzlement and diversion of funds of the Trust. They acted contrary to law and violated the provisions of Trust Act. Defendants No. 1 and 2, taking benefit of the trust reposed in them, also amended the trust deed at Gurgaon on 7th December 2002 and subsequently got registered the same at Gurgaon on 16th December 2002. The sole purpose behind this amendment was to bring their own persons through back door entry in the Trust and to play fraud.
6. The plaintiffs on coming to know of evil deeds of defendants, instituted a complaint with the police and an FIR No. 337 of 2004 under Section 406/467/409/468/420 and 120B of IPC was registered because of misappropriation of amount belonging to the trust and utilization of the same by the defendants for their own purpose. It is alleged that by misappropriation of these funds the defendants have deprived the trust of approximately Rs. 12 crore and defendants with the help of this money purchased several properties as given in paragraph 26 of the plaint.
7. In the plaint, the plaintiffs gave details as to what was the modus operandi adopted by defendants and how defendants embezzled the funds of the Trust and how the plaintiffs learnt about the same and took action. Plaintiffs also filed a suit being No. 28 of 2005 against the defendants with leave of the Court under Section 92 of CPC for declaration and removal of defendants as trustees and this Court vide order dated 23rd March 2005 restrained the defendants from interfering with the management and functioning of the trust as well as the college and hospital being run by the trust in Gurgaon. It is submitted that the cause of action for filing the present suit arose within the local limits and jurisdiction of this Court since the bank accounts of the trust were with the Bank of Baroda, Pahar Ganj, Delhi branch. The offence of defalcation and misappropriation of funds was committed by defendants in collusion and in connivance with the bank officials.
8. The instant suit is an ordinary civil suit for recovery of money and declaration and possession of the immovable properties being held by the defendants. This suit is not the one under Section 92 of CPC. Section 16 of CPC shall govern the question of jurisdiction. Section 16 of CPC reads as under:
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.
9. It is obvious from reading of Section 16 that where a suit is filed for declaration in respect of the movable properties or for recovery of immovable properties or determination of any right or for interest in immovable properties, only the Court within whose local limits the properties are situated, shall have the jurisdiction. Proviso to Section provides that where the relief can be obtained entirely by personal obedience of the defendants, the suit can be filed within the local limits of the Court where defendant actually or voluntarily resides or carries on his business. In the present suit, both the defendants are admittedly residing in Gurgaon and are working in Gurgaon. All the properties about which declaration is sought and possession of which is sought are situated in Gurgaon. Even if recovery is to be done, it is to be done from the defendants who are residing in Gurgaon, State of Haryana. Therefore, only local Courts at Haryana shall have the jurisdiction in this case. Section 17, 18 and 19 of CPC have no application in the instant case. Section 20 provides that subject to limitation of Section 17 to 19 every other suit shall be instituted in a Court within whose local limits or jurisdiction defendants or each of the defendant actually or voluntarily resides or carries on business at the time of commencement of the suit or the cause of action in entirety or in part had arisen.
10. Counsel for the plaintiffs sought to take help of Section 92 of CPC in order to plead that this Court will have jurisdiction and stated that Section 92(c) provides that if vesting of any property in a trust was concerned and if making of an inquiry and accounts were concerned, the suit can be filed within the jurisdiction of the Court within whose local limits the subject matter of trust is situated. As has been already stated, this suit is not the one under Section 92 of CPC and is an ordinary suit filed by the trustees for recovery of embezzled funds and recovery of properties standing in the name of the defendants or their trust, claiming that these properties were being purchased out of the embezzled funds/diverted funds.
11. I consider that no support can be drawn from Section 92 CPC to claim jurisdiction. It is plaintiffs' own case that the defendants were in possession of the properties in Gurgaon. The college of the trust was running in Gurgaon and the embezzlement and misappropriation of the funds was being done at Gurgaon. The fees of the students collected by the defendants at Gurgaon College to the tune of Rs. 2, 29,09,500/- was not deposited in the trust. Merely because the trust had an account in the Bank of Baroda, Pahar Ganj Branch, Delhi, this Court will not have the jurisdiction to entertain the suit neither it can be said that since the bank is situated in Delhi, the cause of action arose in Delhi.
12. The instant suit has been filed for recovering back 7 properties from defendants which defendants allegedly purchased by diverting/embezzlement of funds as well as for recovery of Rs. 12 crore from defendants. Section 16 CPC is the only relevant section for deciding jurisdiction in this case. I have no doubt that this Court has no territorial jurisdiction to entertain the suit and only the Court at Gurgaon, Haryana have the jurisdiction to try and entertain the instant suit. The plaint is, therefore, directed to be returned to the plaintiffs for presenting the same before the Court having appropriate jurisdiction.