ASHOK JAIN Vs. AJAY ENTERPRISES PVT LTD
LAWS(DLH)-2007-9-119
HIGH COURT OF DELHI
Decided on September 18,2007

ASHOK JAIN Appellant
VERSUS
AJAY ENTERPRISES PVT.LTD Respondents

JUDGEMENT

S.N.AGGARWAL, J. - (1.) This order shall dispose of an application under Order 7 Rule 11 CPC filed on behalf of the defendant No. 1 for rejection of the plaint of the present suit for want of territorial jurisdiction of this Court to entertain the present suit.
(2.) The plaintiffs had entered into a Flat Buyer Agreement with defendant No. 1 agreeing to purchase a flat to be constructed by defendant No. 1 at Faridabad. The plaintiffs have filed the present suit for permanent and mandatory injunction with the following prayers:- A. Pass a decree for permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, employees, assigns, attorney etc or any person acting on their behalf from in any way canceling the booking of the plaintiffs in respect of the premises in question i.e. apartment being Flat No. 901, 9th Floor, royal Retreat II Luxury Flats (Air-conditioned), Charm Wood Village, Suraj Kund Road, Faridabad, more specifically shown in RED in the site plan attached and/or creating any third party rights in any part or whole of the premises in question in any manner whatsoever. B. Pass a decree for mandatory injunction in favour of the plaintiffs and against the defendants thereby directing stages of construction, schedule for payment of installments (construction based) schedule, date of delivery of possession and the formalities required to be completed in pursuance to confirm books dated 25.04.2005 for sale of premises in question and further to complete such formalities in respect of the premises in question i.e. Flat No. 901, 9th Floor, royal Retreat II Luxury Flats (Air-conditioned), Charm Wood Village, Suraj Kund Road, Faridabad. C. The cost of the suit be also awarded to the plaintiffs as against the defendants. D. Such other further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case may also be passed in favour of the plaintiffs and against the defendants.
(3.) It is not in dispute that the plaintiffs had entered into a Flat Buyer Agreement with defendant No. 1 on 25.04.2005. The said Agreement is at pages 1 to 4 of the documents file (Part III file). The counsel appearing on behalf of defendant No. 1 has relied upon a judgment of the Hon'ble Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Anr, (2005) 7 SCC 791 in support of his arguments that the proviso of Section 16 (d) of the CPC would not be attracted in the present case and that this Court cannot decide the rights or interest of the parties in the immovable properties situated outside the jurisdiction of this Court. Mr Jain appearing on behalf of the plaintiffs has argued that the decree as prayed for by the plaintiffs in the present suit if granted can be enforced by personal obedience of the officials of defendant No. 1 and therefore according to him proviso to Section 16 (d) CPC would apply and this Court will have the jurisdiction to try the present suit. A bare look to the second prayer made by the plaintiffs in the present suit would show that the plaintiffs in substance are asking for specific performance of the Flat Buyer Agreement executed between the parties on 25.04.2005. The Agreement which is pages 1 to 4 of the document file (Part III file) would show that the said Agreement executed between the parties was a comprehensive Agreement which deals with delivery of possession as well as execution of sale deed in respect of the flat agreed to be purchased by the plaintiffs from defendant No. 1. Clause 12 and 14 at page of the said Agreement are relevant and the same are reproduced here-in-below:- "12) The company shall endevour to give the possession of the unit to the intending allottee(s) within committed period subject to force majeure circumstances and on receipt of all payments as per installment plan from the date of booking and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him/her. The company on completion of the construction shall isse final call notice to the intending allottee(s), who shall within 30 days thereof, remit all dues and take possession of the unit in the event of his/her failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit and shall bear all maintenance charges and any other levies on account of the allotted unit. 14) The Sale Deed shall be executed and got registered in favour of the intending allottee(s) within the reasonable time after the completion of the development work/construction at the site and after receipt fromhis/her full price and other connected charges. Cost of stamp duty and registration/mutation, documentation charges etc. as applicable will be extra and shall be borne by the intending allottee(s). The intending allottee(s) shall pay as and when demanded by the Company, Stamp Duty and Registration Charges/Mutation Charges and all other incidental and Legal Expenses for execution and registration of sale deed/mutation of the unit in favour of the intending allottee(s).;


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