Decided on July 20,2007



SANJIV KHANNA, J - (1.) As similar legal issues arise for consideration in the present appeals, viz. FAO(OS) No. 4/1998 Ms. Prakash Kaur versus K.G. Ringshia and Everest Construction Company versus Ms. Prakash Kaur in FAO(OS) No. 213/1990, they are being disposed of by this common order. The question raised in the present appeals is regarding territorial jurisdiction of the courts in Delhi to entertain the suits for declaration filed by the respondent in FAO(OS) No. 213/1990 and the appellant in FAO(OS) No. 4/1998. The appellant in FAO(OS) No. 4/1998 and the respondent in FAO (OS) No. 213/1990 is the same person namely Ms. Prakash Kaur, now represented by her legal representatives. The question pertaining to territorial jurisdiction has been decided on the preliminary objection raised by the appellant in FAO(OS) No. 4/1998 and respondent in FAO(OS) No. 213/1990. It may be stated here that parties had not led evidence and the aforesaid question was decided by the learned Single Judge on the basis of the facts and averments made in the plaint itself. At this stage and for deciding the present appeals, the averments and facts stated in the written statement are irrelevant and cannot be taken into consideration. Facts in FAO(OS) No. 213/1990
(2.) Ms. Prakash Kaur in 1989 filed the suit for declaration in the Delhi High Court, which now stands transferred to District Court against Everest Construction Company, the appellant herein. The appellant is a partnership firm having its office at Bombay. It does not have any office at Delhi. As per the averments made in the plaint, the respondent or Ms. Prakash Kaur had entered into an agreement dated 13th October, 1981 with the appellant. The agreement was executed at Bombay, now known as Mumbai. As per the said agreement, the appellant had agreed to sell to Ms. Prakash Kaur, a flat described as 606 on 6th floor of the building proposed to be constructed by the appellant at Prabha Devi in Mumbai. The building was to be called Resham Tower. It is claimed in the plaint that the total consideration for purchase of the flat is Rs.2,32,875/- to be paid in 14 installments. Ms. Prakash Kaur claims that she has paid Rs.12,875/- on two different dates as per receipts issued. It is further stated that Ms. Prakash Kaur shifted from Mumbai to Delhi and intimation was given to the appellant and her new address was furnished vide letter dated 13th July, 1982. The construction had remained stalled due to some difficulties and in January, 1987 construction re-started and at that time Ms. Prakash Kaur had sent a demand draft of Rs.50,000/- by registered letter dated 28th January, 1987 to the appellant towards on account payment. The said demand draft was not returned back by the appellant and remained with the appellant. Ms. Prakash Kaur thereafter wrote another letter dated 24th/28th December, 1987 to the appellant to which a reply dated 28th January, 1988 was received from the appellant denying existence of any agreement between the parties and the demand draft of Rs.50,000/- was sent back along with the letter. Thereafter, some correspondence exchanged between the parties including legal notices. Not being satisfied, Ms. Prakash Kaur filed the suit for declaration in Delhi. By the said suit, Ms. Prakash Kaur sought declaration that letters dated 28th January, 1988 and 21st December, 1988 written by the appellant herein denying existence of agreement between the parties are null and void and of no effect and the agreement dated 13th October, 1981 continues to remain operative and binding on the parties. Paragraphs 19 and 21 of the plaint are relevant for the purpose of deciding the present appeal and read as under:- "19. That the cause of action arose on 13th October, 1981 when the Agreement was entered into between the Plaintiff and the Defendant and from time to time thereafter and finally on 21st December, 1988 when the Defendant by his letter informed the Plaintiff that no agreement had been entered into between the parties. 21. That the cause of action substantially and materially arose at Delhi where the letters dated 28th January 1988 and 21st December 1988 written by the Defendant to the Plaintiff denying the existence of the Agreement were received. This Hon'ble Court has, therefore, jurisdiction to entertain and try the suit".
(3.) It may be relevant to state here that it is an admitted case of the parties that the building in question mentioned in the agreement has not been constructed by the appellant and possession and title of the flat cannot be transferred and passed on to any person including Ms. Prakash Kaur.;

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