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2014 Supreme(Del) 1976
High Court of Delhi
MANMOHAN SINGH, J.
Devendra Kumar Mishra
Versus
Agarwal Associates (Promoters) Ltd.
CS(OS). No. 1618 of 2012
Decided on : 25-08-2014
For the Plaintiff:Nalin Tripathi, Advocates.
For the Defendant:Dinesh Kr. Gupta, With Vidit Gupta, Advocates.
The main legal point established in the judgment is the court's authority to determine jurisdiction, maintainability of the suit, and the power to direct the deposit of disputed amounts and possession of property under relevant provisions of the Civil Procedure Code.
Headnote:
Jurisdiction - Civil Procedure Code - Order 7 Rule 11, Section 151 CPC - Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr. (2005) 7 SCC 791, K.K. Mehta & Anr. v. Paras Poly Films (P) Ltd. & Ors. 2014 (143) DRJ 307, Narinder Kumar Soni vs. M/s Sunshine Roadways 1999 RLR 201, Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success, (2004) 9 SCC 512, Saleem Bhai and Ors. vs. State of Maharashtra, AIR 2003 SC 759, Popat and Kotecha Property vs. State Bank of India Staff Association, (2005)7 SCC 510, Hakam Singh v. M/S Gammon (India) Pvt. Ltd. 1971 (1) SCC 286, A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem 1989 (2) SCC 163 - The court dismissed the defendant's application under Order 7 Rule 11 CPC for rejection of the plaint and allowed the plaintiff's application under Order 39 Rules 1 & 2 CPC, directing the plaintiff to deposit the disputed amount with the court and ordering the defendant to hand over possession of the suit property to the plaintiff.
Fact of the Case:
The plaintiff filed a suit for declaration and injunction against the defendant regarding a property dispute. The defendant filed an application under Order 7 Rule 11 CPC for rejection of the plaint, citing lack of jurisdiction and other grounds. The plaintiff also filed an application under Order 39 Rules 1 & 2 CPC.
Finding of the Court:
The court dismissed the defendant's application under Order 7 Rule 11 CPC and allowed the plaintiff's application under Order 39 Rules 1 & 2 CPC, directing the plaintiff to deposit the disputed amount with the court and ordering the defendant to hand over possession of the suit property to the plaintiff.
Issues: Jurisdiction of the court, maintainability of the suit, rejection of plaint under Order 7 Rule 11 CPC, and deposit of disputed amount under Order 39 Rules 1 & 2 CPC.
Ratio Decidendi: The court held that the plaintiff's suit was maintainable within the court's jurisdiction, and the defendant's application for rejection of the plaint was dismissed. The court also directed the plaintiff to deposit the disputed amount with the court and ordered the defendant to hand over possession of the suit property to the plaintiff.
Final Decision: The court dismissed the defendant's application under Order 7 Rule 11 CPC and allowed the plaintiff's application under Order 39 Rules 1 & 2 CPC, directing the plaintiff to deposit the disputed amount with the court and ordering the defendant to hand over possession of the suit property to the plaintiff.
Manmohan Singh, J. (Oral):
1. By this order I propose to decide I.A. No. 14783/2013 filed by the defendant under Order 7 Rule 11 read with Section 151 CPC for seeking rejection of the plaint and I.A. No. 10557/2012 filed by the plaintiff under Order 39 Rules 1 & 2 CPC.
2. Plaintiff had filed a suit for declaration and injunction against the defendant seeking a decree of declaration that demand letter dated 15th May, 2012 is illegal, unjust and improper and a decree of permanent injunction, restraining the defendant from preventing the plaintiff and his family members from using and enjoying the suit property bearing flat No. T-1, 3rd Floor, Aditya Mega Citi, Vaibhan Khand, Indrapuram.
3. Brief facts of the case are that the plaintiff booked a flat by making an initial deposit/payment of booking amount of Rs. 2,10,000/- with the defendant and he was allotted the suit property that was to be delivered within 12 months on the basis of a Builder Buyer Agreement/Allotment Agreement dated 30th March, 2007 (hereinafter referred to as the “agreement”).
4. Vide letter dated 6th April, 2007, the defendant communicated the schedule of payment to the plaintiff wherein it was stated that a sum of Rs. 18,91,250/- was to be paid by plaintiff by 10th April, 2007 and balance Rs. 1,12,250/- alongwith Interest Free Maintenance Deposit (IFMS @24/- per sq feet) at the time of handing over possession. It is averred by the plaintiff that he made the entire payment of Rs. 19,00,000/- in respect of the suit property as detailed in Para 9 of the plaint. The same is reproduced hereunder:
“9. That the plaintiff made the entire payment in respect of the “suit property” @ Rs. 19,00,000.00 against the demand of Rs. 18,91,250.00 in the following manner:
(i) Rs. 10.00 Lacs vide cheque no. 065406 drawn on Nainital Bank Ltd., Panchkuinya Road, New Delhi.
(ii) Rs. 5.00 Lacs vide cheque no. 065413 drawn on Nainital Bank Ltd., Panchkuinya Road, New Delhi.
(iii) Rs. 4.00 Lacs vide cheque no. 065415 drawn on Nainital Bank Ltd., Panchkuinya Road, New Delhi.”
5. Upon receipt of the said payments, the defendant sent a letter dated 8th May, 2008 offering possession of the suit property to the plaintiff. However on inspection of the suit property the plaintiff noticed that construction work therein was incomplete. Subsequently, various communications took place between the parties. The defendant vide letter dated 16th June, 2011 asked the plaintiff to complete formalities and take possession by 21st June, 2011.
6. It has been stated that when the plaintiff inspected the suit property which was still incomplete and contacted the defendant, the defendant asked the plaintiff to make the balance payment and only then would the defendant complete the suit property and make it ready to use. The plaintiff made full and final payment towards the cost of the suit property and vide letter dated 9th July, 2011 asked the defendant to complete the suit property and handover the possession thereof to the plaintiff.
7. As per the plaintiff, there is no outstanding payment which the plaintiff is liable to make. However, the defendant failed to handover the possession of the suit property to the plaintiff and rather issued a demand letter dated 15th May, 2012 which the plaintiff alleges to be illegal, unjust and improper. Aggrieved thereof the plaintiff filed the present suit and the interim application. The plaintiff in his application has prayed that the defendant be directed to hand over the possession of the suit property and the plaintiff not be prevented by the defendant or any other person on his behalf from the peaceful use and enjoyment of the same till disposal of suit. In reply dated 19th May, 2012 to the demand notice issued by the defendant, the plaintiff denied the demand of the defendant. The relevant portions of the reply are reproduced as under:
“1) At the outset, I would like to mention that I had paid Rs. 40000/- extra money as charges of legal registr
