Jagdish Kumar v. M/S Accura Infotech Private Limited & Anr

1. The petitioner challenges the order dated 08.10.2018 in CS 488/2017 whereby an application under Order 1 Rule 10(2) Code of Civil Procedure, 1908 filed on behalf of respondent no.2 bank was allowed and bank was deleted from the array of parties.

2. Mr. Javed Ashraf Khan, learned counsel for the petitioner submits that the respondent no.2 never had any objection at the time when the notices were issued of the suit and it was later on that application under CM(M) 407/2019 2 Order 1 Rule 10(2) of CPC, 1908 was filed seeking deletion of the bank from the array of the parties.

3. Mr. Khan submits that though the privity of contract did not exist between the petitioner and the respondent no.2, however, the ATM machine of respondent no.2 was admittedly placed in the suit property which was leased out to respondent no.1.

4. That apart, Mr. Khan also submits that an amount of Rs.1,00,000/- by way of a demand draft on 08.01.2015 on account of the arrears of rent for the said area where the ATM machine of respondent no.2 was fixed was also paid to the petitioner by respondent no.2. On that basis learned counsel submits that the said payment, at page 39 of the present petition, ought to be considered as an admission of the fact that respondent no.2, in fact, occupied the subject suit premises.

5. Learned counsel submits that having regard to the aforesaid, deletion of the name of the respondent no.2 from the array of parties, vide the impugned order is incorrect, untenable and causes grave prejudice to the petitioner.

6. Mr. Khan, learned counsel for the petitioner also submits that respondent no.1 has not been appearing and since the subject suit premises was admittedly in possession of the bank, the arrears ought to be paid by the bank directly to the petitioner.

7. Per contra, Mr. Singh, learned counsel appearing for the respondent bank draws attention of this Court to the lease agreement annexed to the present petition to submit two things. First, that the property is situated in Sahibabad and does not fall within the territorial jurisdiction of this Court; and second, that admittedly, the agreement has CM(M) 407/2019 3 been executed between the petitioner on the one hand and respondent no.1 on the other and therefore, there is no privity of contract between the petitioner and respondent no.2. On that basis Mr. Singh, learned counsel for respondent no.2 submits that the present suit does not lie against the respondent no.2 at all.

8. Learned counsel also submits that the question of the very maintainability of the suit itself on the question of jurisdiction, has also been raised by the respondent no.2, inasmuch as neither the agreement to lease was executed in Delhi nor the property is within the territorial jurisdiction of the learned trial court.

9. Learned counsel submits that the payment of Rs.1,00,000/- was under duress and therefore the same would not be considered as an admission on the part of the respondent bank, especially when there is no document executed between the parties to maintain the said suit.

10. This Court has considered the rival submissions of the parties and perused the impugned order as well as the lease agreement as placed on record.

11. A perusal of the lease agreement filed along with the petition makes it clear that the said agreement was not executed within the territorial jurisdiction of Delhi and also admittedly the property whereon the said ATM machine of respondent no.2 was placed, is also not within the territorial jurisdiction of the learned trial court. Mere reference to the fact that suit can be filed and all disputes pertaining to the agreement would be subject to the exclusive jurisdiction of courts at Delhi in clause 27 of the agreement, would not confer such jurisdiction where none has arisen. CM(M) 407/2019 4

12. It is trite that parties can confer jurisdiction on a court, provided the said court would have even a part of cause of action arising therein. However, in the present case, there is no such averment or submission made on behalf of the petitioner.

13. That apart, admittedly there is no privity of contract between the petitioner and respondent no.2. There is no obligation on behalf of respondent no.2 to make any payment to the petitioner.

14. The impugned order has considered the contentions raised by the petitioner and has correctly come to the conclusion that there is no privity of contract between the parties and as such the respondent no.2 is neither a proper nor a necessary party to the suit.

15. In view of the above, this Court does not find any merits in the present petition and the petition is dismissed without any costs. Pending application also stands disposed of.