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1996 Supreme(Del) 192
High Court Of Delhi
STATE BANK OF INDIA - Appellant
Versus
SANJEEV MALIK - Respondent
Decided On : 02/15/1996
Where a suit for personal decree and property decree is filed in a Court having jurisdiction over the personal decree but not over the property decree, the entire plaint cannot be returned under Order 7, Rule 10 CPC. The Court should proceed with the plaint for personal decree and declare its inability to grant relief against the property outside its jurisdiction.
Headnote:
JURISDICTION - MORTGAGE SUIT - PERSONAL DECREE - PROPERTY DECREE - RETURN OF PLAINT - ORDER 7, RULE 10 CPC - ORDER 23, RULE 1 CPC - SECTION 16 CPC - SECTION 14 LIMITATION ACT - Where a suit for personal decree and property decree is filed in a Court having jurisdiction over the personal decree but not over the property decree, the entire plaint cannot be returned under Order 7, Rule 10 CPC. The Court should proceed with the plaint for personal decree and declare its inability to grant relief against the property outside its jurisdiction. The plaintiff can be asked to amend the plaint by deleting the relief outside the jurisdiction. Failing that, the Court may strike off that part of the plaint on the ground of want of jurisdiction, which would mean that the right to that relief could be pursued in the Court having proper jurisdiction.
Fact of the Case:
The State Bank of India filed two suits in the Delhi High Court, one for recovery of Rs. 7,20,337.39 and the other for recovery of Rs. 7,98,247.37, against the defendants, who were residents of Delhi. The suits were based on loan agreements secured by equitable mortgages of properties located in Gurgaon, which were outside the jurisdiction of the Delhi High Court. The defendants filed written statements denying the transactions and raising various objections. The Bank filed an application under Order 23, Rule 1(3) CPC, seeking permission to withdraw the suits in so far as they related to the sale of the mortgaged property and to proceed with the suits for personal decrees against the defendants. The learned Single Judge returned the entire plaints under Order 7, Rule 10 CPC, observing that the Bank could seek exclusion of time lost in prosecuting the suits before the Delhi High Court under Section 14 of the Limitation Act.
Finding of the Court:
The Court held that the Delhi High Court had jurisdiction to grant a personal decree for money against the defendants, but it could not pass a mortgage decree against the properties located in Gurgaon due to Section 16 of the Code of Civil Procedure. The Court further held that the entire plaint could not be returned under Order 7, Rule 10 CPC, even if the Court had jurisdiction to grant relief in part. The Court also held that the plaintiff could not be compelled to seek assistance of Section 14 of the Limitation Act so far as the personal remedy at Gurgaon was concerned, if it was barred as on today.
Issues: 1. Whether the Delhi High Court had jurisdiction to grant a personal decree for money against the defendants, but it could not pass a mortgage decree against the properties located in Gurgaon due to Section 16 of the Code of Civil Procedure? 2. Whether the entire plaint could be returned under Order 7, Rule 10 CPC, even if the Court had jurisdiction to grant relief in part? 3. Whether the plaintiff could be compelled to seek assistance of Section 14 of the Limitation Act so far as the personal remedy at Gurgaon was concerned, if it was barred as on today?
Ratio Decidendi: 1. The Court relied on Section 20(a) of the Code of Civil Procedure, which provides that a suit against the defendants 1 to 4 lies at Delhi in view of Section 20 (a) because the defendants 1 to 4 reside within the jurisdiction of this Court. But properties being at Gurgaon, Section 16 comes into play and a mortgage decree cannot be passed at Delhi. 2. The Court relied on various case laws to hold that the entire plaint cannot be returned if the Court has jurisdiction to grant relief in part. The Court held that the Court should proceed with the plaint in so far as the relief for personal decree is concerned and declare its inability to grant relief against the property outside its jurisdiction. 3. The Court held that the plaintiff could not be compelled to seek assistance of Section 14 of the Limitation Act so far as the personal remedy at Gurgaon was concerned, if it was barred as on today.
Final Decision: The Court allowed the appeals of the Bank and directed the plaints to be retained in the Delhi High Court. The suits were to proceed to the extent of considering the claims for a personal decree. The relief against the properties of the defendants allegedly mortgaged by the defendants was to be ignored as a surplusage by the Delhi High Court and no relief for a mortgage decree was to be considered. The refusal to consider the relief against the property being based on the jurisdiction of the Delhi High Court under Section 16 CPC, the said refusal would not come in the way of the suit for mortgage decree at Gurgaon being considered in relation to the property of the defendants at Gurgaon.
( 1 )
( 2 ) THESE two appeals have been preferred TO by the plaintiff, the State Bank of India, against orders passed by the learned Single Judge returning the respective plaints in the two suits under Order 7, Rule 10 Civil Procedure Code for presentation before the Court at Gurgaon, observing that the Bank can seek exclusion of lime under Section 14 of the Limitation Act.
( 3 ) AS the point arising in the two appeals (each of which arise out of a separate suit) is common, it is sufficient to take up the facts as they arise in FAO (OS) 39/95. That FAO arises out of Suit 1086/84. The suit is for recovery of Rs. 7,20,337. 39. (FAO (OS) 40/95 arises out of Suit 1087/84 and that is for recovery of Rs. 7,98,247. 37 ).
( 4 ) IN Suit 1086/84, the 1st defendant is Mr. Inder Raj Malik (Sole Proprietor of M/s Ruby which is engaged in wrist-watch business ). Mr. Sanjiv Malik s/o Mr. J. R. Malik, Mrs. Malik,and Mr. Anil Malik are the defendants 2 to 4, being son, wife, and son respectively of late Mr. J. R. Malik. The factory of the defendant is located at 6/9 Kirti Nagar, New Delhi. From 1979, the State Bank of India was giving financial assistance under cash-credit facilities. On 11. 4. 1979, cash- credit was given upto Rs. 2 lakhs limit with 2-1/2% below SBI advance rate. Security was given by Shri Janak Malik (now deceased) by letter dated 11. 4. 1979 and promissory note was also forwarded on same date payable to J. R. Malik and Sanjiv Malik and order by M/s Ruby for Rs. 2 lakhs with interest at 2-1/2% below SBI rate by letter dated 11. 4. 1979. In the event of default the guarantor Mr. J. R. Malik was liable. The said pronote was endorsed by Mr. J. R. Malik and Sanjiv Malik in favour of the plaintiff Bank. The defendant, for the purpose of securing the loan facility, hypothecated his goods with the Bank. The value thereof is Rs. 7,12,447. 00. The 1st defendant also created an equitable mortgage in favour of the Bank by depositing at Kirti Nagar Branch on 11. 1. 1980, title deeds of the property at Gurgaon of Jsisa Tyres (P) Ltd, having its head office at New Delhi together with a copy of resolution of the Board of that company dated 11. 11. 1980, to secure the loan granted to M/s Kaveri and M/s Ruby.
( 5 ) LATER the cash credit was extended to Rs. 4 lakhs under agreement dated 5. 9. 1991, interest was agreed at 1/2% below SBI rate subject to maximum 16% per annum with quarterly rests. This loan was secured by J. R. Malik and Sanjiv Malik (2nd defendant) by letter dated 5. 9. 1991, pronote by M/s Ruby in favour of J. R. Malik andsanjiv Malik etc. Further mortgage was created by deposit of title deeds of properties enumerated in para 8 of the plaint belonging to defendants 1 to 4 at Gurgaon.
( 6 ) ON 31. 12. 1982, defendant I executed a balance confirmation slip for Rs. 5,82,068. 73. Thereafter, there was default, demand by plaintiff by registered letter dated 21. 1. 1983, the plaint dated 1. 6. 1984 is for Rs. 7,20,337. 39, for a preliminary mortgage decree under Order 34, Rules 4,5,6 for sale of the mortgaged property at Gurgaon and personal decree against defendants 1 to 4 plus further interest at 15% + 3% on the above amount, based on title deeds of defendants 1 to 4 deposited with the Bank.
( 7 ) IN other words, the Bank filed the suit in the Delhi High Court, on its Original Side, seeking a personal decree against defendants 1 to 4, who are residents of Delhi and for a decree for sale of the mortgaged property which was located in Gurgaon, belonging to defendants 1 to 4, outside the Jurisdiction of Delhi High Court.
( 8 ) WRITTEN statement was filed by defendants 1 to 4 dated 3. 10. 1985, raising various questions, mainly of fact, denying the transactions.
( 9 ) CERTAIN orders passed by this Court in Order 1, Rule 10 and Order 6, Rule 17 applications relating to sureties, M/s Jsisa Tyres and Co. have now to be REFERRED TO to. The appellant Bank filed I. A. 6627/85 on 10. 10. 1985 for certain clarificatory
