Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% I.A. No. 9747/2005 in
C.S. (OS) No. 2423 of 1999
th
+ Date of Decision: 26 May, 2008
# Sanober Vir ...Plaintiff
! Through: Mr. Rakesh Aggarwal, Advocate
versus
$ Mr. Ashutosh Garg & Ors. ...Defendants
^ Through : Mr. Manish Vashisht, Mr. Rikki
Gupta and Mr. Sameer Vashisht Advocates.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the
judgment?(No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest?(No)
ORDER
P.K.BHASIN, J:
The defendants 1 & 2 have filed an application under Order
VII Rule 11 and Section 144 read with Section 151 of the Code of
Civil Procedure, 1908( for short „CPC‟) seeking rejection of the
plaint in this suit and by this order I am disposing of that
application.
2. The relevant facts culled out from the pleadings and the
documents on record and about which there is no dispute between
the parties may first be noted. The defendant no.3 Landbase India
Ltd., is a land developer. It has constructed a residential colony by
the name of „The Laburnum Condominium Complex‟ in Sector 28,
Gurgaon. While this Complex was under construction defendants 1
& 2 got allotted one residential Unit No. LGG 114, known as
„Garden Green Town House‟(hereinafter referred to as „the property
in suit‟) in the said Condominium Complex vide agreement dated
27/04/95 executed in their favour by defendant no.3. Under this
agreement the defendants 1 & 2 had the right to have the sale
deed executed either in their own names or in the name of their
nominee. Before the construction of the Complex could be
completed the defendants 1 & 2 decided to assign their rights
under the agreement with defendant no.3 in favour of the plaintiff
and her father and accordingly informed defendant no.3 which in
turn informed the defendants 1 & 2 that it had no objection to the
assignment of their rights subject to their clearing the outstanding
dues. On 30/09/98 the defendants 1 & 2 entered into an
agreement with the plaintiff and her father whereby these
defendants had agreed to assign their rights under the agreement
CS(OS) 2423/99 2
dated 27/04/95 in favour of the plaintiff and her father for a total
consideration of Rs.1,06,00,000/- out of which Rs.15,00,000 were
paid to defendants 1 & 2 and the balance money was agreed to be
paid within 45 days after the grant of clearance by the Appropriate
Authority under the Income Tax Act. The defendant no.3 on the
request of defendants 1 & 2 substituted the names of the plaintiff
and her father as the purchasers and also joined in the execution
of the said agreement as a Confirming Party since finally on the
completion of the construction of the project it only had to execute
the formal sale deed in respect of the suit property and later on the
father of the plaintiff transferred his right under the tri-partite
agreement in her favour and then defendant no.3 accepted the
plaintiff as the sole purchaser of the suit property. It appears that
with mutual understanding of the plaintiff and her father and
defendants 1 & 2 the time for payment of balance price of the
property in suit, which was to be paid within 45 days after the
receipt of clearance under the Income Tax Act, was extended from
time to time and defendants 1 & 2 started receiving the payment
in instalments and by 11th September, 1999 a total sum of Rs.99
CS(OS) 2423/99 3
lacs stood paid to them. At that time disputes started between the
plaintiff and defendants 1 & 2 inasmuch as the plaintiff and her
father were claiming that only seven lacs more were payable by
them while according to the defendants 1 & 2 since the deferred
payments were not paid to them on the due dates they were
entitled to claim interest @ 18% p.a. on the delayed payments as
had been agreed upon by the plaintiff and her father and on that
account a sum of Rs.16,79,819/- had also become payable to
th
them which they demanded vide their letter dated 20
September,1999 whereunder they had also expressed to complete
the sale transaction on payment of this interest amount and the
undisputed balance sale price of seven lacs but the plaintiff and
rd
her father refuted that liability by sending a notice dated 23
September, 1999 through an advocate. According to the plaintiff
there was no such agreement to pay interest. Since the plaintiff
and defendants 1 & 2 could not resolve the dispute regarding
interest payment the plaintiff filed this suit for a decree of specific
performance of the contract dated 30.9.1998 and for possession
CS(OS) 2423/99 4
of the suit property as also for compensation for the delay caused
in handing over the possession thereof.
3. In the written statement filed by defendants 1 and 2 they
have admitted execution of the existence of tri-partite agreement
as also the payment of ninety nine lacs of rupees to them by the
plaintiff. They however reiterated their stand that the plaintiff was
liable to pay interest on the delayed payments and since the same
was not paid the breach of the original contract and the novated
contract was committed by the plaintiff and so they were not
obliged to get the sale deed executed in favour of the plaintiff.
These defendants also took an objection regarding territorial
jurisdiction of this Court on the ground that since the property in
suit is in Gurgaon the suit could be filed there only in view of the
provisions of Section 16 CPC.
4. The defendant no.3 has chosen not to file any written
statement and its counsel made a statement to that effect on
CS(OS) 2423/99 5
17/03/2003 and the reason for that appears to be that this
defendant had already received the entire sale consideration which
it was to get under the original agreement to sell with other two
defendants and it must have been advised that it had to execute
the sale deed in favour of the plaintiff and it had nothing to do with
the fight between the plaintiff and defendants 1 & 2.
5. After filing of the written statement by defendants 1 & 2 they
had moved the present application under Order VII Rule 11 CPC for
rejecting the plaint on the ground that this Court had no territorial
jurisdiction to entertain this suit for specific performance of the
contract in respect the property in suit since it was in the State of
Haryana. The plaintiff filed her reply opposing the same. However,
before this application could be heard and disposed of the plaintiff
moved one application(being IA No.11610/2000) alleging therein
that a sum of Rs.99 lacs out of the total consideration of
Rs.1,06,00,000/- had been paid to defendants no. 1 & 2 and
balance she was ready to pay and the only dispute raised by these
two defendants was with regard to payment of interest amount for
CS(OS) 2423/99 6
which she was ready to give sufficient security and so possession of
the property in suit, which was at that time ready for occupation, be
got delivered to her from defendant no.3 who had not so far
handed over the same either to the plaintiff or to defendants 1 & 2
and the dispute about payment of interest between the plaintiff
and defendants could be decided by this Court in due course.
According to the plaintiff interest amount in any case worked out to
Rs.4,26,329/- which she was ready to deposit in Court. Reply to
that application of the plaintiff was filed only by defendants 1 & 2
and it was stated in the reply that the defendants were still willing
to perform the agreement dated 30/09/98 on payment of last
installment of Rs.7 lacs and upto date interest on the delayed
payment of instalments fixed for Rs.91 lacs. Otherwise, the
application was opposed inter-alia on the grounds that this Court
had no territorial jurisdiction in the matter and that since this Court
had upon an earlier application of the plaintiff under Order XXXIX
Rules 1 & 2 CPC restrained the defendants from alienating the suit
property till further orders the interest of the plaintiff was fully
protected and further that if at all the possession of the property
CS(OS) 2423/99 7
was ordered to be given to the plaintiff and that too without
payment of interest amount claimed by them that would amount to
decreeing the suit itself without disposal of the objection regarding
the territorial jurisdiction of this Court.
6. While allowing the said IA No.11610/2000 vide order dated
15/05/2001 this Court had observed as under:-
“……..They also do not contest the prayer of the plaintiff
for specific performance of Agreement to Sell dated
30.9.1998, subject to the condition that the entire
interest amount as payable according to them be paid.
The plaintiff has contested the liability towards
payment of interest……….Therefore, the controversy in
the suit is confined to the payment of interest only
…………………………………………………………………………………
……………….The admitted position which emerges is
that the plaintiff has paid substantial amount towards
sale consideration; that he is ready to pay the balance
consideration; that the dispute is in respect of interest
only and the defendants do not otherwise challenge
the plaintiff‟s claim for specific performance and that
the plaintiff is ready to secure the defendants‟ claim
qua interest. Having regard to these facts and
circumstances of the case, the application is allowed
subject to following conditions:
A. The plaintiff shall pay balance sale
consideration of Rs.7 lakhs to defendants 1
and 2 within 15 days.
B. The plaintiff shall deposit a sum of Rs.
20 lakhs in this Court within a period of 15
days. This amount is qua disputed interest
CS(OS) 2423/99 8
and if it is ultimately found that defendants
1 and 2 are entitled to interest, the
defendants would remain secured and
would receive the payment from the deposit
made.
C. Without prejudice to the contentions of
both the parties regarding payment of
interest and quantum thereof, defendants 1
and 2 shall be entitled to withdraw a sum of
Rs.4.5 lakhs subject to furnishing of
security to the satisfaction to the Registrar
of this Court.
D. Balance amount shall be kept by the
Registrar in a Bank in fixed deposit initially
for a period of one year.
The defendant no. 3 is directed to handover
the possession of the property to the
plaintiff.
Application stands disposed of.”
7. The defendants 1 & 2 challenged this order in appeal before
a Division Bench of this Court but their appeal(being FAO(OS)
271/2001) was dismissed in limine vide order dated 18/06/2001
which is re-produced hereunder:-
“From a perusal of the impugned order it is seen that it
is in the nature of a consent order. Learned Single
Judge has recorded that appellants did not otherwise
challenge the respondents “Claim for Specific
Performance” and that the respondent was ready to
secure appellants claim qua interest.
The impugned order sufficiently protects the
interest of the appellant as the sale consideration has
CS(OS) 2423/99 9
been directed to be paid to the appellant. Further the
respondent has been required to deposit the entire
amount of interest in court. We find no ground to
interfere with the impugned order in appeal, which
proceeds on the basis of consent and is fair just and
equitable.
Appeal is dismissed.”
8. The plaintiff had deposited in Court a sum of Rs.20 lakhs on
account of interest being claimed by defendants 1 & 2 and also
paid Rs.7 lakhs to defendants 1 & 2 being the balance of sale
consideration, pursuant to the aforesaid order dated 15/05/2001.
After the dismissal of their appeal against the order dated
15/05/2001 the defendants 1 & 2 withdrew a sum of Rs.4.5 lakhs
out of the interest amount deposited in Court. On 18/06/2001
itself, when the appeal was dismissed, the defendant no. 3 handed
over the possession of the property in suit to the plaintiff as it was
directed to do by this Court. It appears that the plaintiff thereafter
approached the defendant no.3 for executing the sale deed also
which it was supposed to execute in terms of the tri-partite
agreement between the parties and the defendant no.3 accepted
that request and executed a sale deed in favour of the plaintiff on
CS(OS) 2423/99 10
08/08/2001 and got it registered also on 10/08/2001. The case
thereafter was fixed for framing of issues and it also appears that
the defendants 1 & 2 must have realized that since defendant no.3
had already executed the sale deed in favour of the plaintiff the
prayer of specific performance of contract made in the suit by the
plaintiff stood satisfied and so thereafter they never asked for
disposal of their application under Order VII Rule 11 CPC which
they had filed in the year 2000. However, in the year 2005 the
defendants 1 & 2 once again filed an application under Order VII
Rule 11 CPC and Section 144 CPC, which is now being disposed of
by this order and in this application once again they have prayed
for rejection of the plaint on the ground that this Court has no
territorial jurisdiction to try this suit for specific performance of the
agreement to sell in respect of the immovable property situate in
Gurgaon. It has also been claimed in the application that the order
dated 15/05/2001 passed by this Court whereby possession of the
property in suit was ordered to be given to the plaintiff needed to
be recalled since no such direction could be given by this Court
because of lack of territorial jurisdiction and consequently the
CS(OS) 2423/99 11
possession of the property in suit was liable to be restored back by
the plaintiff and parties put in the same position as existed before
the passing of the order dated 15/05/2001.
9. This application has been opposed by the plaintiff inter alia
on the grounds that this application is an abuse of process of law
inasmuch as the possession of the property in suit was handed
over to the plaintiff after defendants had restricted their defence
only to their claim of interest and the same was recorded by this
Court in the order dated 15/5/2001 which is now sought to be
recalled. Another ground of opposition taken is that the relief of
specific performance of contract in any case does not survive since
the defendant no.3 itself, which only was to execute the title
document in favour of the plaintiff, has already executed the sale
deed also on 10/08/2001 and the issue which now remains for
decision is only the claim of interest being raised by defendants 1
& 2 and so the question of territorial jurisdiction also does not
survive.
CS(OS) 2423/99 12
10. I have heard the counsel for the defendants 1 & 2 and the
plaintiff. Learned counsel for defendants cited many judgments
also on the point of territorial jurisdiction of Courts in suits for
specific performance of contracts relating to immovable properties.
11. In my view from the foregoing narration of the factual
background of this case itself it becomes clear that this application
filed by defendant Nos. 1 and 2 is an abuse of process of law. As
noticed already, when the plaintiff‟s application for directions to the
defendant No.3 to handover possession of the suit property to her
was taken up for hearing the defendant Nos. 1 and 2 had claimed
that they were not challenging the plaintiff‟s claim for specific
performance of contract in respect of property in suit in case they
were paid the entire interest amount being claimed by them. In
the order dated 15.5.2001 it was categorically observed that the
dispute between the parties was in respect of interest only and
taking into consideration the fact that the defendant Nos. 1 and 2
CS(OS) 2423/99 13
at that time had restricted themselves only to their claim of
interest, this court had passed an order directing defendant No.3 to
handover the possession of the suit property to the plaintiff. Even
though the defendant Nos. 1 and 2 had challenged that order
before the Division Bench, but the Division Bench also noticed the
fact that the said direction to defendant No.3 had been given in
view of the consent given on behalf of these two defendants.
Thereafter, as also noticed already, even though defendant No.3
was not directed to execute the sale deed in respect of suit
property, but on being approached by the plaintiff for the execution
of the sale deed in her favour the defendant No.3 executed sale
deed. In these circumstances, the plaintiff‟s claim, as far as
specific performance of contract by directing defendant No.3 to
execute the sale deed in respect of property in suit in favour of the
plaintiff and to handover the possession thereof stood satisfied.
Defendant Nos. 1 and 2 thereafter did not raise any objection
regarding the execution of the sale deed in favour of the plaintiff by
defendant No.3 which shows that it had really nothing to object to
that act of defendant No.3. I am in full agreement with the
CS(OS) 2423/99 14
submission of learned counsel for the plaintiff that since claim of
the plaintiff for specific performance of contract stands fully
satisfied, the only dispute which this court now has to resolve is
with regard to the claim of interest of defendant Nos. 1 and 2
against the plaintiff and for deciding that controversy this court
certainly has the territorial jurisdiction. There is no doubt that in all
the judgments cited by learned counsel for defendant Nos. 1 and 2
it had been held that suit for specific performance of contract in
respect of immovable property would lie only before that court
within whose jurisdiction the property is situated, but now that in
the present case that claim of the plaintiff no longer survives for
adjudication having been satisfied by the defendants themselves,
the present application filed by defendant Nos. 1 and 2 for
rejecting the plaint is without any merit and so liable to be rejected.
I.A. No. 9747/2005 is accordingly rejected with costs of
Rs.10,000/-.
May 26, 2008 P.K.BHASIN, J.
CS(OS) 2423/99 15
% I.A. No. 9747/2005 in
C.S. (OS) No. 2423 of 1999
th
+ Date of Decision: 26 May, 2008
# Sanober Vir ...Plaintiff
! Through: Mr. Rakesh Aggarwal, Advocate
versus
$ Mr. Ashutosh Garg & Ors. ...Defendants
^ Through : Mr. Manish Vashisht, Mr. Rikki
Gupta and Mr. Sameer Vashisht Advocates.
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the
judgment?(No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest?(No)
ORDER
P.K.BHASIN, J:
The defendants 1 & 2 have filed an application under Order
VII Rule 11 and Section 144 read with Section 151 of the Code of
Civil Procedure, 1908( for short „CPC‟) seeking rejection of the
plaint in this suit and by this order I am disposing of that
application.
2. The relevant facts culled out from the pleadings and the
documents on record and about which there is no dispute between
the parties may first be noted. The defendant no.3 Landbase India
Ltd., is a land developer. It has constructed a residential colony by
the name of „The Laburnum Condominium Complex‟ in Sector 28,
Gurgaon. While this Complex was under construction defendants 1
& 2 got allotted one residential Unit No. LGG 114, known as
„Garden Green Town House‟(hereinafter referred to as „the property
in suit‟) in the said Condominium Complex vide agreement dated
27/04/95 executed in their favour by defendant no.3. Under this
agreement the defendants 1 & 2 had the right to have the sale
deed executed either in their own names or in the name of their
nominee. Before the construction of the Complex could be
completed the defendants 1 & 2 decided to assign their rights
under the agreement with defendant no.3 in favour of the plaintiff
and her father and accordingly informed defendant no.3 which in
turn informed the defendants 1 & 2 that it had no objection to the
assignment of their rights subject to their clearing the outstanding
dues. On 30/09/98 the defendants 1 & 2 entered into an
agreement with the plaintiff and her father whereby these
defendants had agreed to assign their rights under the agreement
CS(OS) 2423/99 2
dated 27/04/95 in favour of the plaintiff and her father for a total
consideration of Rs.1,06,00,000/- out of which Rs.15,00,000 were
paid to defendants 1 & 2 and the balance money was agreed to be
paid within 45 days after the grant of clearance by the Appropriate
Authority under the Income Tax Act. The defendant no.3 on the
request of defendants 1 & 2 substituted the names of the plaintiff
and her father as the purchasers and also joined in the execution
of the said agreement as a Confirming Party since finally on the
completion of the construction of the project it only had to execute
the formal sale deed in respect of the suit property and later on the
father of the plaintiff transferred his right under the tri-partite
agreement in her favour and then defendant no.3 accepted the
plaintiff as the sole purchaser of the suit property. It appears that
with mutual understanding of the plaintiff and her father and
defendants 1 & 2 the time for payment of balance price of the
property in suit, which was to be paid within 45 days after the
receipt of clearance under the Income Tax Act, was extended from
time to time and defendants 1 & 2 started receiving the payment
in instalments and by 11th September, 1999 a total sum of Rs.99
CS(OS) 2423/99 3
lacs stood paid to them. At that time disputes started between the
plaintiff and defendants 1 & 2 inasmuch as the plaintiff and her
father were claiming that only seven lacs more were payable by
them while according to the defendants 1 & 2 since the deferred
payments were not paid to them on the due dates they were
entitled to claim interest @ 18% p.a. on the delayed payments as
had been agreed upon by the plaintiff and her father and on that
account a sum of Rs.16,79,819/- had also become payable to
th
them which they demanded vide their letter dated 20
September,1999 whereunder they had also expressed to complete
the sale transaction on payment of this interest amount and the
undisputed balance sale price of seven lacs but the plaintiff and
rd
her father refuted that liability by sending a notice dated 23
September, 1999 through an advocate. According to the plaintiff
there was no such agreement to pay interest. Since the plaintiff
and defendants 1 & 2 could not resolve the dispute regarding
interest payment the plaintiff filed this suit for a decree of specific
performance of the contract dated 30.9.1998 and for possession
CS(OS) 2423/99 4
of the suit property as also for compensation for the delay caused
in handing over the possession thereof.
3. In the written statement filed by defendants 1 and 2 they
have admitted execution of the existence of tri-partite agreement
as also the payment of ninety nine lacs of rupees to them by the
plaintiff. They however reiterated their stand that the plaintiff was
liable to pay interest on the delayed payments and since the same
was not paid the breach of the original contract and the novated
contract was committed by the plaintiff and so they were not
obliged to get the sale deed executed in favour of the plaintiff.
These defendants also took an objection regarding territorial
jurisdiction of this Court on the ground that since the property in
suit is in Gurgaon the suit could be filed there only in view of the
provisions of Section 16 CPC.
4. The defendant no.3 has chosen not to file any written
statement and its counsel made a statement to that effect on
CS(OS) 2423/99 5
17/03/2003 and the reason for that appears to be that this
defendant had already received the entire sale consideration which
it was to get under the original agreement to sell with other two
defendants and it must have been advised that it had to execute
the sale deed in favour of the plaintiff and it had nothing to do with
the fight between the plaintiff and defendants 1 & 2.
5. After filing of the written statement by defendants 1 & 2 they
had moved the present application under Order VII Rule 11 CPC for
rejecting the plaint on the ground that this Court had no territorial
jurisdiction to entertain this suit for specific performance of the
contract in respect the property in suit since it was in the State of
Haryana. The plaintiff filed her reply opposing the same. However,
before this application could be heard and disposed of the plaintiff
moved one application(being IA No.11610/2000) alleging therein
that a sum of Rs.99 lacs out of the total consideration of
Rs.1,06,00,000/- had been paid to defendants no. 1 & 2 and
balance she was ready to pay and the only dispute raised by these
two defendants was with regard to payment of interest amount for
CS(OS) 2423/99 6
which she was ready to give sufficient security and so possession of
the property in suit, which was at that time ready for occupation, be
got delivered to her from defendant no.3 who had not so far
handed over the same either to the plaintiff or to defendants 1 & 2
and the dispute about payment of interest between the plaintiff
and defendants could be decided by this Court in due course.
According to the plaintiff interest amount in any case worked out to
Rs.4,26,329/- which she was ready to deposit in Court. Reply to
that application of the plaintiff was filed only by defendants 1 & 2
and it was stated in the reply that the defendants were still willing
to perform the agreement dated 30/09/98 on payment of last
installment of Rs.7 lacs and upto date interest on the delayed
payment of instalments fixed for Rs.91 lacs. Otherwise, the
application was opposed inter-alia on the grounds that this Court
had no territorial jurisdiction in the matter and that since this Court
had upon an earlier application of the plaintiff under Order XXXIX
Rules 1 & 2 CPC restrained the defendants from alienating the suit
property till further orders the interest of the plaintiff was fully
protected and further that if at all the possession of the property
CS(OS) 2423/99 7
was ordered to be given to the plaintiff and that too without
payment of interest amount claimed by them that would amount to
decreeing the suit itself without disposal of the objection regarding
the territorial jurisdiction of this Court.
6. While allowing the said IA No.11610/2000 vide order dated
15/05/2001 this Court had observed as under:-
“……..They also do not contest the prayer of the plaintiff
for specific performance of Agreement to Sell dated
30.9.1998, subject to the condition that the entire
interest amount as payable according to them be paid.
The plaintiff has contested the liability towards
payment of interest……….Therefore, the controversy in
the suit is confined to the payment of interest only
…………………………………………………………………………………
……………….The admitted position which emerges is
that the plaintiff has paid substantial amount towards
sale consideration; that he is ready to pay the balance
consideration; that the dispute is in respect of interest
only and the defendants do not otherwise challenge
the plaintiff‟s claim for specific performance and that
the plaintiff is ready to secure the defendants‟ claim
qua interest. Having regard to these facts and
circumstances of the case, the application is allowed
subject to following conditions:
A. The plaintiff shall pay balance sale
consideration of Rs.7 lakhs to defendants 1
and 2 within 15 days.
B. The plaintiff shall deposit a sum of Rs.
20 lakhs in this Court within a period of 15
days. This amount is qua disputed interest
CS(OS) 2423/99 8
and if it is ultimately found that defendants
1 and 2 are entitled to interest, the
defendants would remain secured and
would receive the payment from the deposit
made.
C. Without prejudice to the contentions of
both the parties regarding payment of
interest and quantum thereof, defendants 1
and 2 shall be entitled to withdraw a sum of
Rs.4.5 lakhs subject to furnishing of
security to the satisfaction to the Registrar
of this Court.
D. Balance amount shall be kept by the
Registrar in a Bank in fixed deposit initially
for a period of one year.
The defendant no. 3 is directed to handover
the possession of the property to the
plaintiff.
Application stands disposed of.”
7. The defendants 1 & 2 challenged this order in appeal before
a Division Bench of this Court but their appeal(being FAO(OS)
271/2001) was dismissed in limine vide order dated 18/06/2001
which is re-produced hereunder:-
“From a perusal of the impugned order it is seen that it
is in the nature of a consent order. Learned Single
Judge has recorded that appellants did not otherwise
challenge the respondents “Claim for Specific
Performance” and that the respondent was ready to
secure appellants claim qua interest.
The impugned order sufficiently protects the
interest of the appellant as the sale consideration has
CS(OS) 2423/99 9
been directed to be paid to the appellant. Further the
respondent has been required to deposit the entire
amount of interest in court. We find no ground to
interfere with the impugned order in appeal, which
proceeds on the basis of consent and is fair just and
equitable.
Appeal is dismissed.”
8. The plaintiff had deposited in Court a sum of Rs.20 lakhs on
account of interest being claimed by defendants 1 & 2 and also
paid Rs.7 lakhs to defendants 1 & 2 being the balance of sale
consideration, pursuant to the aforesaid order dated 15/05/2001.
After the dismissal of their appeal against the order dated
15/05/2001 the defendants 1 & 2 withdrew a sum of Rs.4.5 lakhs
out of the interest amount deposited in Court. On 18/06/2001
itself, when the appeal was dismissed, the defendant no. 3 handed
over the possession of the property in suit to the plaintiff as it was
directed to do by this Court. It appears that the plaintiff thereafter
approached the defendant no.3 for executing the sale deed also
which it was supposed to execute in terms of the tri-partite
agreement between the parties and the defendant no.3 accepted
that request and executed a sale deed in favour of the plaintiff on
CS(OS) 2423/99 10
08/08/2001 and got it registered also on 10/08/2001. The case
thereafter was fixed for framing of issues and it also appears that
the defendants 1 & 2 must have realized that since defendant no.3
had already executed the sale deed in favour of the plaintiff the
prayer of specific performance of contract made in the suit by the
plaintiff stood satisfied and so thereafter they never asked for
disposal of their application under Order VII Rule 11 CPC which
they had filed in the year 2000. However, in the year 2005 the
defendants 1 & 2 once again filed an application under Order VII
Rule 11 CPC and Section 144 CPC, which is now being disposed of
by this order and in this application once again they have prayed
for rejection of the plaint on the ground that this Court has no
territorial jurisdiction to try this suit for specific performance of the
agreement to sell in respect of the immovable property situate in
Gurgaon. It has also been claimed in the application that the order
dated 15/05/2001 passed by this Court whereby possession of the
property in suit was ordered to be given to the plaintiff needed to
be recalled since no such direction could be given by this Court
because of lack of territorial jurisdiction and consequently the
CS(OS) 2423/99 11
possession of the property in suit was liable to be restored back by
the plaintiff and parties put in the same position as existed before
the passing of the order dated 15/05/2001.
9. This application has been opposed by the plaintiff inter alia
on the grounds that this application is an abuse of process of law
inasmuch as the possession of the property in suit was handed
over to the plaintiff after defendants had restricted their defence
only to their claim of interest and the same was recorded by this
Court in the order dated 15/5/2001 which is now sought to be
recalled. Another ground of opposition taken is that the relief of
specific performance of contract in any case does not survive since
the defendant no.3 itself, which only was to execute the title
document in favour of the plaintiff, has already executed the sale
deed also on 10/08/2001 and the issue which now remains for
decision is only the claim of interest being raised by defendants 1
& 2 and so the question of territorial jurisdiction also does not
survive.
CS(OS) 2423/99 12
10. I have heard the counsel for the defendants 1 & 2 and the
plaintiff. Learned counsel for defendants cited many judgments
also on the point of territorial jurisdiction of Courts in suits for
specific performance of contracts relating to immovable properties.
11. In my view from the foregoing narration of the factual
background of this case itself it becomes clear that this application
filed by defendant Nos. 1 and 2 is an abuse of process of law. As
noticed already, when the plaintiff‟s application for directions to the
defendant No.3 to handover possession of the suit property to her
was taken up for hearing the defendant Nos. 1 and 2 had claimed
that they were not challenging the plaintiff‟s claim for specific
performance of contract in respect of property in suit in case they
were paid the entire interest amount being claimed by them. In
the order dated 15.5.2001 it was categorically observed that the
dispute between the parties was in respect of interest only and
taking into consideration the fact that the defendant Nos. 1 and 2
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at that time had restricted themselves only to their claim of
interest, this court had passed an order directing defendant No.3 to
handover the possession of the suit property to the plaintiff. Even
though the defendant Nos. 1 and 2 had challenged that order
before the Division Bench, but the Division Bench also noticed the
fact that the said direction to defendant No.3 had been given in
view of the consent given on behalf of these two defendants.
Thereafter, as also noticed already, even though defendant No.3
was not directed to execute the sale deed in respect of suit
property, but on being approached by the plaintiff for the execution
of the sale deed in her favour the defendant No.3 executed sale
deed. In these circumstances, the plaintiff‟s claim, as far as
specific performance of contract by directing defendant No.3 to
execute the sale deed in respect of property in suit in favour of the
plaintiff and to handover the possession thereof stood satisfied.
Defendant Nos. 1 and 2 thereafter did not raise any objection
regarding the execution of the sale deed in favour of the plaintiff by
defendant No.3 which shows that it had really nothing to object to
that act of defendant No.3. I am in full agreement with the
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submission of learned counsel for the plaintiff that since claim of
the plaintiff for specific performance of contract stands fully
satisfied, the only dispute which this court now has to resolve is
with regard to the claim of interest of defendant Nos. 1 and 2
against the plaintiff and for deciding that controversy this court
certainly has the territorial jurisdiction. There is no doubt that in all
the judgments cited by learned counsel for defendant Nos. 1 and 2
it had been held that suit for specific performance of contract in
respect of immovable property would lie only before that court
within whose jurisdiction the property is situated, but now that in
the present case that claim of the plaintiff no longer survives for
adjudication having been satisfied by the defendants themselves,
the present application filed by defendant Nos. 1 and 2 for
rejecting the plaint is without any merit and so liable to be rejected.
I.A. No. 9747/2005 is accordingly rejected with costs of
Rs.10,000/-.
May 26, 2008 P.K.BHASIN, J.
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