1238

IN THE

LEARNED DISTRICT COURT OF DELHI

AT DELHI, N.C.T. OF DELHI

_____________________________________________________________________________________

IN THE MATTER OF

MR. MURALIDHAR PANDEY

PLAINTIFF

v.

A.B.C. GLOBAL LIMITED

DEFENDANT

Civil Suit No.:- XXX/2015

___________________________________________________________________________

[MEMORIAL ON BEHALF OF THE DEFENDANT]

 TABLE OF CONTENTS

STATEMENT OF FACTS ...................................................................................................... iii

INDEX OF AUTHORITIES..................................................................................................... iv
STATEMENT OF JURISDICTION.......................................................................................... v
ISSUES FOR CONSIDERATION ........................................................................................... vi
SUMMARY OF ARGUMENTS .............................................................................................vii
ARGUMENTS ADVANCED ................................................................................................... 1
A. The main operative part of Section 16(d) of the Code of Civil Procedure applies to the
current dispute and not the proviso. ....................................................................................... 1
B. Sections 20 and 21 of the Code of Civil Procedure do not apply in the current case. .... 2
PRAYER FOR RELIEF ............................................................................................................ 4

ii
 STATEMENT OF FACTS

Plaintiff, Mr. Muralidhar Pandey entered into a plot buyer agreement with ABC Global

Limited, on May 24, 1985 for purchase of a residential plot in Gurgaon, Haryana.

ABC Global Limited cancelled the agreement on April 04, 1987 because the plaintiff had not

paid dues towards construction of Modular. The plaintiff then sent a legal notice to

defendants to perform their part of contract. The plaintiff, in the circumstances, filed Suit on

the Original Side of the High Court of Delhi.

The High Court of Delhi granted interim injunction in favor of the plaintiff. The Defendant

then filed a written statement. In view of increase in pecuniary jurisdiction of the District

Court, Delhi, the suit was transferred from High Court of Delhi to District Court, Delhi . On

February 17, 1997, the trial court framed issues excluding jurisdiction because so far it wasn’t

contested.

Then the defendant filed an application under Order 6, Rule 17 of the Code of Civil

Procedure, and 1908 seeking amendment in the written statement by raising an objection as

to jurisdiction of Delhi Court to entertain the suit.

iii
 INDEX OF AUTHORITIES
Cases

Harshad Chiman Lala Modi v. DLF Universal and Anr AIR 2005 SC 4446 ........................................ 1
Mantoo Sarkar v. Oriental Insurance Ltd. AIR 2009 SC 1022. ............................................................. 3
Official Trustee v. Sachindra Nath AIR 1969 SC 823........................................................................... 1
Pulikat Estate v. Joseph (1955) 2 MLJ 228. ........................................................................................... 2
Ramani v. Narayanaswami (1924) Mad 697 ......................................................................................... 3
State v. Sarvodaya Industries AIR 1975 Bom 197. ................................................................................ 2
Tamil Nadu Cements Ltd v Balakrishnan and Anr AIHC 3698 Mad ..................................................... 2

Statutes

§16,Code of Civil Procedure ,1908........................................................................................................ 1

§20, Code of Civil Procedure, 1908........................................................................................................ 2
§21, Code of Civil Procedure, 1908........................................................................................................ 2

Treatises

Mulla ,“The Code of Civil Procedure”, (15th ed. 2012 ........................................................................... 1

iv
 STATEMENT OF JURISDICTION

The suit has been filed by the plaintiffs under sections 6,9,15 and 20 of the Code of Civil

Procedure,1908 but the Defendant most humbly and respectfully does not submit to the

jurisdiction of this Learned District Court at Delhi and hence the Defendant challenges the

maintainability of the Suit before this Learned Court by filing an Application under Order 6,

Rule 17 of the Code of Civil Procedure, 1908, by seeking an amendment in the Written

Statement.

v
 ISSUES FOR CONSIDERATION

A. Whether the main operative part of Section 16(d) of the Code of Civil Procedure

and the proviso applies to the current dispute or not.

B. Whether Sections 20 and 21 of the Code of Civil Procedure apply or not in the

current case.

vi
 SUMMARY OF ARGUMENTS

A. The main operative part of Section 16(d) of the Code of Civil Procedure

applies to the current dispute and not the proviso.

Since Section 16 of the code applies for the current dispute it means that

jurisdiction of the court will be determined by where the cause of action arises. In

this case the cause of action arises in Gurgaon hence the district court of Gurgaon

will have competency to hear the dispute and not the Delhi district court. With

respect to the proviso previous cases have held that cases where Section 16(d)

applies there the proviso does not apply.

B. Sections 20 and 21 of the Code of Civil Procedure do not apply in the current

case.

In the current case Section 20 will not apply since it applies only in cases where

sections 16 and 19 don’t apply and in this case section 16(d) does. With respect to

section 21 previous precedents set by the various courts have stated that objections

as to jurisdiction can be raised at any time of the dispute, hence even though there

is a delay on the side of the defendant even then the objection is valid.

vii
 ARGUMENTS ADVANCED

A. The main operative part of Section 16(d) of the Code of Civil Procedure

applies to the current dispute and not the proviso.

The current dispute refers to the competency of the district court of Delhi to hear

the current dispute .The suit in question was a suit for declaration, specific

performance and possession of immovable property that was first filed before the

Delhi High Court and then transferred to the Delhi district court due to increase in

pecuniary jurisdiction of the district court1. Section 16 of the code of civil

procedure2 is one of the group of sections that relates to the territorial jurisdiction

of a Civil Court and refers over which the court enjoys influence 3, whereas the

proviso states that a suit can be filed within the local limits of the jurisdiction

where the defendant actually or voluntarily resides with the obedience of the

defendant, carries on business or works for gain in.

Since the suit is for the aforementioned purposes hence section 16(d) of the code

will apply which deals with the determination of any right or interest in

immovable property4.This section was also applied by the Supreme Court in the

case of Harshad Chiman Lala Modi v. DLF Universal and Anr5 which had an

identical fact scenario. If a court does not enjoy jurisdiction to entertain the suit

then any order passed by it will be null and void6. Since the cause of action has

1
¶1, Proposition.
2
§16,Code of Civil Procedure ,1908.
3
Mulla ,“The Code of Civil Procedure”, (15th ed. 2012 pg 143).
4
Supra at 2.
5
Harshad Chiman Lala Modi v. DLF Universal and Anr AIR 2005 SC 4446.
6
Official Trustee v. Sachindra Nath AIR 1969 SC 823.

1
 arisen in Gurgaon 7hence the district court in Gurgaon will have the jurisdiction to

entertain the matter and not the District Court in Delhi.

With respect to the proviso in Section 168. The proviso cannot be used to enlarge

the scope of the main clauses and only applies if the suit falls under one of the

categories mentioned in the section and complete relief can be granted by

compelling the obedience of the defendant to the decree9 . The Madras High Court

in Tamil Nadu Cements Ltd v Balakrishnan and Anr10 held that cases where

section 16(d) applies the proviso does not apply the same was also held by the

Supreme Court in the Harshad Chiman Lala Modi Case11which has as stated

before an identical fact scenario.

B. Sections 20 and 21 of the Code of Civil Procedure do not apply in the current

case.

In the current case the competency of the district court of Delhi to entertain the

current matter is being called into question. Section 20 states suits should be

instituted in the place where cause of action has arisen or where the defendant

resides or carries out his business12. Section 21 states that objections as to

jurisdiction should be raised at the earliest possible time13. Section 20 of the code

only applies in places where sections 16 and 19 of the code do not apply14. The

7
Supra at 1.
8
Proviso §16,Code of Civil Procedure ,1908.
9
Pulikat Estate v. Joseph (1955) 2 MLJ 228.
10
Tamil Nadu Cements Ltd v Balakrishnan and Anr AIHC 3698 Mad.
11
Supra at 5.
12
§20, Code of Civil Procedure, 1908.
13
§21, Code of Civil Procedure, 1908.
14
State v. Sarvodaya Industries AIR 1975 Bom 197.

2
 Supreme Court in previous cases has held it as a residuary provision15 In the

current case as stated before section 16(d) of the Code of Civil Procedure applies

hence section 20 of the code of civil procedure will not apply for the current case.

With respect to Section 21 the general rule is that objection to jurisdiction can be

taken at any stage of the proceedings provided that there are materials on the

record to support it16. According to Supreme Court objections as to jurisdiction

can be taken at any time can be taken at any time and stage i.e before the final

judgement is delivered if it pertains to the subject matter of the suit 17. Hence even

if there has been a delay by the defendants in raising an objection as to the

jurisdiction hence in the current case it has only been raised at the preliminary

stages of the framing of issues and hence section 21 of the code will not apply in

this case.

15
Supra at 5.
16
Ramani v. Narayanaswami (1924) Mad 697.
17
Mantoo Sarkar v. Oriental Insurance Ltd. AIR 2009 SC 1022.

3
 PRAYER FOR RELIEF

Wherefore in the light of the facts stated issues raised, arguments advanced and authorities

cited it is most humbly and respectfully prayed before this Learned District Court to:

1) Return the plaint for presentation in the proper court.

2) Pass any other order the Learned Court deems fit in the interests of justice and good

conscience.

Date: 26th August 2015

Place: Delhi.

Counsel for the Defendants.