HC Madras (2024.08.14) in V.C. Thangamagan Vs. K. Ganesh and Anr. [(2024) ibclaw.in 854 HC, C.R.P.(PD).No.3275 of 2024 and C.M.P.No.17519 of 2024] held that;
Section 18 itself specifically states that this remedy is “without prejudice to any other remedy available”. This makes it clear that an option is given to the allottee either to proceed under the RERA Act or approach the regular Civil Court etc. The respondents/plaintiffs has elected to approach the Civil Court for recovery of money. The Civil Court’s jurisdiction is plenary, unless and until it specifically excluded, by a legislation.
Section 18 makes it clear that in addition to the remedy that may be given to a party by the authority under the RERA Act, he can resort to other remedies. Therefore, the jurisdiction of the Civil Court is not ousted by virtue of Section18 read with Section 79.
In the said judgment, a Division Bench of this Court had specifically held that the provisions of Sections 12, 14, 18 and 19 would apply only in case of projects registered with the authority under the Act. In this case, the project being less than 500 sq.meters is exempted by virtue of Section 3(2).
Applying the judgment of the Division Bench to the facts of this case, the learned Trial Judge has rightly come to a conclusion that the RERA Act is not a bar for filing a suit for recovery of money.
Excerpts of the Order;
This Civil Revision Petition arises against the order passed by the learned XVII Additional City Civil Court at Chennai in I.A.No.6 of 2023 in O.S.No.1874 of 2022, dated 09.02.2024.
# 2. O.S.No.1874 of 2022 was presented as an under chapter suit. It is not in dispute that the petitioner/defendant took out an application for leave to defend and the leave was also granted. He has filed a detailed written statement. Thereafter, he has filed an application in I.A.No.6 of 2023 seeking for the Court to decide the preliminary issue and to reject the plaint. This application is based on Sections 9 and 16 of the Code of Civil Procedure. The learned Trial Judge received a counter from the respondents/plaintiffs and dismissed the application. Against which, the present petition is filed.
# 3. Heard Mr.G.Ramadurai, learned Counsel for the civil revision petitioner.
# 4. Mr. G.Ramadurai would submit that_
(i) The City Civil Court does not have territorial jurisdiction to deal with the suit as the property is situated within the jurisdiction of Kancheepuram district;
(ii) The suit is barred by virtue of Section 79 read with Section 18 of the Real Estate (Regulation and Development) Act, 2016 (for brevity ‘RERA Act’).
# 5. Expanding this argument, he would submit that when an authority has been created to deal with an issue between the developer and customer, the appropriate remedy is only before the authority created under the RERA Act and not before the Civil Court.
# 6. For decision on rejection of plaint, the cause of action has to be decided on the basis of a reading of the plaint alone. The defence of the petitioner/defendant is totally irrelevant for that purpose. Paragraph No.17 of the plaint specifically pleads that the respondent/plaintiff had agreed to purchase a flat from the petitioner/defendant at Chennai. He would plead that he had paid a sum of Rs.11,00,000/- to the petitioner/defendant in Chennai. Apart from that, the petitioner/defendant is residing within the jurisdiction of the City Civil Court at Kodambakkam in Chennai. Therefore, the argument with respect to territorial jurisdiction can be put an end since the respondents/plaintiffs has specifically pleaded that a part of the cause of action is within the jurisdiction of this Court. Further, a plaint cannot be rejected for want of territorial jurisdiction. This is clear from Section 21 of the Code of Civil Procedure. The petitioner/defendant would have to prove when he takes a plea on objection of territorial jurisdiction that the Court does not have jurisdiction, but also has to prove consequent failure of justice. Section 21(1) of the Code of Civil Procedure demands both to be satisfied. The objection should have been taken at the earliest available opportunity. In this case, the earliest available opportunity for the petitioner/defendant was when he filed an application for leave to defend. This plea was not taken at that stage and therefore, it is not open to the petitioner/defendant to raise that objection after he has enjoyed the benefit of leave to defend being granted and after having filed a written statement on merits of the case.
# 7. Insofar as the plea on Sections 79 and 18 is concerned, a mere glance at Section 18 would show that in case the promoter fails to complete the project or fails to give possession of an apartment as agreed upon, he will be liable to pay to the allottee, the amount received by him for the sake of the said apartment together with compensation. Section 18 itself specifically states that this remedy is “without prejudice to any other remedy available”. This makes it clear that an option is given to the allottee either to proceed under the RERA Act or approach the regular Civil Court etc. The respondents/plaintiffs has elected to approach the Civil Court for recovery of money. The Civil Court’s jurisdiction is plenary, unless and until it specifically excluded, by a legislation.
# 8. As pointed out above, Section 18 makes it clear that in addition to the remedy that may be given to a party by the authority under the RERA Act, he can resort to other remedies. Therefore, the jurisdiction of the Civil Court is not ousted by virtue of Section18 read with Section 79.
# 9. Apart from that, the learned Trial Judge has rightly appreciated the position of law laid down by this Court in C.M.S.A.Nos.23 and 24 of 2023, dated 20.09.2023. In the said judgment, a Division Bench of this Court had specifically held that the provisions of Sections 12, 14, 18 and 19 would apply only in case of projects registered with the authority under the Act. In this case, the project being less than 500 sq.meters is exempted by virtue of Section 3(2). Applying the judgment of the Division Bench to the facts of this case, the learned Trial Judge has rightly come to a conclusion that the RERA Act is not a bar for filing a suit for recovery of money.
# 10. In the light of the above discussion, I do not find any reason to interfere with the order of the learned Trial Judge. This Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
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