Full Text
HIGH COURT OF DELHI
Date of Decision: 11.08.2023
RT CONSTRUCTION ..... Plaintiff
Through: Mr. Vishal Ranjan, Mr. Sanjay Jha, Advs.
Through: Ms.Surabhi Singh, Adv. for D-1
JUDGMENT
1. This is an application filed by the defendant no.1 under Order VII Rule 11 of the Code of Civil Procedure (CPC) seeking rejection of the plaint on the ground that this Court lacks territorial jurisdiction.
2. A brief factual matrix of the present suit, as may be necessary for the adjudication of the application may be noted at the outset.
3. The plaintiff claims to be in the business of construction, supply of man power, trading of materials and hiring of equipments etc, having its corporate office at UGF- 67, World Trade Center, Babur Road, New Delhi. Based on the work order issued by defendant no.2 on 15.06.2018, the plaintiff supplied man power to defendants for construction work at the head office of Hyundai Motors India, Gurugram, Haryana.
4. It is the plaintiff‟s case that despite availing the services of man power supplied by it, the defendant no.2 failed to make payments and even the cheques issued by defendant no.2 towards part of the said payment were dishonoured. However, as despite the plaintiff‟s repeated requests, no payments were made by the defendants and consequently on 03.10.2019, the parties had a meeting at Hyundai Motors‟ office at Jasola, New Delhi where the defendants agreed to pay a sum of Rs 7,67,30,826/- towards full and final settlement of its dues. The agreement was duly recorded in writing and a „Payment Certificate‟ dated 03.10.2019 to this effect was issued by the defendants and the same was counter signed by the plaintiff. Pursuant thereto, the defendant no.1 issued two cheques towards part payment. The plaintiff deposited these two cheques in its bank account, with the Axis Bank, Sector 24, Rohini, New Delhi, but again one of the cheques got dishonoured. Being aggrieved, the plaintiff preferred a complaint under section 138 of the Negotiable Instruments Act in the Court of Metropolitan Magistrate, Rohini Courts, District- North West Delhi, which complaint is still pending.
5. It is in these circumstances that the present suit seeking recovery of a sum of Rs 7,05,92,360/- along with interest from the defendants has been filed. It may be noted at this stage itself, that the right of the defendants to file their written statement already stands closed and therefore vide this order, only the application under Order VII Rule 11, CPC filed by the defendant No.1 is being decided.
6. In support of the application, the only ground urged by the learned counsel for the defendant no.1 is that this Court does not have the necessary territorial jurisdiction to entertain the present suit and therefore the plaint ought to be returned for being filed before an appropriate forum. She submits that neither the plaintiff nor the defendants have their office in Delhi and the agreement based on which the claim for recovery has been made by the plaintiff was also entered into between the plaintiff and defendant no.2 at Chennai. Furthermore the man power was admittedly provided at the headquarters of Hyundai Motors Gurugram. She further submits that the plaintiff‟s plea that since the cheques were presented by the plaintiff with its bank in Delhi, and therefore, a part of the cause of action has arisen in Delhi is wholly misconceived. In support of his plea, she relies on the decision of the Coordinate Bench of this Court in M/S Mountain Mist Agro India (Pvt) Ltd & Anr. Vs. Mr S. Subramaniyam 2008 SCC OnLine Del 39.
7. On the other hand, learned counsel for the plaintiff contends that contrary to the stand of the defendant no.1, the plaintiff has its corporate office in Delhi, and submits that the plaintiff in para 1, 10, 14 & 21 of the plaint has specifically pleaded that it was operating from its office in Delhi where it received the cheques which were deposited with its bank in Delhi, and therefore a part of the cause of action had arisen in Delhi. Furthermore, the plaintiff has also specifically averred that the defendants had admitted their liability to pay a sum of Rs. 7,05,92,360/- to the plaintiff vide Payment Certificate dated 03.10.2019 which was also executed at Delhi.
8. He further submits that the plaintiff‟s bank through which it has been conducting its business is also situated in Delhi, and it is in this bank account that the cheques towards the part payments were deposited by the plaintiff. He therefore contends that in the light of these specific averments made in the plaint, it cannot be said that the suit is liable to be rejected for want of territorial jurisdiction. In support of his plea, he seeks to place reliance on the decisions of this Court in Satyapal vs. Slick Auto Accessories Pvt. Ltd. and Ors. in RSA No. 40/2013, and in M/S. Auto Movers vs. Luminous Power Technologies Pvt. Ltd. in CM (M) 604/2020.
9. Before dealing with the rival submissions of the learned counsels for the parties, I may refer to the scope of Order VII Rule 11, CPC, as elucidated by the Apex Court in paras 7 & 7.[1] of its recent decision in Sri Biswanath Banik & Anr vs. Sulanga Bose & Ors. (2022) 7 SCC 731. The same reads as under: “7. Now, so far as the issue whether the suit can be said to be barred by limitation or not, at this stage, what is required to be considered is the averments in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected under Order 7 Rule 11(d)CPC on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole. As observed and held by this Court in Ram Prakash Gupta [Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59], rejection of a plaint under Order 7 Rule 11(d)CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in para 21, it is observed and held as under: (SCC p. 68)
7.1. From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order 7 Rule 11CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.”
10. It is thus evident that while dealing with an application under Order VII Rule 11 of CPC, the Court must read the plaint as a whole, and that such an application must be decided only on the basis of the averments made in the plaint. In order to appreciate the rival pleas of the parties, it would therefore be apposite to refer to the averments made in paras 1,10, 14 and 21 of the plaint so as to determine as to whether it can be said at this stage that this Court lacks territorial jurisdiction. The same read as under:
1. That the Plaintiff is a registered Partnership Firm having its corporate office at UGF-67, World Trade Center, Babar Road, New Delhi-110 001. That the present suit is being filed by the Plaintiff through its partner namely Sh. Tahir Ali Khan, who is duly authorized vide a Power of Attorney dated January 31,
2022. Original Power of Attorney dated 31.01.2022 is present in the list of documents. ***
10. That it was only then that the Plaintiff, through its partners, made a visit to the Hyundai Motors' India's office at Jasola, New Delhi/Head Office of Defendant No. 1 to get its rightful dues. In the meeting held at Jasola Office, New Delhi, both the defendants participated. It was decided there that although the Plaintiff had provided services worth Rs. 8,96,98,009/-, an amount of Rs. 7,67,30,826/- only will be paid to the Plaintiff(Rupees Seven Crores Sixty Seven Lakh Thirty Thousand Eight Hundred and Twenty Six Only). It was further decided between all three i.e. Plaintiff and both the Defendants herein that the above stated amount will be paid by the Defendant No. 1 instead of Defendant No. 2. All three of them duly acknowledged the amount of 7,67,30,826 and put their signatures on a paper which is described in business parlance as "payment certificate" dated 03.10.2019. It is respectfully submitted that the Defendants admitted their liability in the meeting held at Jasola Office in New Delhi. Further, on 04.10.2019 the Defendant No. 2 also wrote an email to the Plaintiff, keeping Defendant No. 1 in loop, reducing into writing the fact that the Defendant No. 1 will make the payment to the Plaintiff instead of Defendant No. 2. Copies of the payment certificate dated 03.10.2019 and email dated 04.10.2019 are present in the list of documents. ***
14. That on 30.11.2019 the Plaintiff deposited the cheque bearing no. 195476 in his account bearing NO. 919030058836020 with Axis Bank, Sector-24 branch, Rohini, Delhi. The same was encashed but cheque bearing no. 195478 when was presented, in the same account with the same branch i.e. Axis Bank, Sector- 24, Rohini, New Delhi, got dishonoured for the reason payment stopped by drawer. Copy of the return memo dated 03.01.2020 are present in the list of documents. ***
21. That the Hon'ble Court has the necessary pecuniary jurisdiction as the recovery amount is greater than the Specified Value. It also has the necessary territorial jurisdiction as the aforementioned bank account, as mentioned in Para 14 of the plaint, is maintained by the Plaintiff for the work being done at the impugned site only. The Plaintiff uses that account for releasing daily wages/salaries of the workmen engaged at the impugned site. The Plaintiff has also received the part payment in this account only and the other cheque bearing no.195478 was also presented at the branch in Rohini, Delhi for being deposited in the same afore mentioned account. It is also respectfully submitted that the above mentioned payment certificate, wherein the Defendants acknowledged their final liability, was also prepared in the meeting held at Jasola/Okhla Office of Hyundai Motors' India. The Plaintiff also has a branch office at the address mentioned in Para 1 herein and used to manage the business at impugned site from that office only.”
11. From the aforesaid averments made in the plaint, it is evident that the plaintiff has specifically averred that it was conducting its business from its corporate office in Delhi. The plaintiff has also averred that the Payment Certificate dated 03.10.2019 whereby the defendants had admitted their liability was also executed at the office of Hyundai Motors in Jasola, New Delhi. No doubt the plaintiff would have to prove these averments by leading evidence, but this is not the stage to examine this aspect.
12. In the light of these specific averments in the plaint, and taking into account the settled principle of law that for the purpose of deciding an application under Order VII Rule 11 only the averments made in the plaint are required to be considered, it cannot be said at this stage, that this Court does not have the territorial jurisdiction to try the suit. A plaint has to be rejected only if as per the averments made therein, it is barred by law, and therefore, as long as the averments made in the plaint prima facie establish that this Court has territorial jurisdiction, the suit cannot be rejected under Order VII Rule 11 of CPC.
13. I have also considered the decision in M/S Mountain Mist Agro India (Pvt) Ltd & Anr. Vs. Mr S. Subramaniyam., but find that in the said case the Court was dealing with the situation where the plaintiff did not have any office in Delhi and it was found that its address of New Delhi was a “care of address”. Furthermore, there was nothing to show that any part of the cause of action had arisen at New Delhi and therefore the Court held that mere presentation of the cheques at Delhi would not be sufficient to clothe this Court with territorial jurisdiction. In the present case, it is an admitted position that the Payment Certificate dated 03.10.2019, which forms an important ingredient of the cause of action was issued at Delhi and therefore this decision would be wholly inapplicable to the instant case.
14. For the aforesaid reasons, I find no merit in the application, which is, accordingly, dismissed.
15. Since the right of the defendants to file written statement already stands closed and the defendants have also not filed any affidavit admitting or denying the plaintiff‟s documents, the said documents are deemed to be admitted.
16. It is however made clear that though the right of the defendants to file written statement stands closed, it will be still open for the defendants to cross-examine the plaintiff‟s witnesses.
17. List before the learned Joint Registrar for recording of the plaintiff‟s evidence on 03.10.2023.
JUDGE AUGUST 11, 2023