Full Text
JUDGMENT
M/S INNOVATIVE TEXTILES PVT. LTD & ANR ..... Plaintiffs
Through Mr.Salar M. Khan, Adv.
Through Mr.S.S.Katyal, Adv. with Mr.Sanjay Katyal, Adv.
1. By this order I propose to decide the pending application being I.A. No.611/2010 filed by the defendants, under Order VII Rules 10 & 11 read with Section 151 CPC.
2. The prayer made in the application is to reject the plaint, as the suit under Order XXXVII CPC is not maintainable and also to return the plaint for presentation in the Court of proper jurisdiction, as this Court has no jurisdiction.
3. Originally, the plaintiffs filed the suit against the defendants for recovery of a sum of Rs.2,20,50,000/- under Order XXXVII CPC. Brief facts of the matter are that in terms of agreement to sell dated 28th September, 2006, the plaintiff No.1 paid a sum of 2014:DHC:5389 Rs.2,20,50,000/- to defendant No.1 as earnest money towards the total sale consideration of Rs.7.35 crores qua the sale of the property, being 61 Bighas 5 Biswas of land situated at Village Baterh, Pargana Doon, Tehsil Kasauli, District Solan, Himachal Pradesh. The receipt with regard to the said amount was also executed by defendant No.1.
4. The suit as well as the interim application filed by the plaintiffs was listed first time before Court on 29th May, 2009. Summons in the main suit and notice in the application were issued to the defendants. An interim order was also passed against the defendants restraining them from selling, transferring, mortgaging, leasing out or creating third party interest in any manner whatsoever in the properties: (i) 5203, DLF, Phase-4, Gurgaon, Haryana, and (ii) Kothi No.13, Sector-7, Panchkula. After service of the summons, the defendants filed two applications; one under Order VII Rules 10 & 11 CPC being I.A. No.611/2010 (application under consideration), and another under Order XXXIX Rule 4 CPC being I.A. No.594/2010. An application being I.A. No.17564/2011 under Order XXXVII Rule 3(5) CPC for leave to defend was also filed by the defendants.
5. By order dated 16th July, 2013, the plaintiffs’ interim application being I.A. No.7689/2009 and the defendants’ application under Order XXXIX Rule 4 CPC being I.A. No.594/2010 were disposed of by confirming the ex parte ad-interim order dated 29th May, 2009. By the same order, the defendants’ application being I.A. No.17564/201 was also disposed of granting them the leave to defend.
6. After completion of the pleadings and admission/denial of the documents, the matter was placed before Court on 4th March, 2014 for framing of issues as well as hearing of pending application. On the said date, the following issues were framed:-
(i) Whether the Delhi court has the jurisdiction to try and decide the present suit? OPP.
(ii) Whether the suit is liable to be rejected under Order
(iii) Whether the plaintiff is entitled to a decree of
(iv) Whether the plaintiff is entitled to compound interest at the rate of 18% per annum with effect from 28.09.2006? If so, on what amount and for what period? OPP.
(v) Relief.
7. After framing of the issues, the plaintiffs filed the list of witnesses as well as evidence by way of affidavit. The suit is now listed for the plaintiffs’ evidence on 25th November, 2014.
8. When the matter was listed before Court on 8th August, 2014, the learned counsel for the defendants insisted for hearing of the present application. The suggestion was also made to the learned counsel for the defendants to expedite the trial instead of hearing of the present application. However, counsel was not agreeable for the same. He has also failed to give any explanation why at the time of framing of issues, he did not press his point to treat issues No.1 & 2 as preliminary issues. This Court is left with no option but to decide the present application in accordance with law.
9. Learned counsel for the defendants has submitted that this Court does not have the territorial jurisdiction in the present case, therefore, the plaint is liable to be rejected under Order VII Rule 10 CPC. As regards Order VII Rule 11 CPC, the defendants submit that the suit of the plaintiffs under Order XXXVII CPC is not maintainable, as there is no liability, debt or liquidated demand which the defendants owe to the plaintiffs. The refund of the earnest money was dependent upon various conditions as laid down in the agreement to sell dated 28th September, 2006. The plaintiffs are guilty of not fulfilling those conditions. Therefore, the summary suit is not maintainable, as the plaintiffs have failed to disclose any cause of action which would entitle them to file the present summary suit.
10. Learned counsel for the plaintiffs on the other hand states that admittedly, the defendants have received the earnest money for the sum of Rs.2,20,50,000/- from the plaintiffs. The suit property is also with the defendants. The present suit is filed for recovery of the said amount which was received by the defendant. As the receipt of the amount is the admitted position, therefore, the suit under Order XXXVII CPC is maintainable.
11. Various decisions were referred by both parties but I feel that each case has to be determined as per its own merit.
12. Having heard the learned counsel for both the parties, I am of the considered view that the present application is liable to be dismissed, for the following reasons:- (a) Issues No.1 & 2 have already been framed which are raised by the defendants in the present application. (b) The plaintiffs have invoked the jurisdiction of this Court in view of the specific statement made in para 21 of the plaint which reads as under:-
(c) It is the settled law that at the time of considering the application under Order VII Rules 10 & 11 CPC, the averments made in the plaint and documents filed alongwith the plaint have to be examined. No doubt, the defendants in their written statement have denied all the averments made in para 21 of the plaint, but for the purpose of deciding this application, the contents of the written statement are irrelevant. The plaint cannot be returned at this stage. The issue of jurisdiction has already been framed on 4th March, 2014 and the evidence has been produced by the plaintiffs on this issue. Ultimately, if the Court will come to the conclusion that this Court shall have no jurisdiction, the suit of the plaintiffs would be dismissed for lack of jurisdiction. The said issue in any way has to be determined. Thus, the submissions of the defendants at this stage are rejected in view of specific statement made in the plaint.
(d) As far as the cause of action is concerned, the plaintiffs have made the specific statement in paras 18 to 20 of the plaint, which read as under:-
13. Under these circumstances, the present application is dismissed. List before the Joint Registrar on 25th November, 2014, the date already fixed.
JUDGE OCTOBER 15, 2014