Full Text
HIGH COURT OF DELHI
Date of Decision: 23.10.2018
OCTAGA GREEN POWER & SUGAR CO LIMITED..... Petitioner
Through: Mr. K.K. Khurana, Advocate.
Through: None.
JUDGMENT
VINOD GOEL, J.
CM No.40153/2018 (for exemption)
1. Allowed, subject to all just exceptions. CM No.40154 of 2018 (delay)
2. For the reason stated in the application, the delay in re-filing the petition is condoned. The application stands disposed of.
3. The order dated 27.03.2018 passed by the Court of learned Additional District Judge-05 (ADJ), Patiala House Court, New Delhi is the subject matter of challenge in this Civil Revision Petition.
4. The respondent/plaintiff filed a civil suit for recovery of Rs.8,39,171/- 2018:DHC:6870 against the petitioner. The petitioner/defendant, in its written statement, inter-alia, pleaded that the Court in Delhi has no jurisdiction to try the suit. The petitioner also filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for the rejection of the plaint on the plea that no cause of action has accrued in Delhi and the suit is barred under Section 20 (c) of the CPC.
5. Learned counsel for the petitioner, Sh. Khurana contends that the pleadings of the respondent contained in paras 4 and 17 of the plaint suggesting that all negotiations that took place between the parties in Delhi are false and concocted; the entire cause of action took place at Mumbai where the respondent provided the petitioner their professional services regarding custom clearance, freight forwarding etc.; the learned ADJ did not consider the statement of account dated 30.01.2014 filed by the respondent along with the plaint reflecting the transactions having taken place between the parties at Mumbai; the respondent has filed the suit with mala fide intention to trouble the petitioner to travel thousands of kilometres from Mumbai to Delhi; even if it is assumed that some part of cause of action accrued in Delhi, it is writ large on the face of the record that major cause of action accrued at Mumbai and it is only the courts at Mumbai, which have the jurisdiction to try the suit between the parties and lastly that no cause of action, wholly or in part, has accrued in Delhi. Learned Counsel for the petitioner has relied upon the judgments of the Hon‟ble Supreme Court in (1) Patel Roadways Limited vs. Prasad Trading Company and Others, AIR 1992 SC 1514, (2) Unimers India Limited Vs. The IFCI Limited and Ors., 197 (2013) DLT 693, and (3) T. Arivandandam V. T.V. Satyapal 1977 (4) SCC 467, to urge that the suit is not maintainable in the Courts at Delhi.
6. While dismissing the application of the petitioner/defendant by the impugned order dated 27.03.2018, the learned ADJ after referring to Para 7 and 17 of the plaint observed as under: - “It is settled law that for deciding whether the court has got jurisdiction to entertain and try the suit, only the averments made in the plaint are to be seen. From the averments made in the plaint, a part of cause of action arose at the Delhi office of the plaintiff. Determination of jurisdiction is a mixed question of law and fact which is to be decided after the evidence is led by the parties. The judgments relied upon by Ld. Counsel for the defendant are not applicable to the facts of the present case. The application is therefore, dismissed. No order as to costs.”
7. In A.B.C. Laminart (P) Ltd. vs. A.P. Agencies, (1989) 2 SCC 163, while defining „cause of action‟, the Hon‟ble Supreme Court observed as under: -
must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.”
8. Sections 16 to 20 of the CPC deal with the territorial jurisdiction of the court (place of suing). Whereas Sections 16 to 18 relate to immovable property, suits for compensation for wrongs to persons or movables have been dealt with under Section 19. Section 20 of the CPC is a residuary provision and covers all cases not falling under Sections 16 to 19.
9. The relevant para of Section 20 reads as under: -
10. A bare reading of sub-section (c) of Section 20 CPC leaves no room for doubt that a suit would lie in a court within the local limits of whose jurisdiction the cause of action has arisen, wholly or partly. In fact, Section 20 CPC has been designed to secure that justice might be brought as near as possible to every man‟s hearthstone and that the defendant should not be put to the trouble and expense of travelling long distances in order to defend himself.
11. It would be relevant to reproduce the relevant para of the plaint: -
12. The aforesaid paragraphs of the plaint unambiguously indicate that a part of the cause of action has accrued to the respondent within the local limits of Delhi. This certainly provides privilege to the respondent to file the suit in the courts at Delhi.
13. Very recently in Chhotanben and Another. Vs. Kirtibhai Jalkrushnabhai Thakkar and other, (2018) 6 SCC 422, the Hon‟ble Supreme Court has held that what is relevant for answering an application under Order VII Rule 11(d) CPC, is to examine the averments made in the plaint as a whole. The defence available to the defendants or plea taken by them in the written statement or application cannot be the basis to decide the application under Order VII Rule 11 CPC. Para 15 of the said judgment reads as under: -
14. In Ramesh B. Desai and Others. Vs. Bipin Vadilal Mehta and Others, (2006) 5 SCC 638, the Hon‟ble Supreme Court, while considering Order VII Rule 11 CPC, held “16............ to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by clause
(d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence..........”
15. The Hon‟ble Supreme Court in Saleem Bhai and Ors. Vs. State of Maharashtra and Ors., 2003 (1) SCC 557, held that the trial court can exercise its power under Order 7 Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial and for the said purpose averments in the plaint are germane and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
16. Similarly, in Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others, (2006) 3 SCC 100, the Apex Court reiterated that to consider the rejection of plaint, the court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court. Para 12 of the said judgment reads as under: -
17. While considering the present facts as pleaded in Para 4 and 17 of the plaint on the touchstone of the law, laid down by the Hon‟ble Supreme Court, it is clear enough that the part of the cause of action as pleaded in the plaint has accrued to the plaintiff against the petitioner in Delhi. Further, the learned ADJ has rightly observed that determination of the jurisdiction is a mixed question of law and fact, which can be adjudicated only after the parties adduce their respective evidence.
18. In view of the above discussion, I do not find any illegality or infirmity in the petition. The same is accordingly dismissed with no order as to costs.