( 1 ) THE plaintiff has filed a suit for specific performance of the Agreement dated 15-9-1987 entered into with the defendants in respect of space No. 149, The shopping Mall, DLF Qutab Enclave Complex, gurgaon. It is the case of the plaintiff that the plaintiff paid the initial amounts but subsequently the "defendants arbitrarily increased the covered area and sought further amounts from the plaintiff, which was in violation of the Agreement. The disputes between the parties resulted in the defendant ultimately issuing a letter dated 2-5-1997 informing the plaintiff that the space has been cancelled for non-payment of dues by the plaintiff but the Agreement could be restored if the full amount claimed along with the holding charges were paid. Since the disputes, did not get resolved the suit was filed. The prayer made in the suit is as under : "it is, therefore, respectfully prayed that this Hon'ble Court may be pleased to pass a decree in favour of the plaintiff and against the defendant, directing the defendant to execute the sale deed in respect of property no. 149, "the Shopping Mall", DLF Qutab enclave, Gurgaon, in favour of the plaintiff.

( 2 ) DEFENDANT No. 1 has contested the suit on various grounds. The defence on the merits is that the plaintiff has failed to pay the amounts under the Agreement. It has also been stated that the same was conveyed to M/s. Apollo Land and Housing Finance Limited, defendant No. 2. One of the preliminary objections raised is of lack of territorial jurisdiction to try the present suit since the property is situated in Gurgaon and defendant No. 2 has a registered office also in gurgaon Haryana.

( 3 ) ON the pleadings of the parties, issues were framed on 17-1-2007 and issue no. 6 was directed to be treated as preliminary issue, which reads as under : "6. Whether the suit is barred on account of territorial jurisdiction ? OPD"

( 4 ) LEARNED counsel for the parties have put forth their respective case in respect of the aforesaid.

( 5 ) INSOFAR as the factual matrix of the case is concerned it is not in dispute that the Agreement between the parties has clause 50, which reads as under : "50. That the High Court of Delhi at New delhi or Courts subordinate to it, alone shall have jurisdiction in all matters arising out of, touching and/or concerning this transaction. "

( 6 ) THUS the pre-formatted Agreement in the printed form of defendant No. 1 itself contains a clause conferring jurisdiction on this Court. In paragraph 16 of the plaint, which is the paragraph dealing with the territorial jurisdiction, the following has been stated :

" 16. That the plaintiff resides within the jurisdiction of this Hon'ble Court and the defendant also has its office at Parliament street, New Delhi and, therefore, this hon'ble Court has the jurisdiction to entertain and adjudicate upon the present suit. Even otherwise also as per clause 50 of the agreernent, this Hon'ble Court has jurisdiction to entertain and adjudicate upon the present suit. "

( 7 ) LEARNED counsel for the defendants contends that the aforesaid Clause 50 would not confer jurisdiction on the Courts in Delhi since the settled legal position is that jurisdiction by consent can be conferred only on a Court where some cause of action arises and which is one of the Courts which may have jurisdiction. Thus, by consent the jurisdiction cannot be conferred on a Court which has no jurisdiction at all. Learned counsel has referred in extenso to the judgment of the Apex Court in Harshad Chiman lal Modi v. DLF Universal Ltd. (2005) 7 SCC 791 : (AIR 2005 SC 4446) which is against the same defendants and the prayer clause sought the relief of declaration of a valid and existing contract in respect of a plot located in DLF, Qutab Enclave Complex in Gurgaon. A decree for specific performance, a decree for permanent injunction and a decree for delivery of possession of the plot was sought. A preliminary issue had been framed about the jurisdiction of the Delh

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