Vineet Aggarwal vs Brijbala and Another

Vinod K. Sharma, J.—This revision petition under Article 227 of the Constitution of India, is directed against the order dated 27.2.2010 (Annexure P-7), vide which the application moved by the petitioner u/s 20 of the CPC for return of the plaint, has been dismissed.

The plaintiff/respondent, filed a suit for recovery against defendant No. 1 and Vineet Aggarwal, Managing Director, Acumen Securities Ltd., for recovery of a sum of Rs. 5,17,651.50 (Rupees five lac seventeen thousand six hundred fifty one and fifty paise). It was pleaded by the plaintiff in the plaint, that the plaintiff was dealing with defendant No. 1 in the business of shares under the name and style of "Tribhuvan Investment". It was the case of the plaintiff/respondent, that defendant No. 1 was an authorised agent of defendant No. 2 and defendant No. 1 did all the acts in dealing with the shares on behalf of defendant No. 2. In para No. 3 allegations were made against defendant No. 1, with regard to embezzlement of the funds, which were claimed to be due to the plaintiff/respondent. The plaintiff claimed that the cause of action had accrued to her when the accounts were settled between the parties and amount was found due.

On notice the defendant/petitioner appeared and filed written statement. Initially, the petitioner herein moved an application for stay of the suit, by claiming that there was an arbitration agreement between the parties and the suit, therefore, could not proceed. The application was dismissed.

When the case was at rebuttal stage, an application was moved by the petitioner u/s 20 of the Code of Civil Procedure, seeking direction to the plaintiff, to take back the plaint for presentation in the appropriate Court having jurisdiction to adjudicate the matter. The plea raised in the application was, that the company was having its registered office at Delhi and did not have my branch office in Kurukshetra, and furthermore defendant No. 1 was not its agent. The Court at Kurukshetra did not have territorial jurisdiction to entertain and try the suit, which deserved to be returned, for presentation in Court of competent jurisdiction.

Section 20 of the CPC reads as under:

Other suits to be instituted where defendants reside or cause of action arises.- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction:

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiescence in such institution; or

(c) the cause of action, wholly or in part, arises.

The learned trial Court dismissed the application.

The learned Counsel for the petitioner vehemently contends, that the impugned order cannot be sustained for the reason, that M/s Acumen Securities Ltd. is a company registered under the Companies Act, having its registered office at Delhi and, therefore, the petitioner could not be sued at Kurukshetra, as no cause of action, was disclosed against the petitioner, to have occurred at Kurukshetra.

It is also the contention of the learned Counsel for the petitioner, that u/s 20(b) of the Code of Civil Procedure, in absence of leave of the Court, to proceed against defendant No. 2, the plaint was liable to be returned. The learned Court below committed an error in rejecting the application.

It is also the contention of the learned Counsel for the petitioner, that reading of the plaint does not disclose any cause of action against the petitioner herein. Therefore, the learned Court could not have dismissed the application moved under Order 7 Rule 11 of the Code of Civil Procedure, as the petitioner could move the application at any stage of the proceedings.

Learned Counsel for the petitioner further contended, that except for para 1, there are no averments made in the plaint, which may disclose the cause of action against the petitioner.

It is also the contention of the learned Counsel for the petitioner, that there is no supporting document in support of the assertions made in para 1.

In support of the contentions referred to above, the learned Counsel for the petitioner placed reliance on the judgment of the Hon''ble Supreme Court in Hari Shankar Jain Vs. Sonia Gandhi, , wherein the Hon''ble Supreme Court has been pleased to lay down, that it is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition, if it does not disclose a cause of action. To enable the Court to reject the plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else.

The learned Counsel for the petitioner also placed reliance on the judgment of the Hon''ble Supreme Court in Sopan Sukhdeo Sable v. Assistant Charity Commissioner J.T. 2004 (1) S.C. 515, wherein the Hon''ble Supreme Court was pleased to lay down, that the trial Court has the power to reject the plaint, which is barred by law, but only part of the plaint cannot be rejected. In case, no cause of action is disclosed, the plaint as a whole is to be rejected. Under Order 7 Rule 11 of the Code of Civil Procedure, particular portion of the plaint cannot be rejected.

The learned Counsel for the petitioner also contends, that the power to return the plaint vests with the Court at any stage.

On consideration, I find no force in the contentions raised by the learned Counsel for the petitioner. The reading of Section 20(b) of the Code of Civil Procedure, on which strong reliance has been placed by the petitioner, would show that one of the ground on which the case can be proceeded against the defendant not residing within the jurisdiction of the Court, is a ground of acquiescence.

It is not disputed that the case is at rebuttal stage and the defendant/petitioner has already filed written statement. Even if for the sake of arguments, it is taken that the Court has no jurisdiction to entertain and try the suit, the case is otherwise covered u/s 20(c) of the Code of Civil Procedure, as the plaint discloses the cause of action to have accrued at Kurukshetra. It is pleaded in the plaint that defendant No. 1 is an agent of defendant No. 2. It was for the plaintiff to prove this fact. But in view of the judgment relied upon by the petitioner in Hari Shanker Jain v. Sonia Gandhi (supra), this Court, while dealing with an application Under Order 7 Rule 11 of the Code of Civil Procedure, is only to see the averments made in the plaint and not the defence raised by the defendant. The reading of para 1 of the plaint would show that cause of action was shown to have been arisen at Kurukshetra, against both the defendants by making a specific averment, that defendant No. 1 has been dealing on behalf of defendant No. 2 as his agent.

At the sake of repetition, it is mentioned again that it was for the plaintiff to prove the agency, but the Court certainly could not return the plaint on the basis of defence raised by the petitioner at the stage of rebuttal evidence, by moving an application u/s 20 of the Code of Civil Procedure.

The fact that the petitioner chose to move an application under Arbitration Act for stay of proceedings prima facie lead to the conclusion that there was dealing with defendant No. 2 of the plaintiff, as in absence of an arbitration agreement between the parties, it was not open to defendant No. 2 to have moved any application for stay of the suit as contended.

The learned Counsel for the petitioner also contends that the proceedings against defendant No. 2 could have been continued only with the leave of the Court.

This contention is totally mis-conceived. In view of the findings recorded above, u/s 20(c) of the Code of Civil Procedure, the suit can be filed even against the defendant not residing within the jurisdiction of the Court on the basis of cause of action.

Once, it was pleaded in the plaint that transaction between the parties had taken place within the jurisdiction of the Court, it cannot be said that the Court did not have the territorial jurisdiction as contended. The objection regarding territorial jurisdiction is required to be taken at the first instance and not at rebuttal stage.

Learned Counsel for the petitioner also referred to the letter, on which strong reliance was placed by plaintiff, to contend, that this letter was not by defendant No. 2, therefore, it could not advance the case of the plaintiff, as pleaded in the plaint.

As already observed above, this again cannot be a ground for return of the plaint, as it would be for the Court to appreciate the evidence and record finding on merit.

No merit. Dismissed.

Copy of this order be given dasti on payment of requisite charges.